In re
Filed 2/24/12 In re Davis
CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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 FOUR
In re
BRUCE DAVIS
on Habeas Corpus.
B235231
(Los Angeles County
Super. Ct. No. BH007527)
APPEAL
from an order of the Superior Court of
County, Patricia Schnegg, Judge. Reversed.
Kamala
D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Julie A. Malone and Charles Chung, Deputy Attorneys General, for Appellant
Terry Gonzalez, Warden of the California Men’s Colony in San Luis Obispo.
Michael
Evan Beckman for Respondent Bruce Davis.
______________________________
Terry Gonzalez, Warden of
the California Men’s Colony in San Luis
Obispo, appeals from the superior court’s order granting the petition of Bruce
Davis for a writ of habeas corpus and vacating the Governor’s reversal of the
Board of Parole Hearings’ (the Board) decision to parole him. We conclude that some evidence supports the
Governor’s order to deny parole and reverse the superior court’s order. Davis is the respondent on this
appeal.
In the summer of 1969, respondent was 26 years old and
a member of Charles Manson’s cult known as “the Family.” The Family lived at the Spahn ranch, and
respondent participated in its various activities, including the murders of
Gary Hinman and Donald “Shorty” Shea.
Respondent was present during
discussions of Hinman as a person who had money that could be used to finance
Manson’s plan to take the Family to the desert.
On the evening of July 25, 1969, respondent was seen in the company
of Manson and Robert Beausoleil.
Beausoleil was wearing a sheathed knife, and respondent was holding a
9-millimeter Radom gun he had bought under a false
name. Respondent drove Beausoleil, Mary
Brunner, and Susan Atkins to Hinman’s house and returned to the ranch. Two days later, Manson received a phone call
message that Hinman “was not cooperating.”
Respondent claims not to have understood what that meant although he
admits he understood that a robbery was underway.
Manson asked respondent to drive him
to Hinman’s house. When they arrived,
Hinman already had been struck with a gun in a scuffle during which the gun had
fired. Respondent took the gun away from
Beausoleil, and later told another Family member that he had the gun pointed at
Hinman while Manson sliced Hinman’s face open with a sword, from his left ear
to his chin. Hinman was then put in
bed. He was bleeding and appeared to
lose consciousness at times. Respondent
drove one of Hinman’s cars back to the ranch, claiming Hinman was still alive
when he left.
title="">[1] Hinman’s badly decomposed body was discovered
on July 31, 1969. The cause of death
was a stab wound that penetrated his heart.
There were additional stab wounds, and a tear of the skin of the
scalp. A bullet recovered from a hole
underneath the kitchen sink could have been fired from the gun respondent had
bought. The words “Political Piggy” and
an animal footprint appeared in blood on the wall. A week later, Beausoleil was arrested in one
of Hinman’s cars.
In August 1969, respondent was
present when Manson discussed his belief that Shea, who worked at the Spahn
ranch, was a police informant and was helping a neighboring owner clear the
Family off the land. One night,
respondent, Manson, Charles “Tex” Watson, and Steven “Clem” Grogan
were seen surrounding Shea. They took
him to a ravine, where he was repeatedly stabbed. Respondent has admitted that he knew Shea was
going to be killed, but maintains that when Manson ordered that he cut Shea’s
head off with a machete, he refused, and only cut Shea on the shoulder after
Manson handed him a knife.
When Manson recounted the details of
the murder to other Family members, he said that they had stabbed Shea
repeatedly and that Shea was “‘real hard’ to kill until we brought him to
‘now.’” (In Family speak, “now” meant
absence of thought.) Respondent agreed
with this version of the murder and said, “Yeah, when we brought him to now,
Clem cut his head off,” adding, “That was far out.” In response to a newspaper article about a
witness’s testimony at Beausoleil’s trial, respondent reportedly claimed that
the Family had ways of taking care of snitches and had already taken care of
one. Referring to Shea’s murder,
respondent said, “We cut his arms, legs and head off and buried him on the
ranch.” Shea’s body was discovered years
later when it could no longer be determined whether he had been
decapitated.
Respondent was arrested in 1970 after
spending over a year on the run. He was
convicted of two counts of first degree murder and conspiracy to commit murder
and robbery. At sentencing, the court
stated that respondent had knowingly and willingly aided and abetted Hinman’s
murder and had actively participated in Shea’s “peculiarly vicious”
murder. The court also stated respondent
knew the Family’s intent and purpose; he was older than most of the other
Family members, more educated than they, and therefore not “a dupe.” Respondent was separately convicted of the
federal crime of presenting false identification to obtain a firearm. He has been eligible for parole since
1977.
Respondent’s most recent
in 2009. The evaluator diagnosed him with
cannabis and hallucinogen abuse disorders that were in sustained or full
remission in a controlled setting. The
evaluator pointed out that respondent claimed to have used various drugs and
that he used mescaline and LSD “by the handfuls” when he was with the
Family. He recognized that drugs
loosened his moral values, and reduced his inhibitions. He stopped using drugs in 1974, around the
time he became a Christian. The
evaluator also diagnosed respondent with a personality disorder not otherwise
specified, with narcissistic and anti-social features based on his
long-standing life pattern of “grandiosity and need for admiration as well as a
pattern of deceitfulness, impulsivity and irresponsibility.” The evaluator concluded that respondent posed
a low risk of violence, likely to increase if he returned to using intoxicants,
associated with antisocial peers, possessed a weapon, found himself without a
stable residence, lacked income sufficient to meet his living expenses or had
inadequate social support within the community.
Respondent has been slow to
acknowledge his participation in the murders, and over the years accepted only
limited responsibility, claiming that he played a minor role and rationalizing
his behavior. At his last parole
hearing, in 2010, he initially refused to talk about his life crimes. Instead, he provided a written statement, in
which he claimed that after the Board denied parole in 2008 he came to
understand he had deceived himself about his role in the murders, had refused
to accept responsibility for the things he did by focusing on what he did not
do and justification for his actions.
Thus, he acknowledged minimizing his role by claiming that he did not
plan the murders and did not want them to happen; he did not murder anyone; he
did not shoot Hinman but only drove the car and held the gun; and he did not
want to cut Shea but did so to avoid conflict with Manson. He claimed to have
finally understood that his actions showed he was “an equal and willing
participant.” He stated further: “I had not only done dreadful things, but I
also influenced others to participate in horrible crimes,” by being “a willing
participant in the crimes and in the cult.”
He expressed remorse and apologized to the Hinman and Shea
families.
The presiding Board commissioner was
disappointed that respondent’s statement did not “clear up further some
discrepancies,” and that he “dance[d] around” what his role in the murders
really was. Respondent then agreed to
answer specific questions. In response
to the commissioner’s expression of doubt that respondent only passively poked
Shea in the shoulder rather than stabbing him as others had done, respondent
restated his version of Shea’s murder—he had unwillingly participated only
after Manson urged him to join the others who already had began stabbing Shea,
he dropped the machete Manson had given him to cut Shea’s head, and he only cut
Shea in the shoulder out of fear for his own life. He did not know or care whether Shea was dead
or alive at the time.
In closing, the district attorney
discussed the two murders in the context of Manson’s plan to start a race war.
Family member who claimed that preparation for this race war was an integral
part of the Family’s daily life and the murders in which respondent was
involved were a part of it. As to
Hinman’s murder, the district attorney emphasized that respondent not only
drove Hinman’s attackers to his house but also provided the gun. He noted that respondent had admitted that he
may even have pointed the gun at Hinman while Manson slashed Hinman’s ear. The district attorney contrasted respondent’s
insistence that he reluctantly participated in Shea’s murder with his boastful
remarks in the days after the murder and his expressed desire to protect the
Family from damaging testimony during Beausoleil’s trial.
Respondent was allowed to personally
rebut the district attorney’s statement.
He explained he was emotionally immature when he joined the Family. Manson treated him with what he thought was
respect, and he had access to drugs, sex, and cars, which was all he
wanted. He did not believe Manson’s race
war would happen the way Manson said it would, but he did not care that Manson
wanted everybody to die. Respondent said
he “bragged about it all. Yeah, we cut
Shorty’s head off. Yeah, I wanted to be
impressive. I wanted to seem like
somebody. But, you know, every time it
came, when push came to shove, I always said no.”
The Board decided to parole respondent
because of his positive adjustment and despite the atrocity of the murders and
respondent’s continuing minimization of his involvement in them. He has had no recent discipline problems,
having been counseled for the last time in 1992. His only two rule infraction reports were
from 1975 and 1980. He had obtained a
doctoral degree in philosophy and religion.
He had upgraded vocationally in drafting and welding, and had completed
various self-help, substance abuse, and religious programs. He taught some parenting and Bible study
classes as a peer educator. His work
reports and work ethic were excellent.
His parole plans were to live with his wife of 25 years and their daughter
in San Luis Obispo County where he had an offer to work in landscaping. He also planned to work with his wife in the
ministry. The Board noted respondent had
no violent criminal history before his life crimes, even though he had had some
run-ins with the law. It noted further
that recidivism decreases with age.
The Governor acknowledged
respondent’s participation in programs, his educational accomplishments,
apparently supportive relationships, and parole plans. But he considered the murders in which
respondent participated so atrocious that their gravity indicated his current
dangerousness, especially because respondent did not fully understand his role
in their commission. The Governor
considered the evaluator’s diagnosis of a personality disorder as an additional
concern since many of the diagnosed features contributed to respondent’s
participation in the murders. The
Governor also was concerned about respondent’s conformist tendencies, including
his association with the American Nazi Party during the early years of his
incarceration. He was concerned that
respondent had not taken any courses to address self-esteem or assertiveness
training to break his self-professed “pattern of choosing the easy route and
following along with others,” a recent example of which was respondent’s
willingness to defer to his wife on fiscal and family-related matters. Finally, the Governor noted that respondent’s
participation in substance abuse programs over the years (1987-1988, 1994-1997,
2002, 2006-2007) had been sporadic and did not demonstrate an adequate
commitment to substance abuse treatment upon his release from prison.
The superior court granted
respondent’s habeas corpus petition and vacated the Governor’s decision. It agreed that the life crimes were heinous
but noted that they did not indicate current dangerousness in light of
respondent’s long-standing and positive rehabilitation and his limited
participation in the crimes. The court
emphasized that despite the personality disorder diagnosis respondent was
assessed as low risk. The court rejected
the Governor’s concern about respondent’s lack of insight into his crimes as
based on outdated information. The court
also rejected the Governor’s concerns about respondent’s willingness to defer
to his wife and about his commitment to sobriety, as the former did not
indicate dangerousness and the latter was unsupported because respondent had
more than 10 years in treatment, and there was no evidence that he had used
drugs since 1974.
This appeal followed. We granted a temporary stay and issued a writ
of supersedeas.
I
We review de novo a trial court’s
grant of a habeas corpus petition challenging a parole denial when, as in this
case, it is based solely on documentary evidence. (In re
Rosenkrantz (2002) 29 Cal.4th 616, 677 (Rosenkrantz).) And we review the Governor’s decision under
the highly deferential “some evidence” standard. (In re
Shaputis (2011) 53 Cal.4th 192, 221 (Shaputis
II).)
When a prisoner applies for parole,
first the Board then the Governor determines whether the prisoner poses a
current threat to public safety. (
parole suitability factors as the Board, including the facts of the life crime,
the prisoner’s insight into his or her past behavior, and his or her progress
while in prison.
title="">[3] (Shaputis
II, at pp. 220-221; Rosenkrantz,
novo and thus has discretion to resolve evidentiary conflicts, determine the
weight to be given to the evidence, and balance the parole suitability factors
in a “more stringent or cautious” manner, so long as they are given
individualized consideration and the decision is not arbitrary or capricious. (Id.
at pp. 660, 668, 677.)
Judicial review is limited to
determining whether a modicum of evidence in the entire record supports the
conclusion that the prisoner is currently dangerous. (Shaputis
II, supra, at pp. 209, 221.) The court considers “whether there is a
rational nexus between the evidence and the ultimate determination of current
dangerousness” but does not reweigh the evidence. (Ibid.) The court may not determine whether or not
the prisoner is currently dangerous as that decision is reserved for the
executive branch. (Ibid.) In other words, “[i]t
is irrelevant that a court might determine that evidence in the record tending
to establish suitability for parole far outweighs evidence demonstrating
unsuitability for parole.” (
II
One of the factors tending to
establish unsuitability for parole is that the prisoner “committed the offense
in an especially heinous, atrocious, or cruel manner.” (Cal. Code Regs., tit. 15, § 2281, subd.
(c)(1).) This factor may be present if “(A)
multiple victims were attacked, injured, or killed in the same or separate
incidents; (B) the offense was carried out in a dispassionate and calculated
manner, such as an execution-style murder; (C) the victim was abused, defiled,
or mutilated during or after the offense; (D) the offense was carried out in a
manner that demonstrates an exceptionally callous disregard for human
suffering; and (E) the motive for the crime is inexplicable or very trivial in
relation to the offense.” (
The Governor stated that the murders
were so heinous that even by themselves they evidence respondent’s current
dangerousness.
title="">[4] He focused on the fact that both victims were
“abused, tortured, and mutilated.”
Respondent does not challenge this characterization of the murders, but
he claims that because of his minor role in them, their gravity should not be
held against him. We disagree.
The actions of a perpetrator may be
imputed to an accomplice for purposes of parole consideration. (In re
Bettencourt (2007) 156 Cal.App.4th 780, 800, citing
248, 259.) To be liable for specific
intent crimes committed by the perpetrator, the accomplice must share the
perpetrator’s specific intent. (
1118.) Respondent claims that there is
no evidence he planned the murder. But
he was convicted of first degree murder and conspiracy to commit robbery and
murder in Hinman’s case, and his actions indicate a greater culpability than he
is willing to admit: he was seen in
Manson’s and Beausoleil’s company, armed with the gun that was used in the
crime while Beausoleil was armed with a knife; he reportedly said he held the
gun on Hinman while Manson mutilated Hinman’s face; and he left in Hinman’s car
after Hinman had been mutilated. The
Governor was not required to draw from respondent’s actions inferences
favorable to respondent or credit respondent’s claim that he naively failed to
grasp that Hinman was being slowly murdered over the course of four days.
Respondent has acknowledged that he
knew of the plan to kill Shea and went along with it. Nothing in his observed behavior or reported
statements after that murder indicates that he did not share in the intent to
kill Shea, and he is therefore liable for the actions of his accomplices. Notably, in her bid for parole, Leslie Van
Houten, a Manson follower who assisted in the murders of Mr. and Mrs. La Bianca
on August 9, 1969, but who did not deliver the fatal wounds to either of them,
similarly argued that the actions of the perpetrators should not be imputed to
her. The court rejected that
argument. (In re Van Houten, supra,
116 Cal.App.4th at p. 365.)
Respondent’s own actions provide some
of the egregious features of the two murders of which he was convicted. He has all but admitted that he held the gun
on Hinman while Manson mutilated Hinman’s face.
He then left a bleeding and barely conscious Hinman in the company of
the three original assailants, thus demonstrating “an exceptionally callous
disregard” for Hinman’s suffering. A
month later, respondent participated in Shea’s murder, which involved numerous
stabbings of an unarmed and outnumbered victim.
Even crediting respondent’s version that he made only one cut on Shea’s
body, that cut was one too many since Shea already had been repeatedly stabbed
by others. And if, as respondent has
claimed, he believed Shea was already dead, cutting his dead body may have been
an act of gratuitous abuse or
mutilation. (See
delivered when Van Houten thought Mrs. La Bianca was dead constituted
gratuitous mutilation].)
The aggravated circumstances of the
life crimes may provide “some evidence” of respondent’s current dangerousness
when coupled with his reported lack of insight decades after their
commission. (In re Lawrence, supra, 44
Cal.4th at p. 1228.) “Insight” is not a
suitability factor, but it is subsumed under other factors, such as the
prisoner’s “past and present attitude toward the crime” (Cal. Code Regs., tit.
15, § 2281, subd. (b)) and “the presence of remorse” that indicates
understanding of its “nature and magnitude” (§ 2281, subd. (d)(3)). (See Shaputis
II, supra, 53 Cal.4th at p.
219.) A prisoner’s insight into the life
crime is a significant factor that may change over time and thus “bears more
immediately on the ultimate question” whether the prisoner currently poses a risk
to public safety. (Ibid.) Parole determination
generally must be based on the most recent evidence of a prisoner’s level of
insight. (Id. at pp. 219-220.)
Contrary to respondent’s contention,
the Governor did not rely on dated information about respondent’s insight. He reviewed respondent’s evolving attitude
towards his life crimes, with its attendant factual inconsistencies. He then cited the Board’s concern at the 2010
hearing that respondent continued to minimize his role in the murders, and he quoted
specifically respondent’s statement at the hearing that, he “bragged about it
all. Yeah, we cut Shorty’s head
off. Yeah, I wanted to be impressive. .
. . But . . . every time . . . when push
came to shove, I always said no.”
Considering the context in which it was given, this statement may have
been intended to affirm respondent’s position that he did not cut Shea’s head
off. The level of exaggeration in it
also lends it to the reasonable interpretation that, as late as 2010, and
despite his written statement of remorse, respondent still believed that his
limited participation was tantamount to a refusal to participate in the
murders.
Respondent has insisted over the
years, including at the 2010 hearing, that he “just went along” and “didn’t
have what it took to say no,” or was unable to say no because he was afraid of
Manson. Yet, he also has insisted that
he could in fact say no when, according to him, it mattered—for instance, when
he was asked to decapitate Shea. The
Governor could reasonably infer that respondent was still ambivalent about his
role in the murders. The Governor may be
justifiably cautious about paroling a prisoner who subjectively draws the line
only at decapitation. And he may weigh more
heavily than the Board the aggravated nature of the murders and respondent’s
continued inability to understand that he did not refuse to participate when it
mattered.
supra, 29 Cal.4th at p. 677.)
The Governor provided a rational
nexus between his conclusion that respondent lacked insight into the life crimes,
which rendered them relevant to his current dangerousness. He also cited the fact that in 2009
respondent was diagnosed with a personality disorder with narcissistic and
anti-social features, and his apparent failure to address his conformist
tendencies. Respondent argues that, in
light of the evaluator’s conclusion that respondent’s current risk of violence
was low, this diagnosis cannot indicate his current dangerousness.
A psychological assessment of the
risk of future violence “bears on the prisoner’s suitability for release” (Cal.
Code Regs., tit. 15, § 2281, subd. (b)), but the assessment is not binding on
the parole authority. (See
In re Lazor (2009) 172 Cal.App.4th 1185, 1202.) The parole authority’s reliance on outdated
psychological reports is not “some evidence” of current dangerousness. (In re
Lawrence, supra, 44 Cal.4th at p.
1224.)
The 2009 evaluator summarized the
various diagnoses respondent had received over the years, which indicated that
respondent had initially been diagnosed with a schizoid personality disorder
with anti-social features. The diagnosis
morphed into variations of a personality disorder with narcissistic features in
the 1988, 1990, 1993, 1997, and 1999 reports.
Some evaluators (in 1980, 1985, 1986, 1996, and 1998) opined that
respondent did not qualify for a diagnosis or did not have a disorder. The issue of a diagnosis was not addressed at
all in the 1992, 1994, 2004, and 2006 reports, but in the latter two
respondent’s violence risk was rated as low to moderate. The 2009 evaluator opined that respondent had
a life pattern that pointed to an unspecified personality disorder with
narcissistic and antisocial features.
The evaluator explained that, to support a diagnosis, a life pattern
must be “enduring,” “inflexible and pervasive across a broad range of personal
and social situations,” “stable and of long duration.”
The Governor’s concern over the
latest diagnosis is justifiable in light of the factors the evaluator used to
diagnose it, which indicate that it is stable, inflexible and pervasive. This part of the evaluator’s report appears
to be at odds with the risk assessment portion, where the evaluator finds that
respondent has improved over time, and it begs the question whether the
evaluator diagnosed a disorder because of respondent’s insufficient improvement
or because of his prior history. Yet,
respondent’s case is distinguishable from In
re Lawrence, supra, 44 Cal.4th at
p. 1224, where the Governor relied on stale evaluations diagnosing a disorder
even though more recent evaluations had consistently found that the prisoner no
longer suffered from any psychological problems. No such consistent pattern is evident in this
case. The Governor’s choice to attach
significance to the evaluator’s diagnosis, rather than to the low risk
assessment, may thus be overly cautious but it is not arbitrary.
The Governor also was concerned about
respondent’s conformist tendencies and failure to address his self-esteem
issues and lack of assertiveness. One
point of concern was respondent’s one-time in-prison association with the
American Nazi Party. Respondent told the
2009 evaluator that members of the Nazi Party in Folsom Prison “took me under
their wing” and “made sure I was okay.”
While there is no evidence in the record indicating any more recent
instances of respondent’s gravitation to reactionary political groups, the
Governor may be justifiably concerned about respondent’s repeated associational
choices and his tendency to “deny and deflect responsibility” for his actions,
which respondent admitted in his written statement to the Board.
The Governor also cited respondent’s
plan to defer to his wife on fiscal and family-related matters and “just say
‘yes ma’am,’” as an example of this problem.
By itself, respondent’s willingness to defer to his wife’s judgment is
not evidence of current dangerousness, but it may be indicative of an enduring
personality trait that makes respondent particularly vulnerable to outside
influence. The Governor concluded that
respondent had failed to participate in programs specifically designed to
provide self-esteem and assertiveness training.
The names of the programs listed in the record do not reveal whether
respondent has addressed these issues, and respondent does not argue that he
has. We cannot conclude the Governor’s
view that respondent should do so is arbitrary.
Appellant does not defend the
Governor’s finding that respondent exhibits insufficient commitment to
substance abuse treatment. The evidence
in the record indicates that respondent has not used drugs in prison since 1974
and that his drug problem is in remission.
He took programs geared towards substance abuse from 1987 to 1988, from
1994 to 1997, in 2002, and from 2006 to 2007.
The Governor commended him for currently participating in an Alcoholics
Anonymous (AA) program and noted that he had an AA sponsor upon release. The trial court misinterpreted the Governor’s
concern as relating generally to respondent’s commitment to sobriety rather
than specifically to abstention from drugs.
Respondent follows the trial court’s reasoning. Respondent obviously understands that the
fact that he has not used drugs while in prison is not sufficient by itself, as
he has intermittently participated in substance abuse support programs. Considering that respondent’s life crimes
were committed at a time of heavy drug use and that the record before the
Governor failed to indicate respondent’s current commitment to seek support for
drug abuse, the Governor’s conclusion is not arbitrary.
We find the
Governor’s conclusion that respondent is still dangerous supported by some
evidence on the record before us.
The order of the trial court is reversed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN,
P. J.
We concur:
WILLHITE, J.
SUZUKAWA, J.
Brunner, Atkins, and Beausoleil remained at Hinman’s house for two more days
while Hinman lay bleeding, until Beausoleil stabbed him in the chest and smothered
him with a pillow. (People v. Manson (1977) 71 Cal.App.3d 1, 17-18.)
“Manson believed that the Beatles in their song,
‘Helter Skelter,’ were warning him of an impending bloody, civilization-ending,
worldwide race war between Blacks and Whites. During this war, Manson and his
followers would hide in a bottomless pit in Death Valley. Manson foretold that the Blacks would succeed
in their ‘revolution,’ but that the Family would emerge from the pit to take
control and restore order. Manson came
to believe that he would have to precipitate the race war by murdering Whites
in the way he thought Blacks would do it in the race war and in such a way that
Blacks would be blamed for the murders.
[Citation.]” (
339, 344, fn. 1, citing People v. Manson
(1976) 61 Cal.App.3d 102, 129-130, 131, 139-140.) Manson envisioned writing the word “Pig” or
smearing the victims’ blood on walls as part of these murders. (People
v. Manson, at p. 140.)
