In re Adamar
Filed 7/2/12 In
re Adamar CA2/1
Opinion on remand from Supreme Court
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re
MICHAEL ADAMAR
on Habeas
Corpus.
B223279
(Los Angeles County
Super. Ct. No.
BH006554)
ORIGINAL PROCEEDING; petition for a
Michael Adamar, in pro. per., and
Richard Darington Pfeiffer, under appointment by the Court of Appeal, for
Petitioner.
Edmund G. Brown, Jr., Attorney General,
Julie L. Garland, Senior Assistant Attorney General, Phillip Lindsay,
Supervising Deputy Attorney General, Amy M. Roebuck and Jennifer Cano, Deputy
Attorneys General, for Respondent.
_________________________________
On June 6, 1996, a jury convicted petitioner Michael Adamar of second degree murder
and assault by means of force likely to produce great bodily
used a knife in the commission of the murder.
The trial court sentenced him to an indeterminate term of 18 years to
life. At Adamar’s initial parole hearing, conducted on January 16, 2009, the Board of Parole
Hearings (Board) denied parole. Adamar filed a
petition for a writ of habeas corpus contending that the Board’s
decision violated due process because
it was not supported by evidence demonstrating that he would currently be a
danger to the public if released on parole.
In our first opinion on Adamar’s
petition for a writ of habeas corpus, we concluded that the Board’s finding
that Adamar remained a public safety risk lacked any evidentiary support, and
we granted the petition. (
The California Supreme Court granted the Attorney General’s petition for
review, which argued that we incorrectly applied the “some evidenceâ€
standard. After deciding
transferred the matter back to us with a direction to reconsider our decision
in light of Shaputis II. Applying Shaputis
II, we conclude that the Board’s finding that Adamar remains a public
safety risk lacks any evidentiary support, is arbitrary, and violates
due process. Accordingly,
we grant his petition for a writ of habeas corpus.
A. Commitment Offense
light most favorable to the judgment, reveals the following: Adamar was a member of a tagging crew called
DYP. On the night of October 22, 1994, Adamar, then 18 years old, attended a flyer party with other DYP
members. Fourteen-year-old Jose Chavez
and other members of a dancing or party crew known as the Layzees also attended
the party, as did other party crews and a group of Cal State Northridge
students calling themselves PGA. Juan
Salvador was a member of the latter group.
At some point during the party, members of the various “crews†present,
including the DYP and the Layzees, shouted out the names of their groups. Chavez yelled, “Fuck DYP.†This apparently elicited no retaliation.
Later,
Chavez approached Ovando Ramos and another person outside the party and stated,
“Fuck DYP.†Ramos replied that he was
not from DYP, and Chavez retorted, “Fuck where you are from.†Ramos struck Chavez, who fell to the ground
just as a group of DYP members who had left the party returned in cars and on
foot. They had been alerted by DYP
member Eric Hornquist, who approached them as they stood near their cars and
told them that one of the Layzees was saying “fuck DYP†and “fucking†with
Hornquist’s brother. Several members of
the DYP group, including Adamar and his codefendant Brian James, said, “Let’s
go fuck ‘em up,†meaning they should go back and fight the culprits. Adamar, James, and the rest of the DYP group
returned to the party’s location by car.
They arrived just as Ramos struck Chavez.
Adamar,
James, Michael Sperling, and Tremaine Bargeman got out of their cars and joined
in, punching and kicking Chavez. Chavez
lost consciousness. Salvador intervened
by jumping on Sperling, and the DYP group, including Adamar and James, began
punching and kicking Salvador. James
stabbed Salvador on the left side of the ribcage while several other people,
including Adamar, continued to punch and kick Salvador. A couple of people shouted out “DYP†during
the assault. A crowd including members
of the Layzees and the PGA began to approach.
Bargeman pointed a gun at the crowd and told them to stay back. Adamar was behind Salvador and stabbed him in
the shoulder area of his back. Salvador
died of multiple stab wounds. The
medical examiner classified two of the three stab wounds to Salvador’s back and
the stab wound to his left ribcage as potentially fatal. Adamar got into a car with other members of
DYP. Someone asked him, “Did you shank
him?†Adamar replied, “Yeah,†or “Yeah. I shanked him.†Adamar was sentenced to an indeterminate term of 18 years to life with credit for 730 days.
As
stated, our summary of the commitment offense is based upon the trial record in
Adamar’s appeal, B104284. It must be
noted that the appellate opinion included factually unsupported descriptions of
the circumstances attending the offenses.
For example, the opinion stated that Adamar boasted that he “shankedâ€
the victim. Our examination of the
reporter’s transcript of Adamar’s trial reveals no testimony that Adamar’s tone
of voice or any other circumstance suggested that his response when asked if he
shanked Salvador was a boast. Another
factually unsupported statement is the following: “While the group chanted ‘DYP,’ Adamar and
James stabbed Salvador with their knives, killing him.†In actuality, three witnesses testified they
heard one person or “a couple†of people shout “DYP†at some point during the
assault on Salvador. It is inaccurate
and misleading to characterize an isolated shout or two at some point during an
assault as “chanting†during the stabbing.
With the filing of this opinion, the Board, Governor, Attorney General,
and any psychologist or psychiatrist evaluating Adamar for parole suitability
are on notice that they cannot rely upon the appellate opinion filed October
17, 1997, in case number B104284 as an accurate portrayal of the commitment
offense. They should instead rely upon
the description of the offense set forth in this opinion.
At
his parole hearing, Adamar explained that he “was in a street fight†and “was
fighting Jose Chavez and heard my friend, Mike Sperling, former friend, Mike
Sperling . . . being beat up by Juan Salvador, I ran over there, and
I looked at the house, and there [were] more Layzees coming out of the house,
so my rational thought was hey, I need to get Mike up out of here because we’re
outnumbered, and the fastest way I thought I could do it was maybe stabbing him
in the shoulder, where I did, in the right shoulder to get some reaction to
move him. Instead of pushing him.†Adamar continued, “[M]y mind wasn’t there. My rational thoughts weren’t there at the
time. I felt that, you know, if you
don’t get out of here, man, we’re probably — we’re obviously going to be
victims, going to be beat up.†Adamar
stated, “I just wanted to get him off my friend,†“but what I should have done
was pushed him or even tackled him or something in that nature
. . . .â€
The
Board grilled Adamar over differences between his account of the crimes and
that set forth in the appellate opinion (B104284), including whether he boasted
about stabbing Salvador. It also
challenged him about a contention raised by appellate counsel on appeal
(challenging the trial court’s refusal to include among the heat of passion
instructions it gave an additional instruction defining the types of emotions
that could constitute heat of passion), asking why “[i]n the appellate decision
you [sic] indicated that you felt
this crime was done in the heat of passion.â€
Adamar responded that although he did not know much about law, he
thought a street fight qualified as heat of passion.
Adamar
told the Board he always had difficulty expressing himself, and was having
problems explaining his feelings about his crimes. But he reiterated that he took full
responsibility for his actions.
B. Social History
Adamar was born on November 22, 1975, in Southern California. He told Donna Robinson, Ph.D., who prepared the
September 24, 2008 psychological evaluation for Adamar’s 2009 parole hearing,
that his parents were “upper-middle-class†and were always employed and
remained “happily married†at the time of the Adamar-Robinson interview. His mother has a college degree and his
father is a carpenter. Adamar has a
younger sister. He told Robinson he had
always had, and still maintained, loving, caring and supportive relationships
with both parents, his sister, and “other relatives.†Adamar reported no violence, child abuse, or
alcohol abuse in his family.
Adamar
was diagnosed with dyslexia at some point in his childhood. He required tutors and special education
classes, and received “mostly Cs, sometimes, Bs, and once in a while a D.†He told Robinson he was never suspended or expelled from school and did
not have excessive absences. He was a
high school senior at the time of the commitment offenses and “completed his
high school diploma in 1995 while housed in the Los Angeles County Jail.â€
Adamar played numerous team sports
from an early age. In high school, he
played varsity football.
Adamar had no juvenile record. In June of 1994 he was convicted of vandalism
and placed on summary probation on conditions that included serving 70 days in
jail. Adamar told the probation officer
this conviction related to his tagging activity. Adamar told Robinson he and 10 or 11 friends
formed DYP when he was 16. He enjoyed
driving past his artwork and seeing how long his tagging signature would remain
before it was removed. Robinson further
reported that Adamar “described feeling drawn to the ‘rush’ of painting
‘billboards, freeways, and businesses.’
He stated that he was trying to find ‘fame’ for himself and rather
enjoyed having people question his signature (Who?) on his tagging
projects. He described this activity as
an escape from ‘boredom.’†Robinson
opined, “[I]t was apparent that Mr. Adamar was drawn to the thrill and
excitement of going out at night to participate in tagging activities.†She characterized Adamar’s explanation that
they did not tag homes as “[n]otable†“minimization of this activity.†Adamar told Robinson that he was no longer in
contact with any of his former tagging crew friends or with James. Adamar’s best friend at the time of the
offense was not a member of DYP and is now a police officer. Robinson considered this “[n]otable.†Adamar
told the Board he got involved with tagging because “I was living that
edge. I was—you know, I wanted to fit in
with taggers, something that it—you know, I started getting involved with
. . . .†Adamar
acknowledged that taggers were “[t]he wrong choice of friends
. . . .â€
C. Prison Record
The California
Department of Corrections and Rehabilitation (formerly the Department of
Corrections) received Adamar on July 19, 1996, when he was 22. Prison authorities disciplined Adamar for
misconduct on a total of three occasions:
in March of 1997 for participating in a sit-down strike, in July of 1998
for willfully obstructing a peace officer, and in November of 2000 for
manufacturing alcohol. Adamar told the
Board that a fear of being attacked by “the whites†caused him to participate
in the 1997 and 1998 incidents, which involved many inmates. His act of obstruction was to board up
windows. The alcohol in the 2000 incident
was made by and belonged to Adamar’s cellmate.
Adamar said, “I knew it was in there, so I take responsibility for, you
know, but it wasn’t mine.†Adamar also
received one “counseling chrono†(a file notation without disciplinary
consequences) in February of 2008 for failing to report to work. This incident also stemmed from collective
action by a number of inmates who were attempting to obtain a self-help or
therapy program for lifers. After prison
staff at various levels ignored their repeated requests for help, a group of
inmates decided not to go to breakfast.
A sergeant then locked them in the gym, which precluded them from going
to their work assignments.
Adamar was
working on an associate degree in business management and had completed approximately
31 units of college course work through distance learning courses provided by
Coastline Community College and Palo Verde College.
Adamar
completed vocational training in auto body repair and silk screening. He had also received training in building
maintenance and forklift operation. At
the time of the parole hearing, he was waiting to take a test to complete his
forklift operation certificate. He
received “laudatory chronos†from his auto body repair and silk screening
instructors. The latter “commended
[Adamar’s] excellent conduct and hard work.â€
According to Robinson’s report, Adamar received above average
performance ratings in these vocational programs. At the time of the parole hearing, Adamar had
worked in the prison industries program making detergent and bar soap for about
18 months. His supervisors in that
program wrote three letters in 2008 praising Adamar for hard work, exemplary
performance, and professional conduct.
One of the letters noted that he established an “inmate safety
committee.†In April of 2009, his
supervisor in the prison industries program rated him “exceptional†in
teamwork, participation, and learning ability and “above average†in all other
categories. The supervisor noted he was
“clearly an asset to PIA [prison industries authority].†Adamar had also worked in the prison dining
room, as a porter, in building maintenance, and in yard cleanup. According to Robinson’s report, Adamar
“typically†received average performance ratings in these assignments.
Adamar
had never been referred for or received any type of mental health
services. He had undertaken and completed several self-help and therapeutic courses on topics including
anger management, conflict resolution, alternatives to violence, success
strategies, and employment skills. He
also completed the “Friends Outside Parenting Program†and participated in the
“Happy Hats for Kids Project.â€
Adamar also received three
“laudatory chronos†in April of 2007 “stating that he was respectful to staff
and inmaates [sic] and that he
demonstrated a positive attitude, as well as[] being a hard worker and showing
a willingness to help others.†In
January of 2008 he received two more “laudatory chronos†“commenting on his
positive attitude, his courtesy and respect towards staff and fellow inmates,
and his willingness to work and help whenever needed.â€
Robinson’s report noted that Adamar
had never been involved in any conflict with other inmates or staff, had never
initiated any aggressive behavior toward others while incarcerated, and had not
affiliated with any “violent gangs†in or out of prison. She further reported that “records reflected
no outbursts of uncontrolled anger or impulsivity at any time in 10 years,
suggesting that Mr. Adamar has a fairly well mastered sense of self-control.â€
D. Parole Plans
Adamar
planned to reside either with his parents in Granada Hills or with his
grandmother in Riverside. The Board
received letters from Adamar’s parents and grandmother confirming that Adamar
was welcome to live with these relatives.
Adamar’s sister also wrote to the Board offering to let him live with
her in Virginia.
Adamar had no confirmed job offers,
but he told both Robinson and the Board that he believed his father would be
able to get him a job in construction.
The Board received a letter from a senior human resources manager with
the County of Los Angeles offering “job assistance.â€
Robinson’s
psychological evaluation noted that Adamar had obtained marketable skills in
auto body repair, silk screening, and operating a forklift, but he expressed
uncertainty about how he could obtain a job on the outside while he remained
incarcerated. Robinson characterized
Adamar’s short-term residential plan as “possible,†but his “plans for
employment and eventual self-sufficiency were not at all developed.â€
E. Mental Health Evaluation and Insight
Into Offense
Robinson’s
psychological evaluation reported that Adamar did not suffer from any mental
illnesses or personality disorders. She
opined, “[T]he absence of a major mental illness combined with his consistent
discipline to acquire skills for self-improvement are viewed as protective
factors against recidivism†and “concluded that there is no reason to believe
that Mr. Adamar’s current mental status places him at risk for violence or
re-offense. Moreover, his record of no
serious rules violations for the past eight years and only one incident for a
minor infraction represents a positive prognosis for continued self-control and
non-violence.†She also wrote, “The
records reflected no outbursts of uncontrolled anger or impulsivity at any time
in 10 years, suggesting that Mr. Adamar has a fairly well mastered sense of
self-control.â€
She nevertheless opined, “While Mr.
Adamar admits his guilt in fighting with the first victim and stabbing the
second victim, he displayed limited insight into the causative factors of his
behavior in the life crime. Aspects of
his account simply did not square with his behavior in the life crime. For example, he cannot explain what influenced
his decision to carry a weapon ‘for the first time’ on the evening of the life
crime. Neither can he find any
explanation for using a weapon to defend his friend when a less violent method
would have likely rendered the same outcome.
He is likely correct that he was consumed with the emotions of the
moment, which probably impaired his judgment.
Nonetheless, it was this evaluator’s opinion that he has much work to do
in order to take full responsibility for all of his behaviors, which
contributed to the death of another individual.â€
To assess Adamar’s potential for
violence if released on parole, Robinson used “an empirically based approachâ€
consisting of “two separate assessment guidesâ€:
the “Psychopathy Check List Revised†(PCL-R) and the “History-Clinical-Risk
Management-20†(HCR-20). Adamar’s score
on the PCL-R was “low,†which meant that he showed a lower risk of
violence “than approximately 90 percent†of North American male offenders.
On the HCR-20, Adamar ranked as a
“low-moderate†risk for recidivism “in the specific context of his
current clinical presentation and the parole plans that have been offered, to
date.†Robinson noted, “Historical items
assessed with this instrument are static in nature and therefore, impossible to
change.†Adamar’s historic factors
included his violent commitment offense, his prior conduct “victimizing othersâ€
by tagging, and his probationary status at the time of the commitment offense. Robinson wrote, “With regard to
Mr. Adamar displays one of the predictive factors for recidivism: a lack of insight. It did not appear that Mr. Adamar had any
significant insight into the elements in his personality structure that
contributed to his behavior in the life crime and to prior and repetitive acts
of vandalism. Rather, he attributed his
behavior to ‘poor influences and wanting to fit in.’ This did not appear to be consistent with his
childhood and adolescent history.
Rather, he has demonstrated a long-standing attraction to activities
that result in an adrenaline ‘rush’ and an inability to exercise better
judgment when captivated by circumstances that promote that sensation. [¶] On
the other hand, he related no negative or antisocial attitudes during this
evaluation and his history indicated that he has remained emotionally and
behaviorally stable across his incarceration.
He has participated in self-help groups and has upgraded both
vocationally and educationally, which indicated that he has been responsive to
the treatment that has been recommended.â€
With respect to “risk managementâ€
factors of the HCR-20, Robinson “noted some concernsâ€: “Mr. Adamar’s plans for residence with his
parents seemed feasible . . . .
His plans for employment (and long-term residential plans), however,
were not at all developed or verified.
Currently, he has no prospects of employment in the community and little
understanding of how to initiate that process from prison. He will also likely require transportation to
some prospective job site.†Robinson
continued, “Mr. Adamar has never lived in the community as a self-sufficient
adult. His transition from the highly
structured nature of the prison milieu to the free community can be expected to
be stressful for him and exacerbated by his need to traverse additional
challenges such as acquiring independent living skills as an adult. Additionally it can be expected that his
exposure to the potentially destabilizing affects [sic] of alcohol, drugs, and peers that are involved in antisocial
behaviors can be expected to increase in the community. [¶]
Fortunately, it appears that Mr. Adamar enjoys a high level of family
support that will assist him in negotiating these reentry challenges. Additionally, he has no history of alcohol
and/or substance abuse . . . and he has voiced a commitment to remain
abstinent. His behavior while in custody
suggested that he has been able to follow the expected rules of the
institution.â€
Robinson opined that Adamar
“presents as a relatively Low-Moderate risk for dangerous behavior if
released on parole.†She explained, “His
risk level was impacted primarily by his lack of insight into all of the
causative behaviors of the life crime, his history of victimizing the community
through repeated acts of vandalism as an adolescent, and his relatively
insufficient parole plans at the time of this evaluation.â€
Although Robinson did not make a
recommendation regarding Adamar’s suitability for parole, she included the
following in the conclusion to her report:
“Although he admits guilt for the life crime, he displayed little
insight into the things within himself that contributed to his behavior in the
life crime. Rather, he blames external
factors such as ‘bad influences’ from peers.
He has much to do to gain insight into his own personality dynamics that
contributed to his poor choices, both preceding and during the life crime.â€
Los
Angeles County Deputy District Attorney Robert Budman informed the Board that
his office opposed parole. He cited
Adamar’s lack of “insight into the causative factors which caused him number
one, to become involved with a group of taggers, which in my estimation was a
gang, and he really has not accepted responsibility for the crimes.â€
G. Board’s Decision
The Board
denied Adamar parole for seven years after concluding that he was “not suitable
for parole because he poses a present risk of danger to society or a threat to
public safety if released from prison.â€
The Board explained that it chose a seven-year period under “the new
regulations of Prop 9†because “the panel feels that perhaps seven years would
be clear and convincing evidence that you would need to come back before a
panel within seven years.â€
The
Board set forth four factors in explaining its unsuitability finding: the commitment offense, Adamar’s lack of
insight, his prison disciplinary history, and his lack of a job offer.
With
respect to the commitment offense, the Board noted that there were multiple
victims, it “was a rat pack attack,†it stemmed from “gang mentality and
culture,†victim Salvador was “not even a member of any group—he was a college
student over there visiting his girlfriend,†the offense was committed “in a
dispassionate and calculated manner,†and “both victims were abused because
they were both attacked by a group, outnumbered.â€
With respect to Adamar’s purported lack of insight, the Board told
Adamar, “You need to learn the insights into the causative factors that led you
to do this, and even though you have indicated that you really want to do that,
and you’ve taken some courses, we really don’t feel that you really have gone
through a self-examination portion of what it’s going to require you to do
that, and that’s one of the reasons for the length of the denial that we talked
about.†The Board continued, “[I]t’s got
to be something that would make you, one, want to disobey your parents and go
out at night to do the tagging, and then secondly, why would it be necessary
that you would go to the extremes to stab somebody to rescue a friend when
there were so many of you around? There
were only two of you—I mean two of them and so many other people that were part
of your tagging group there beating on these two individuals. So those are the things that you really need
to take a good, strong look at because what is going to keep you if you don’t
know what caused those triggers from you [sic]
to do the same thing again?†The Board
noted that Robinson’s report “was not totally supportive†and that her “overall
risk assessment†of Adamar “was primarily due to your lack of insight into all
of the causative behaviors of your life crime, by [sic] history of victimizing the community through repeated acts of
vandalism as an adolescent, and your relative [sic] insignificant parole plans at the time.†The Board noted that the final factor had
changed.
The Board also seemingly based its “lack of insight†conclusion upon
differences between Adamar’s account of the offenses and that set forth in the
appellate opinion. The Board
specifically mentioned Adamar’s statement that he did not know anything about a
gun and encouraged him “to go back and take a good, strong look at what the
appellate decision said as well as what’s in the reports so that you’ll be able
to understand why it’s important that you know and learn the causative factors
that led you to do this.â€
The Board also relied upon “lack of insight†to neutralize or minimize
the favorable factor of remorse: “On
your remorse you indicated that you take full responsibility for the crime, and
although we see that there is some remorse there, the panel’s not convinced
that you truly understand the nature and magnitude of the offense because you
don’t have the insight into why you did it, and until you do that, it’s very
hard for you to really determine remorse; however, we will go on record to say
that you did write letters to the victim [sic]
asking for them—telling them how sorry you was [sic], but again, until you really understand the magnitude of the
crime, it’s going to be—I mean the nature and why you did it, that’s going to
be something that you need to work on.â€
In reference to Adamar’s prison disciplinary record, the Board said, “The
other thing is that—concerning your current mental state, the fact that you
seem to be putting yourself in situations where you’re getting these 115s
[disciplinary actions], you know.â€
The Board characterized Adamar’s parole plans as “adequate in the way of
residence†but it noted that, although he had marketable skills, he had no job
offers.
The Board acknowledged that Adamar had no history of alcohol or substance
abuse, yet it strongly urged that he become involved with a 12-step program,
such as Alcoholics Anonymous or Narcotics Anonymous. It further recommended that he remain free of
discipline, complete his degree, and “participate in self-help so that you can
learn the causative factors that led you to get involved with this crime
. . . .â€
H. Habeas Corpus Proceedings
Adamar
filed a petition for a writ of habeas corpus in Los Angeles County Superior
Court on December 14, 2009 (No. BH006554).
The court denied the petition, stating that it found some evidence to
support the Board’s finding that Adamar “currently presents an unreasonable
risk of danger to society and is, therefore, not suitable for release on
parole.†The court explained, “The Board
heavily weighed the Petitioner’s 2008 psychological assessment which determined
that the Petitioner presents a ‘low-moderate’ risk of dangerousness. Though this conclusion was partially informed
[sic] by the Petitioner’s history of
violent criminality, the psychologist
also considered the Petitioner’s more recent behavior and mental state. Given the gravity of the commitment offense
and the triviality of the motive for the murder (gang retaliation), the Board
concluded that even a ‘moderate’ risk that the Petitioner would return to
similar violence in the free community was an unreasonable one.†The trial court found “[t]he psychologist’s
clinical assessment†constituted “‘some evidence’ to support that
conclusion.†The trial court also
rejected Adamar’s ex post facto challenge to the Board’s retrospective
application of 2008 amendments to Penal Code section 3041.5, subdivision (b)(3)
to deny Adamar a new hearing for seven years.
Adamar
then filed a petition for a writ of habeas corpus in this court. We requested opposition, issued an order to
show cause, and appointed counsel to represent Adamar. The Attorney General filed a return with
exhibits, Adamar filed a traverse, and the matter was argued on
December 14, 2010. We filed our
first opinion in this case granting Adamar’s petition on December 22,
2010. The Supreme Court granted review
on March 23, 2011, and remanded the case to us for reconsideration in light of
Adamar
contends that the Board’s finding that he was unsuitable for parole violated
his right to due process.
A. The
Applicable Law
Penal Code section 3041,
subdivision (b) “provides that the Board must
grant parole unless it
determines that public safety
requires a lengthier period of incarceration for the individual because of the
gravity of the offense underlying the conviction. [Citation.]
And as set forth in the governing regulations, the Board must set a parole date for a prisoner
unless it finds, in the exercise of its judgment after considering the
circumstances enumerated in [California Code of Regulations, title 15,] section
2402 of the regulations, that the prisoner is unsuitable for parole. [Citation.]
Accordingly, parole applicants in this state have an expectation that
they will be granted parole unless the Board finds, in the exercise of its
discretion, that they are unsuitable for parole in light of the circumstances
specified by statute and by regulation.â€
(In re Rosenkrantz (2002) 29
Cal.4th 616, 654 (Rosenkrantz).) In short, “parole is the rule, rather than
the exception†(In re Smith (2003) 114 Cal.App.4th 343, 366), and every
inmate has a liberty interest in parole that is protected by California’s due
process clause (Rosenkrantz, at
p. 660).
California Code of
Regulations, title 15, section 2402 applies to inmates
whose commitment offenses occurred on or after November 8, 1978. Subdivision (b) directs the Board to consider
“[a]ll relevant, reliable information available to the panel†including “the circumstances
of the prisoner’s social history; past and present mental state; past criminal
history, including involvement in other criminal misconduct which is reliably
documented; the base and other commitment offenses, including behavior before,
during and after the crime; past and present attitude toward the crime; any
conditions of treatment or control, including the use of special conditions
under which the prisoner may safely be released to the community; and any other
information which bears on the prisoner’s suitability for release.†(Cal. Code Regs., tit. 15, §
2402, subd. (b).) Subdivision (c) sets forth a nonexclusive list of circumstances tending to
show unsuitability for parole, including an especially heinous, atrocious or
cruel manner of perpetrating the commitment offense; a previous record of
violence; an unstable social history; commission of sadistic sexual offenses; a
lengthy history of severe mental problems related to the offense; and the
commission of serious misconduct while incarcerated. (Id., § 2402, subd. (c).)
Subdivision (d) sets forth a nonexclusive
list of circumstances tending to show suitability for parole, including the
absence of a juvenile record, a reasonably stable social history, signs of
remorse, significant life stress as a cause of the commitment offense, battered
woman syndrome, absence of a significant history of violent crime, the inmate’s
age, realistic plans for the future or marketable skills, and activities during
incarceration indicating “an enhanced ability to function within the law upon
release.†(Id., § 2402, subd. (d).) These factors govern both the Board’s
decision and the Governor’s review of the Board’s decision to grant
parole. (Rosenkrantz, supra, 29
Cal.4th at pp. 660–661.)
“[T]he Penal Code and
corresponding regulations establish that the fundamental consideration in
parole decisions is public safety . . . .†(In re Lawrence (2008) 44 Cal.4th
1181, 1205 (Lawrence).) “[T]he
core determination of ‘public safety’ under the statute and corresponding
regulations involves an assessment of an inmate’s current
dangerousness. As noted above, a parole
release decision authorizes the Board (and the Governor) to identify and weigh
only the factors relevant to
inmate will be able to live in society without committing additional antisocial
acts.’ [Citation.] These factors are designed to guide an
assessment of the inmate’s threat to society, if released, and hence could not logically
relate to anything but the threat currently posed by the inmate.†(Id.
at pp. 1205–1206.)
The Board
has broad discretion in deciding whether to grant parole. (Rosenkrantz, supra, 29 Cal.4th at p. 655.) “Resolution of any conflicts in the evidence
and the weight to be given the evidence are within the authority of the
Board.†(Id. at
p. 656.) “But the statutory and
regulatory mandate to normally grant parole to life prisoners who have
committed murder means that, particularly after these prisoners have served
their suggested base terms, the underlying circumstances of the commitment
offense alone rarely will provide a valid basis for denying parole when there
is strong evidence of rehabilitation and no other evidence of current
dangerousness.†(Lawrence, supra, 44
Cal.4th at p. 1211.) “[U]nder the
statute and the governing regulations, the circumstances of the commitment
offense (or any of the other factors related to unsuitability) establish
unsuitability if, and only if, those circumstances are probative of the
determination that a prisoner remains a danger to the public. It is not the existence or nonexistence of
suitability or unsuitability factors that forms the crux of the parole
decision; the significant circumstance is how those factors interrelate to
support a conclusion of current dangerousness to the public.†(Id.
at p. 1212.) “[A]lthough the Board and
the Governor may rely upon the aggravated circumstances of the commitment
offense as a basis for a decision denying parole, the aggravated nature of the
crime does not in and of itself provide some evidence of current
dangerousness to the public unless the record also establishes that something
in the prisoner’s pre- or postincarceration history, or his or her current
demeanor and mental state, indicates that the implications regarding the
prisoner’s dangerousness that derive from his or her commission of the
commitment offense remain probative of the statutory determination of a
continuing threat to public safety.†(
affirmative evidence, based upon the prisoner’s subsequent behavior and current
mental state, that the prisoner, if released,
may no longer realistically constitute a reliable or accurate
current dangerousness.†(
An inmate who is denied
parole is entitled to judicial review of the decision “to ensure that the
decision reflects ‘an individualized consideration of the specified criteria’
and is not ‘arbitrary and capricious.’â€
(Lawrence,
Board or the Governor, the relevant inquiry is whether some evidence supports
the decision of the Board or the Governor that the inmate constitutes a
current threat to public safety, and not merely whether some evidence confirms
the existence of certain factual findings.â€
(Id. at p. 1212.) “Only a modicum of evidence is required. Resolution of any conflicts in the evidence
and the weight to be given the evidence are matters within the authority of
[the Board or] the Governor.†(
“[T]he precise manner in which the specified factors relevant to parole
suitability are considered and balanced lies within the discretion of [the
Board or] the Governor, but the decision must reflect an individualized
consideration of the specified criteria and cannot be arbitrary or
capricious.†(Ibid.) Although this
standard is deferential, it is not toothless.
(Lawrence, at
p. 1210.) “‘[D]ue consideration’ of
the specified factors requires more than rote recitation of the relevant
factors with no reasoning establishing a rational nexus between those factors
and the necessary basis for the ultimate decision—the determination of current
dangerousness.†(Ibid.) “When reviewing a
parole unsuitability determination by the Board or the Governor, a court must
consider the whole record in the light most favorable to the determination
before it, to determine whether it discloses some evidence—a modicum of
evidence—supporting the determination that the inmate would pose
released on parole.†(
“Only when the evidence reflecting the inmate’s present risk to public
safety leads to but one conclusion may a court overturn a contrary decision by
the Board or the Governor. In that
circumstance the denial of parole is arbitrary and capricious, and amounts to a
denial of due process.†(
B. Analysis
of the Board’s Decision
1. Commitment Offense
The
first of the four factors the Board cited in support of its decision to deny
Adamar parole was the nature of the commitment offense. The Board mischaracterized the offense and
misapplied the pertinent regulation.
First, it characterized the commitment offense as “dispassionate and
calculated.†California Code of
Regulations, title 15, section 2402, subdivision (c)(1)(B) states the pertinent
factor: “The offense was carried out in
a dispassionate and calculated manner, such as an execution-style murder.†It is clear from the record that Salvador’s
murder and the assault on Chavez occurred in the course of a street brawl
between members of rival groups after a member of one group (victim Chavez)
insulted Adamar’s group. According to
Robinson, Adamar was likely “consumed with the emotions of the moment, which
probably impaired his judgment.†The
trial court instructed the jury upon heat of passion, which demonstrates that
the court found that substantial evidence introduced at trial would have
supported a finding by reasonable jurors that Adamar acted under the influence
of strong emotions. (We note that the
Board member who asked Adamar why “[i]n the appellate
decision you [sic] indicated that you
felt this crime was done in the heat of passion†seems to have overlooked not
only this finding by the trial court, but also the role of appellate counsel.) Under no reasonable, good faith view can the
crimes be deemed dispassionate or calculated.
The events evolved rapidly and the crimes were a response to the
evolving circumstances. The nature of
Adamar’s conviction—second degree murder,
that is, an unlawful killing of a human being with malice aforethought, but
without the additional elements of premeditation and deliberation—further
demonstrates that the crimes were neither dispassionate nor calculated. (In re
Moses (2010) 182 Cal.App.4th 1279, 1302 [verdict of second degree murder
undermined Governor’s characterization of murder as calculated and
dispassionate].)
The Board further stated that “both victims were abused because they were both attacked by a group, outnumbered.†The regulation states, in pertinent parts,
“The prisoner committed the offense in an especially heinous,
atrocious or cruel manner†where, among other possible factors, “[t]he victim
was abused, defiled or mutilated during or after the offense.†(Cal.
Code Regs., tit. 15, § 2402, subd. (c)(1)(C).)
The participation of persons other than Adamar in the attacks on Chavez
and Salvador has no tendency to show that Adamar committed the
offense in an especially heinous, atrocious or cruel manner. Adamar’s suitability or unsuitability for
parole must be determined on the basis of his own
conduct, not that of other participants in the street brawl. In addition, an attack by a group does not
constitute a type of “abuse†that makes Adamar’s commission of the offense
especially heinous, atrocious, or cruel.
Given the purpose of including this factor within California Code
of Regulations, title 15, section 2402, subdivision (c)(1)—showing that the
commitment offense was especially heinous, atrocious,
or cruel—and the inclusion of “mutilated†and “defiled†in
the same subdivision as “abused,†we conclude that “abuse†of the victim means
the infliction of undue cruelty or violence over and above the acts causing
death, such as purposeful infliction of physical pain or psychological
suffering. Neither the participation of
others nor a lopsided fight constitute such abuse.
Finally,
although the Board correctly noted that there were multiple victims, under the
circumstances, it is doubtful that the mere existence of this factor shows that
Adamar committed the offenses in an especially heinous, atrocious, or cruel
manner. Apparently, neither Chavez nor
anyone else other than Salvador suffered any great bodily injury.
Even
apart from the nonexistent evidentiary support for the Board’s characterization
of the commitment offenses as especially heinous, atrocious, or cruel, the
Board failed to articulate any “rational nexus between those facts and current
dangerousness.†(Lawrence, supra, 44
Cal.4th at p. 1227.) The Board may
have thought it stated such a nexus through its “lack of insight†assertion,
which we will address separately. A
review of the entire pre- and postincarceration record shows that the
commitment offenses constituted the one and only known incident of violence in
Adamar’s history. These offenses
appeared to be an aberration stemming from circumstances unlikely to
recur. (Id. at p. 1226.) Adamar’s
only prior criminal offense consisted of damaging property by tagging. He has never been involved in any conflicts with
other inmates or staff, has never behaved aggressively toward anyone while in
prison, has no mental or personality disorders, is not associated with any
violent groups, and has furthered his education and acquired vocational skills
while in prison. His prison disciplinary
record is minimal, and none of the incidents involved any actual or threatened
violence or aggression. He has not been
disciplined by prison authorities for nearly 12 years. The commitment offenses occurred more than 17
years ago, when Adamar was 18. He is now
36. The Board’s mere recitation of
aspects of the murder fails to provide “some evidence†that Adamar currently
poses a danger to the public if released on parole.
2. Insight
The second
and seemingly most significant reason for the Board’s decision to deny parole
was its belief that Adamar lacked insight into the factors that caused his
behavior in both the commitment offense and tagging. This belief apparently stemmed primarily from
Robinson’s psychological evaluation, but also appeared to be based upon
differences between Adamar’s account of offenses and
that set forth in the appellate opinion.
As noted, the appellate opinion set forth an inaccurate version of the
offense. It is thus unsurprising that
Adamar’s account differs from the appellate opinion. The account of the offense that Adamar gave
the Board is supported by the trial record, included all material facts that
were necessarily or presumably within his own knowledge, and did not attempt to
deflect responsibility or minimize his culpability. Given the chaotic and rapidly evolving events
that gave rise to the commitment offenses, it is also unsurprising that Adamar
did not know that while he was busy fighting Salvador, one of his fellow DYP
members drew a gun to keep the crowd back.
We fail to see how Adamar’s ignorance of this detail has any relevance
to the sole issue before the Board:
Adamar’s current dangerousness to the public, if released on
parole. Certainly, no adverse inference
about Adamar’s current dangerousness can be based upon whether another person
decided—without Adamar’s request or direction—to draw a gun to keep other
people away.
We
now turn to the remaining aspects of the Board’s and Robinson’s assessment that
Adamar lacked insight. Although an
inmate’s insight is not expressly mentioned in the parole regulations, “the
descriptive category of ‘insight’†embraces “the inmate’s ‘past and
present attitude toward the crime’ ([Cal. Code] Regs., [tit. 15,] § 2402, subd.
(b)) and ‘the presence of remorse,’ expressly including indications that the
inmate ‘understands the nature and magnitude of the offense’ (Regs., § 2402,
subd. (d)(3)).†(Shaputis
II, supra, 53 Cal.4th at p.
218.) “[T]he presence or
absence of insight is a significant factor in determining whether there is a
‘rational nexus’ between the inmate’s dangerous past behavior and the threat
the inmate currently poses to public safety.â€
(Ibid.) “[A] ‘lack of insight’ into
past criminal conduct can reflect an inability to recognize the circumstances
that led to the commitment crime; and such an inability can imply that the
inmate remains vulnerable to those circumstances and, if confronted by them
again, would likely react in a similar way.â€
(In re Ryner (2011) 196
Cal.App.4th 533, 547 (Ryner).)
But, while
insight is valuable, “we have to question whether anyone can ever fully
comprehend the myriad circumstances, feelings, and current and historical
forces that motivate conduct, let alone past misconduct. Additionally, we question whether anyone can
ever adequately articulate the complexity and consequences of past misconduct
and atone for it to the satisfaction of everyone. Indeed, the California Supreme Court has
recognized that ‘expressions of insight and remorse will vary from prisoner to
prisoner and . . . there is no special formula for a prisoner to
articulate in order to communicate that he or she has gained insight into, and
formed a commitment to ending, a previous pattern of violent behavior.’ ([In re]
remains vulnerable to a charge that he or she lacks sufficient insight into
some aspect of past misconduct even after meaningful self-reflection and
expressions of remorse.†(
of lack of insight is indicative of a current dangerousness only if it shows a
understanding and acceptance of responsibility for the crime. To put it another way, the finding
insight must be based on a factually identifiable deficiency in perception and
understanding, a deficiency that involves an aspect of the criminal conduct or
its causes that are [sic]
significant, and the deficiency by itself or together with the commitment
offense has some rational tendency to show that the inmate currently poses an
unreasonable risk of danger.†(
In re
Shaputis, supra, 44 Cal.4th 1241
(Shaputis I), illustrates such
a case. Shaputis had a history of
committing violent acts upon two wives (the second of whom he murdered) and his
daughters. He was also “a problem
drinker with a history of violence when drunk,†and had been drinking heavily
the night that he murdered his second wife.
(Id. at pp. 1246–1248.) In his parole hearings, Shaputis
characterized himself as a mellow drinker, claimed that he shot his wife
accidentally, found his daughter’s allegations of rape, incest, and domestic
violence inexplicable, and, when asked if he had a problem in the way he
treated women, he said he did not, but he guessed he “had a problem then.†(Id.
at pp. 1248–1250, 1252.) Notably,
Shaputis intended to live with his third wife if paroled, thereby placing
himself in circumstances similar to those in which he had previously behaved
violently. (Id. at p. 1252.) The Board
“reluctantly†found Shaputis suitable for parole, but the Governor reversed
that decision. (Id. at pp. 1252–1253.) The
Supreme Court found the record supported the Governor’s determinations that (1)
the crime was especially aggravated and the aggravated nature of the offense
indicated that Shaputis posed a current risk to public safety, and (2)
“although petitioner has stated that his conduct was ‘wrong,’ and he feels some
remorse for the crime, he has failed to gain insight or understanding into
either his violent conduct or his commission of the commitment offense.†(Id.
at pp. 1259–1260.) With respect to the
lack of insight, the court explained, although the evidence indicated that
Shaputis killed his wife intentionally, he “still claims the shooting
was an accident. This claim,
considered with evidence of petitioner’s history of domestic abuse and recent
psychological reports reflecting that his character remains unchanged and that
he is unable to gain insight
into his antisocial behavior despite years of therapy and rehabilitative
Governor’s conclusion that petitioner remains dangerous and is unsuitable for
parole.†(Id. at p. 1260, fn. omitted.)
In Shaputis II,
the Supreme Court similarly concluded that Shaputis demonstrated a lack
of insight: “Here,
petitioner’s lack of insight was established by a variety of factors: the 2004 and 2005 psychological reports
discussed in Shaputis I, supra,
44 Cal.4th at pages 1250–1252; his own statements about the shooting, which
failed to account for the facts at the scene or to provide any rational
explanation of the killing; his inability to acknowledge or explain his
daughter’s charge that he had raped her; and his demonstrated failure to come
to terms with his long history of domestic violence in any but the most general
terms.†(53 Cal.4th at p. 216.)
As both of the Shaputis cases illustrate, a “lack of
to recognize the circumstances, forces, and impulses that led to the commitment
offense, and this inability may support an inference that the inmate remains
vulnerable to those circumstances and, if confronted by them again, would
likely react in a similar way. But
“expressions of insight and remorse will vary from prisoner to prisoner and
. . . there is no special formula for a prisoner to articulate in
order to communicate that he or she has gained insight into, and formed a
commitment to ending, a previous pattern of violent behavior.†(Shaputis I, supra, 44 Cal.4th at p. 1260, fn. 18.) “Where, as here, undisputed evidence shows
that the inmate has acknowledged the material aspects of his or her conduct and
offense, shown an understanding of its causes, and demonstrated remorse, the
[Board’s] mere refusal to accept such evidence is not itself a rational or
sufficient basis upon which to conclude that the inmate lacks insight, let alone
that he or she remains currently dangerous.â€
(Ryner, supra, 196 Cal.App.4th. at p. 549.)
Adamar
fully acknowledged that he beat Chavez and stabbed Salvador. He did not attempt to minimize or deny his
conduct or mitigate his mental state or culpability in any way, and his account
of the offenses did not contradict the evidence. He correctly noted that his codefendant also
inflicted a fatal stab wound to Salvador and plausibly explained that he was
trying to get Salvador off of Sperling and was not thinking rationally. Even Robinson admitted that Adamar “is likely correct that he was consumed with
the emotions of the moment, which probably impaired his judgment.†Adamar acknowledged that his conduct
was a poor decision and that he should have pushed or “tackled†Salvador to
attempt to free Sperling. The record demonstrates that Adamar, Chavez,
Salvador, and others were engaged in a street brawl. Adamar has demonstrated his
understanding of the causes of his conduct in the commitment offense, and has
demonstrated remorse. He has not made
inconsistent statements about his role or culpability in the commitment
offense. His statements regarding his mental state and motivation are entirely
consistent with the record, entirely plausible—especially in light of Adamar’s
youth at the time of the offenses—and do not reflect a lack of insight. The record indicates that Adamar has
matured, reflected upon the nature and consequences of his conduct—as well as
the irrationality of his conduct and alternatives he could have pursued—and
undertaken extensive rehabilitative efforts that include conflict and anger
management courses. His prison record is
devoid of any instances of violence or aggression and indicates, as Robinson acknowledged,
“that Mr. Adamar has a fairly well mastered sense of self-control,†and this
“represents a positive prognosis for continued self-control and non-violence.â€
There
were no material factual discrepancies between the evidentiary record and
Adamar’s own account of his conduct and its causes. As noted, some of the Board’s (and perhaps
Robinson’s) conclusions that such discrepancies existed stemmed from reliance
upon the factually inaccurate appellate opinion. And, as noted, Adamar’s ignorance of whether
one of his friends pointed a gun at a crowd is neither surprising, given that
he was engaged with Chavez and Salvador, nor material to Adamar’s culpability
or current dangerousness.
The “lack of
insight†conclusion by Robinson and the Board is arbitrary, lacks any factual
basis in the record, and bears no rational relationship to the essential
question before the Board, that is, whether Adamar would constitute a current
threat to public safety if released on parole.
Unlike the circumstances in Shaputis
I and Shaputis II, the record
before us does not include even a modicum of evidence that Adamar gave
conflicting accounts of his conduct in the commitment
offense, minimized his role in the commitment offense, minimized or failed
to acknowledge a history of violent conduct, or otherwise showed a lack of
insight or failure to accept responsibility that would support an inference of
current dangerousness if released on parole.
Unlike Shaputis, Adamar had no “long history of violence†(
isolated incident.
The
Board’s and Robinson’s reliance upon Adamar’s purported lack of insight into
his prior tagging activities is also misplaced.
Although an inmate’s past criminal history is part of the information
the Board should consider (Cal. Code Regs., tit. 15, § 2402, subd. (b)),
prior offenses that are neither violent nor sexual and sadistic are not a
circumstance showing unsuitability.
(Cal. Code Regs., tit. 15, § 2402, subd. (c).) Tagging, while a costly criminal nuisance,
does not in itself endanger the life of any member of the public. It follows that a conclusion that Adamar
lacks sufficient insight into why he tagged cannot “provide a logical nexus
between the gravity of [the] commitment offense and a finding of current
dangerousness.†(Ryner, supra, 196
Cal.App.4th at p. 547.)
3. Prison Disciplinary History
The Board also cited Adamar’s prison disciplinary
history, which, as we have noted, was minimal, did not involve violence or
aggression, and ended, as far as the record before us reveals, almost 12 years
ago. Nothing about Adamar’s behavior in
prison—including his disciplinary history—indicates he poses a current danger
to the public if released on parole.
4. Lack of a Job Offer
The Board was careful to say that
the regulations did not require Adamar to have a job before he was found
suitable for parole. The Board’s
citation of Adamar’s lack of a job offer when explaining its denial of parole,
however, suggests that this factor may have played a role in the Board’s
unsuitability finding. The pertinent
regulation actually provides that a factor showing suitability for parole is that “[t]he prisoner has made realistic
plans for release or has developed marketable skills that can be put to use
upon release.†(Cal. Code Regs., tit. 15,
§ 2402, subd. (d)(8).) Here, the Board found Adamar’s residential
plans “adequate,†and it found that he had marketable skills. Insofar as the Board relied upon the absence
of a job offer, we conclude that the lack of a job offer does not provide a
modicum of evidence supporting a conclusion that Adamar would pose a danger to
the public if released on parole.
report
Finally, Robinson rated Adamar’s risk of violence as “low†on one assessment guide and
“low-moderate†on the other. Her
explanation of the latter rating revealed that the rating for historical
factors is impossible to change, and the ratings on the clinical and risk
management factors in that assessment were based upon her conclusions that
Adamar’s parole plans were inadequate and that he lacked sufficient insight
into the commitment offenses and tagging.
As we have explained, no evidence supports either of these conclusions. Robinson also cited, in support of the
“low-moderate†rating, Adamar’s lack of experience living in the community as a
self-sufficient adult. This factor is
also immutable, absent a grant of parole.
Robinson also cited the potential destabilizing influence of exposure to
alcohol, drugs, and peers involved in antisocial behavior, which would seem to
apply to every defendant, without regard to their actual personal
circumstances. For Adamar, this factor
was largely negated—as Robinson noted—by his lack of any history of alcohol or
drug abuse and his “commitment to remain abstinent.†Thus, nothing in the
constitutes a modicum of evidence that Adamar poses a current danger to the
public if released on parole.
| Description | On June 6, 1996, a jury convicted petitioner Michael Adamar of second degree murder and assault by means of force likely to produce great bodily injury. The jury also found that Adamar personally used a knife in the commission of the murder. The trial court sentenced him to an indeterminate term of 18 years to life. At Adamar’s initial parole hearing, conducted on January 16, 2009, the Board of Parole Hearings (Board) denied parole. Adamar filed a petition for a writ of habeas corpus contending that the Board’s decision violated due process because it was not supported by evidence demonstrating that he would currently be a danger to the public if released on parole. |
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