In re Lockett
Filed 6/24/13
In re Lockett CA2/3
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
In re
WILLIE RAY LOCKETT, JR.,
on
Habeas Corpus.
B242244
(Los Angeles
County
Super. Ct.
No. KA022221)
PETITION
for Writ of Habeas Corpus. Patricia
Schnegg, Judge. Petition granted.
Susan L.
Jordan, under appointment by the
Court of Appeal, for Petitioner.
Kamala D.
Harris, Attorney General, Jennifer A. Neill, Assistant Attorney General,
Phillip Lindsay and Gregory J. Marcot, Deputy Attorneys General, for
Respondent.
Inmate Willie Ray Lockett, Jr., petitions
for a writ of habeas corpus after the
Board of Parole Hearings (Board) found him unsuitable for parole for the fourth
time. Lockett contends the Board’s
denial of parole was not supported by “some evidence.†We grant Lockett’s petition and remand for a
new hearing before the Board.
FACTUAL BACKGROUND
1. Commitment
offense, sentence, and prior unsuitability findings.
On April 16, 1994, Lockett, who
had turned 20 four days earlier, carjacked Dalbir Singh
lot. Singh’s companion, Alejandro
Barajas, was able to flee, but Lockett forced Singh into Singh’s 1993 Toyota
Camry and drove off with him. After
driving for a few blocks Lockett robbed Singh of cash and other possessions,
and forced him into the vehicle’s trunk.
Lockett then drove Singh to an area several blocks away and released
him, physically unharmed. Lockett drove
Singh’s car to Richmond in Northern
California. A few days
later Lockett led police on a high-speed chase after he was spotted driving
Singh’s car. When he turned onto a
dead-end street, he stopped and fled.
Police searching the car found a .45-caliber semi-automatic gun inside.
Lockett
pleaded guilty to kidnapping for robbery with personal use of a firearm (Pen. Code,
§§ 209, subd. (b), 12022.5, subd. (a));
degree robbery (§ 211). The trial court
sentenced Lockett to life in prison with the possibility of parole, plus four
years. The abstract of judgment stated,
“Court recommends parole at first eligible date.†Lockett was committed to the California
Department of Corrections on April 5, 1995. His minimum parole eligibility date was October
16, 2004.
The Board
found Lockett unsuitable for parole at hearings conducted in 2003, 2006, and
2009. His most recent hearing transpired
on January 13, 2011. The Board again
denied parole, for the minimum period of three years, but recommended Lockett move
to advance his next hearing pursuant to section 3041.5, subdivision (d)(1). At the time of the 2011 parole suitability
hearing, he had served approximately 16 years and was 36 years old.
Lockett petitioned for a writ of
habeas corpus in the superior court, which was denied on February 14,
2012. On June 29, 2012, Lockett filed
the instant habeas petition in this court.
We issued an order to show cause.
2. Social
and prior criminal history.
According to a psychologist’s
report, Lockett’s parents separated when he was four years old. He has five younger half-siblings, two born
to his father and three to his mother; all but one were born after he was
incarcerated. He lived with both parents
at times when he was a child. He
reported that his mother was an alcoholic and was “drunk all the time at home,â€
causing him to miss school while he cared for a younger sibling. At the age of eight, he was hospitalized for
11 months for a spinal disease, and was forced to lie on his stomach without
moving for much of the time.
He was beaten up when he was 11
years old by a group of “friends†because he unknowingly used incorrect gang
lingo. He reported taking a gun and
shooting at the assailants, but apparently missed. As a result of the beating, he became more
aggressive, got into fights at school, and was suspended twice as a result. He was expelled once for participating in
extortion. He was sent to live with his
father in Oakland, but returned to his mother’s custody in Los Angeles when he
was 13. He joined the P.J. Watts Crips,
a local gang. He left school after
completing the 10th grade. Between the
ages of 12 and 16, he had at least 10 contacts with police that did not result
in sustained petitions. Five involved
joyriding or grand theft auto; one involved extortion; and one involved assault
with a firearm. In April 1988 he suffered
a sustained petition for assault with a deadly weapon other than a firearm and
attempted robbery, after he fought with three minors who attacked him. In September 1988 he suffered another
sustained petition for grand theft person after he took a skateboard from
another minor, and threatened to shoot the victim when the victim tried to
retrieve it. He was placed with the
California Youth Authority (CYA) when he was 16, after he violated probation by
refusing to follow a teacher’s instructions, used profanity in class,
challenged another minor to a fight, and made gang signs. After his release from CYA, Lockett attended
community college for one and one-half years, where he was on the football and
swim teams. He was employed in various
jobs for approximately two years. He was
on CYA parole when he committed the commitment offenses.
Lockett
used marijuana several times a week starting at age 15. According to a 2003 Psychological Evaluation,
he sold cocaine on the street to support his drug habit. He stopped drug use when he was placed in
CYA. After his release, at the age of
19, he increased his marijuana use to once or twice a week, sometimes lacing
the marijuana with cocaine. He
reportedly stopped using marijuana a month before the commitment offense,
because he had a bad experience with a batch that, unbeknownst to him, had been
laced with PCP. He did not drink alcohol
until he was 18, and quickly stopped, given his mother’s issues with alcohol
abuse.
In 2010,
Lockett told a prison psychologist
he was on good terms, and in contact with, his parents and half-siblings.
3. Prison
disciplinary history.
While in
prison, Lockett was convicted twice of being in possession of a weapon
(§ 4502), once in 1997 and once in 2003 for an incident that occurred in
January 2002. As a result, he received
two additional three-year determinate sentences. Including these incidents, Lockett has
received 12 CDC 115 serious rules violations,
rules violations for refusing a direct order, and has been counseled four times
for minor misconduct. Lockett has been
discipline-free since 2002.
4. Accomplishments
while in prison.
After early 2002, Lockett became
a model, or at least much improved, prisoner.
He obtained his GED in 2008 and completed various community college
classes. His Test of Adult Basic
Education (TABE) score increased from the 8th grade level when he entered
prison, to the 12th grade, nine-month level by 2007. He earned certifications in small business
management from the Professional Career Development Institute, and “Serve Safeâ€
from the National Restaurant Education Association. He completed various community college
classes, including two English courses, Counseling, Early Childhood Education,
and Mathematics. In 2010 he was enrolled
in four additional classes. Lockett
ended his gang affiliation in approximately 2003. He sought permission to have a gang tattoo on
his neck removed, without success. He
became a Muslim in 2003 and served as the Imam of a prison religious
group. He attended Alcoholics Anonymous
(AA) in 2006 and, at the time of the hearing, attended as a “support
member.†He participated in Narcotics
Anonymous (NA) from 2006 through 2009, and was the program chairman at one
point. Since 2005 he has worked as a
cook, on the yard crew, in the paint shop, and as a barber, and has consistently
received average to exceptional ratings.
He has participated in a variety of self-help programs including
Overcoming Addiction, Stress Management, Search Yourself, Anger Management,
Successful Parenting Skills, Understanding and Handling Addiction, Core
Emotions Training, Conditions of Life, and Handling Suppression, among
others. In his spare time, he studies
Yoga and Tai Chi, and draws.
5. Psychological
reports.
In 2003, Lockett was diagnosed
with depressive disorder, polysubstance dependence in sustained full remission
in a controlled environment, and antisocial personality disorder. His risk of violent recidivism was estimated
to be above average.
In 2007, he
was diagnosed with “antisocial personality disorder, resolving.†The psychologist opined that Lockett’s
conversion to Islam in 2003 had reduced his potential for violence.
A 2010 psychological evaluation
concluded that overall, Lockett presented in the “[m]oderate range for violence
in the free community.†(Italics
omitted.) The psychologist used three
standard assessment tools: the
Psychopathy Check List-Revised (PCL-R), the Historical-Clinical-Risk
Management-20 (HCR-20), and the Level of Service/Case Management Inventory
(LS/CMI). Lockett scored in the moderate
range for psychopathy on the PCL-R; the moderate range for violent recidivism
on the HCR-20; and the medium range for overall recidivism on the LS/CMI. All three assessment tools relied heavily on
historical factors. At the interview for
the 2010 psychological valuation, Lockett appeared “prosocial,†friendly, nonaggressive,
and thoughtful. The psychologist opined
that Lockett “has made the transition from procriminal to prosocial attitudes
and behaviors.†Lockett met the criteria
of having had a conduct disorder based on his history of criminality and
aggression as an adolescent.
As of 2010,
Lockett showed no evidence of any major
related to the life offense, to his previous use of substances, and in regard
to his parole and relapse prevention planning.
He did not have negative attitudes and had adopted a prosocial
orientation. He had no current symptoms
of a severe mental disorder, emotional or behavior volatility, or
impulsivity. He had demonstrated
response to treatment and was motivated toward self-improvement.
6.
Parole plans.
Lockett presented considerable
information demonstrating his parole plans, including offers of support,
transitional living, and possible employment.
His father, who owns a restaurant, and his stepmother offered their
support, in terms of housing and a job.
The psychologist opined in 2010 that Lockett’s parole and relapse
prevention plans were past the formative stage and moving toward “refining
issues of concern.†The psychologist
opined that Lockett’s “prognosis for parole at this time appears good,†pending
validation of his parole plans.
7. Board’s
2011 unsuitability finding.
As noted, at the 2011 hearing
the Board again denied parole, finding Lockett’s release would present an
unreasonable risk to public safety. The
Board indicated it did not give much weight to the circumstances of the life
crime because “it’s a rather historic event at this point.†The Board based the denial on five
factors: (1) Lockett’s attitude
toward, minimization of, and lack of insight into the causative factors of, the
crime; (2) his failure to complete an adequate “relapse prevention planâ€;
(3) his need for additional “victim awarenessâ€; (4) his unstable
social history as a youth; and (5) the psychological evaluation’s
assessment that he presented a moderate risk of recidivism and violent
reoffense upon release. The panel
observed that it was required to set the next parole hearing for a minimum of
three years in the future, but strongly recommended that Lockett move, pursuant
to section 3041.5, subdivision (d)(1), that the next hearing be advanced. The panel opined it “won’t take you three
years to complete what we’ve offered as far as what you need to work on today.â€
DISCUSSION
1. Standard
of review.
The Board must set a parole
release date one year prior to an inmate’s minimum eligible parole release
date, unless it determines that public safety requires a lengthier period of
incarceration. (§ 3041, subds. (a) &
(b); In re Shaputis (2008) 44 Cal.4th
1241, 1256 (Shaputis I);
Board considers a variety of factors specified in the pertinent regulations, as
well as any additional reliable and relevant information.
Shaputis (2011) 53 Cal.4th 192, 218-219 (Shaputis II); Lawrence,
at p. 1202, fns. 7 & 8; Cal. Code Regs., tit. 15, § 2281, subds. (b),
(c) & (d).) The overarching
consideration is public safety. (
deferential, “far more so than the substantial
evidence standard generally applied in appellate review of trial court
decisions.†(In re Davidson (2012) 207 Cal.App.4th 1215, 1221;
440, 451-452.) A reviewing court focuses
on “ ‘whether there exists “some evidence†demonstrating that an inmate poses a
current threat to public safety,’ †rather than merely whether some
evidence supports the suitability factors.
(Shaputis II, at p. 209;
251-252; Lawrence, at
p. 1191.) Only a modicum of
evidence is required. Resolution of
conflicts and the weight to be given the evidence are matters for the Board,
and a court may not substitute its judgment for the Board’s. (Shaputis
II, at pp. 210, 221; Shigemura,
is procedurally flawed or arbitrary. (
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.†(Id.
sufficiently robust to reveal and remedy any evident deprivation of
at p. 452.)
2.
supported by “some evidence.â€
With the foregoing principles in mind, we conclude the
Board’s decision was not supported by “some evidence.â€
a. Attitude,
insight, minimization, victim awareness.
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.
[Citations.] Thus, an inmate’s
‘lack of insight’ can provide a logical nexus between the gravity of a
commitment offense and a finding of current dangerousness.†(In re
Rodriguez (2011) 193 Cal.App.4th 85, 98; Shaputis I, supra, 44 Cal.4th at pp. 1260-1261 & fn.
20.) The 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.†(
218.) Here, however, the Board’s
conclusions that Lockett minimized his culpability for the crime, lacked
insight into the causative factors of the crime, and needed more “victim
awareness†are not supported by “some evidence†in the record.
The Board’s conclusion that Lockett
minimized the crime was primarily based upon a 2010 letter Lockett wrote to his
victim, Singh, in which Lockett apologized for the crimes. Among other things, Lockett explained he had
been ignorant, foolish, “lacked the basic essentials of character,†and had
adopted the “nihilistic mindset of urban youth.†His “reality was dictated by [his]
involvement in street gangs and drug usage.†He “needed help––more emotionally
than anything else.†His parents were
“unavailable emotionally†and he needed more structure in his life. Lockett stated, “In many ways the crime I
perpetrated against you was a childish antic in an attempt to gain the
attention of my parents. Being incarcerated
seemed to be the only thing which caught their attention.â€
The Board faulted Lockett’s
characterization of the carjacking as a “childish antic,†interpreting this
remark as an indication of Lockett’s minimization of the crime. One of the panel members said, “I think you
have no clue what a childish antic is.
That’s a prank. . . .
That’s, at wors[t], that’s mischief.
It’s a disturbing the peace.â€
When explaining the basis for the unsuitability finding, the panel
stated that it wished to see Lockett “put the crime in a better perspective,
understanding the nature and magnitude of the crime. Somehow, I think the Panel believes you get
it, but when you say things like childish pranks it minimizes and begins to
justify a very serious criminal act. And
so you need to be able to put it in perspective that this was a life crime, not
a childish prank.â€
There is no
question Lockett’s crime was vastly more serious than a “childish antic†or a
prank. But Lockett’s use of this single
phrase does not provide evidence he lacks insight or has minimized the
seriousness of the crime. At the hearing
Lockett stated that he did not mean, by the phrase “childish antic,†to
minimize the crime but was simply trying to explain his lack of maturity and
stability, his defiance toward authority, and his adoption of the gang
mentality. He stated: “I’m taking no minimization. I’m not de-valuing the situation. I understand that I was wrong in this crime. And that this crime was very violent, and
this crime caused harm, significant harm, to this individual, although not
physically, mentally. And I’m not trying
to change that fact.†Lockett pleaded guilty to
the offenses and told both the Board and the psychologist that he accepts the
official version of the crime was accurate.
He has not attempted to deflect blame for the crime. He has repeatedly acknowledged that his crime
was very violent and traumatized the victim.
He also readily acknowledged that the high-speed chase he instigated
endangered everyone in the neighborhood, as well as passengers in his car. The evidence here does not resemble that in
the authorities cited by the Warden.
(See, e.g., In re Tapia (2012)
207 Cal.App.4th 1104, 1113 [contrary to the evidence, inmate denied planning a
murder]; In re Shippman (2010) 185
Cal.App.4th 446, 460-462 [inmate repeatedly denied or minimized past incidents
in which his irrational need to control his romantic partners resulted in
emotional or physical violence].) While
Lockett’s choice of words was ill-advised, his use of the single phrase
“childish antic†does not amount to some evidence he has minimized the
seriousness of, or his role in, the crime.
The Board’s conclusion that Lockett
has failed to develop sufficient insight into the causative factors of the
crime is also factually unsupported by “some evidence.†The Board stated Lockett understood “the
external factors†that led to the crime, that is, he lived in a gang area,
joined the gang, and adopted the gang mentality. The Board also stated it was “confident that,
as far as the life crime itself, you have internalized the factors about the
life crime itself.†But the Board opined
that Lockett needed to further explore the “internal factors that drove you to
go into the gang versus the same youthful individuals who chose to go down a
different path in the same neighborhood. . . . And that’s that piece that we just believe
that you have a little more work to do on.â€
Another commissioner stated, “in terms of your youthfulness and your
perceptions of that, there is some minimization going on. There’s some rationalization going on in
terms of your own inner psychic understandings, your own inner psychic
dealings.†The Board also complained
that Lockett had intellectualized the incident too much in the letter to his
victim.
The Board’s finding is unsupported
by some evidence. Lockett has not denied
committing any aspect of the crime; he has not challenged the version of the
crime as set forth in the probation report, nor has he made implausible excuses
for his actions. At the 2011 hearing,
Lockett told the Board he had been depressed; had trouble adjusting after being
paroled from the youth authority; and had not been mature enough to cope with
the pressures of life. He had “trust
issues,†issues with his parents, and difficulty communicating and expressing
himself. He had been unwilling to accept
authority. His parents did not provide
the emotional support he needed, and he got into trouble with gangs in order to
obtain their attention. This combination
resulted in his being “very unstable.â€
When faced with adult responsibilities, he “went back to [his] old
ways.†He “went to what was easy†for
him. He felt he had been trying to
return to jail because that was easier than going to work. At the time of the crime he was “obsessedâ€
with getting a car so he could travel to Northern California where his father
lived, where he perceived things would be more secure. He felt “out of control,†that is,
“ ‘not knowing where he was going,’ †and in “ ‘a state of
desperation’ †when he was in the Los Angeles area. It “still [did] not make any sense to him why
he did the crime.†Further, he told the
psychologist in 2010 that in the past, he had been “ ‘impulsively
driven,’ †that is, “he would have things build up in him, until he would
decide he had had enough.†A panel
member observed that the latter comment was “insightful.†Lockett told the psychologist that when he
participated in a gang fight or crime, he “did it for the excitement of the
moment,†even though he knew what he was doing was wrong. Additionally, Lockett told the psychologist
that he had learned through attending AA and NA that he used drugs as a teen to
ward off depression and loneliness, as an escape, and as part of the gang
lifestyle. His anger, instability, and
immaturity made him “not . . . able to logically think
correctly. To know that I was doing
something wrong but still be hindered from concluding a better response to
dealing with my frustrations and anger.â€
Lockett told the psychologist, “ ‘The primary reason that would
prevent me from ever doing that [wrong] again is that no one should ever do
harm to others, and that is now my spiritual orientation. I was
a criminal, and an outlaw. I am a
citizen now. I ask for help if I am
stuck now.’ â€
Neither the 2010 Psychological
Evaluation nor the 2007 Psychological Evaluation indicated Lockett lacked
insight into the causative factors of the crime. To the contrary, the 2007 Psychological
Evaluation stated Lockett “evidenced insight into his behavior, especially
describing a turning point experience that brought about a change in his
attitude, perception, and demeanor. This
recognition shifted his focus from self-centeredness to an outer directed
future orientation that accepted responsibility and accountability for his life
actions.†The 2010 Psychological
Evaluation stated that Lockett had accepted responsibility, believed his
sentence was fair and deserved, demonstrated remorse for his actions, and had
the capability to empathetically understand the consequences of his crime and
how his present actions affect others.
“The positive shift[] in his attitudes and in his behaviors since about
2003, is documented in his records, and also in how he conveys the changes that
have been occurring in himself since that time.†Indeed, the Presiding Commissioner at Lockett’s
2009 hearing opined that “you do show insight . . into your life as a whole,
the causative factors of the crime, your gang activity, the whole
bit. . . . [Y]ou show
true remorse.â€
Lockett’s statements indicate he
has significant insight into the internal psychological factors that impelled
him to commit the crimes, as do the 2007 and 2010 psychological evaluations and
the statements of the 2009 panel. The
2011 Board was not, of course, required to accept the findings of either the
psychologists or the earlier Board. (See
Shaputis II, supra, 53 Cal.4th at p.
213; In re Rozzo (2009) 172
Cal.App.4th 40, 62 [parole authority has broad discretion to disagree with the
State’s forensic psychologists].) But
review of the record as a whole does not reveal evidence from which the panel
could reasonably have concluded Lockett’s statements were insufficient and the
psychologists’ impressions were wrong.
As our Supreme
Court has noted, “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.)
The circumstances here contrast
with cases in which
there was evidence of inadequate insight.
In Shaputis II,
of murdering his second wife after he shot her in the neck from close range
after an alcohol-fueled argument. Among
other things, he maintained that the shooting was accidental in the face of
strong evidence to the contrary; he denied he had a problem in the way he
treated women, despite his history of domestic violence and molestation of one
of his daughters; psychological reports reflected that his character remained
unchanged and that he was unable to gain insight into his antisocial behavior
despite years of therapy and programming; and his prepared statement about the
crime was “so vague about the nature of his violent conduct that it might
reasonably be deemed evasive.†(
214.) Under these circumstances, a
“general recognition of moral deficiency and alcohol abuse [was] insufficient
to explain an entrenched pattern of domestic abuse, child molestation, and a
pointblank shooting.†(
In In re Shigemura, supra, 210
Cal.App.4th 440, the inmate’s statements showed she had never “come to gripsâ€
with her role in the crime. (
detached observer, rather than an active participant in the crime, demonstrated
she was still “engaged in a great deal of rationalization of and detachment
from her role in [the victim’s] death.â€
(Id. at p. 457.) In contrast, Lockett testified at the hearing
that he was responsible for carjacking Singh at gunpoint, placing him in the
trunk, and leading officers on the high-speed chase. He has not minimized or implausibly excused
any aspect of his crime. Nothing in the
record before us evidences the kind of inability or refusal to accept
responsibility for, or articulate the reasons for his commission of, the crime.
The Board
also opined that Lockett needed to do more to develop “victim awareness.†To the extent this was offered as a basis for
the parole denial, it is also unsupported by the evidence. One of the commissioners at the hearing asked
how many people Lockett regarded as his
victims. The Commissioner explained that
in addition to the people Lockett named, the victims were all those persons who
indirectly suffered as a result of Lockett’s behavior. The Commissioner gave the following
example: as the result of a robbery, a
child would go to bed hungry; as a result of the hunger, the child would cry;
the constant crying would lead the child’s parent to abuse the child; and the
abused child might grow up to abuse his or her own children. Thus, the victims of Lockett’s crimes
included all those persons who were indirectly affected. Lockett readily agreed with this broader view
and answered the commissioner’s questions appropriately.
understood his crime must have caused the victim much stress, anger, and
frustration, and that the crime was “a horrible thing.†He acknowledged that the victim might “still
fear being a victim,†might fear activities such as going out at night or being
alone in parking lots as a result of his crime, and that such fears might
adversely impact the victim’s life.
Lockett told the psychologist in 2010 that what he did to the victim was
very traumatic, and would probably affect the victim’s interactions. The psychologist opined that Lockett had the
capability for empathetic understanding of the consequences of his actions. Thus, the record does not contain evidence
that Lockett lacks victim awareness.
b.
Relapse prevention plan.
At the hearing, the Board asked
Lockett if he had a “relapse prevention plan.â€
Lockett replied that he did. He
explained he had participated in a men’s support group while in prison, which
had an outside branch in Oakland where he hoped to parole. He anticipated being able to rely on that
group for help, training, assistance dealing with stress, and to discuss “core
emotions.†AA and NA also had active
branches in the area where he hoped to parole.
Moreover, he had been preliminarily accepted into a program offered
through San Francisco State University.
In regard to his general parole plans, Lockett explained he would obtain
religious support from the Islamic community and the Zaytuna Institute of
Berkeley. He had explored several
options for transitional living, including the Rubicon International program
and the Delancey Street program, which a panel member characterized as a “very,
very well thought of and respected program.â€
The Board viewed Lockett’s efforts
at self-help and programming favorably.
Panel members stated, “you’ve done a considerable amount of educational,
vocational, self-help and parole planning.â€
“You are able to do self-study and apply it to yourself. You’ve done a tremendous job at that.†“Your self-help programming . . . is
definitely showing in terms of your responses and your presentation
today.†“You’ve done a lot . . . . And we recognize your accomplishments, and
they are many.†The only area of purported
deficiency cited was Lockett’s failure to internalize a “relapse prevention
plan.†The Board explained: “You have a good piece of that plan in place
with the research you’ve done for your parole.
And we will commend you on that because you’ve done tremendous
work. But the piece that’s missing is
the more important steps in a plan that will . . . assist you in remaining
clean and sober when you’re out . . . and . . . the restrictions are
gone. . . . You’ve got
the programs. You’ve got the connections. You’ve got where you would turn. What you don’t have is the transition. What are my triggers? What do I have to avoid? How do I make that look? And you have to know those things not just,
you need it on a piece of paper, but you need to know it so that it’s a part of
who you are. You’ve internalized
it.†Such a plan was necessary in light
of Lockett’s teenage history of substance abuse.
As set forth ante, the record shows Lockett used marijuana and cocaine as a
youth. The psychologist stated that Lockett needed to continue substance abuse
programming if released on parole. If he
did so, his “prognosis for his ability to refrain from future use in the free
community appear[ed] to be good . . . , pending his
continuing with substance abuse programming, and his ongoing clarification of
issues he might need to work with related to substance abuse as they apply to
his life at present, and also as he would need to deal with them in the future,
when on parole.†Conversely, his risk
for violence would go up if he engaged in substance abuse.
Thus, the Board could reasonably
conclude that to demonstrate suitability for parole, Lockett would have to show
he had taken steps to address substance abuse both in and out of prison. But the record reflects he had done so. He attended NA and AA for a period while
incarcerated. The 2010 Psychological
Evaluation stated: “Inmate Lockett
appeared to realistically assess both his past use of substances, and the plans
he has for relapse prevention, while incarcerated, and also when living in the
community.†Furthermore, the evidence
showed Lockett had “identified his triggers.â€
The 2010 Psychological Evaluation explained that through attending AA
and NA, Lockett “discovered his issues with drugs, were more related to the
causes that led him to use drugs, rather than being addicted to, or dependent
on drugs. He came to the conclusion he
used drugs to ward off depression and loneliness. The drugs served as an escape. He also recognized his addiction to the gang
lifestyle, and some of his drug use was in part related to that as well.â€
Moreover, there was no evidence
Lockett was addicted, or that at the time of the hearing, had a
related to substance abuse. His pattern
of use as a teenager showed he was able to cease use without withdrawal
symptoms. Significantly, there was no
evidence the life crime was related to substance abuse. Given the Board’s praise for the bulk of
Lockett’s relapse plan, his participation in NA and AA, and the statements
showing he has identified his “triggers,†no evidence supports a conclusion
that the state of Lockett’s relapse plan indicates current dangerousness. (Cf. In
re Stevenson (2013) 213 Cal.App.4th 841, 869-870 [shortcomings in relapse
plan were a factor supporting unsuitability finding where the inmate had a long
history of alcohol and drug abuse; he abruptly quit a job to focus on selling
drugs; he sold crack cocaine for months before the commitment offense; drug use
was a factor in the commitment offense; he continued substance abuse for some
time while in prison; he had been diagnosed with alcohol and cannabis abuse;
and the psychologist opined that his relapse plan was deficient, increasing his
risk of dangerousness]; see generally In
re Loresch (2010) 183 Cal.App.4th 150, 161-162.)
c. Unstable
social history and prison misconduct.
The Board
concluded Lockett’s “unstable social history†weighed against release. It referenced Lockett’s youthful gang
membership, drug use, and failure to profit from grants of probation and parole
from the CYA.
A prior
record of violence and an unstable social history are factors tending to show
unsuitability for parole. (Cal. Code
Regs., tit. 15, § 2281, subd. (c)(3).)
Here, Lockett’s teenage substance abuse, pre-incarceration gang
membership, and juvenile record are temporally remote, immutable factors, occurring approximately 17
years before the 2011 hearing. Where the
Board considers immutable factors to be predictive of current dangerousness,
“it must articulate why that is the case.
[Citation.] ‘ “[I]mmutable
facts such as an inmate’s criminal history†. . . do not by
themselves demonstrate an inmate “continues
to pose an unreasonable risk to public safety.†’ †(In re
Denham (2012) 211 Cal.App.4th 702, 717; Lawrence,
supra, 44 Cal.4th at p. 1221; In re
Sanchez (2012) 209 Cal.App.4th 962, 975.)
These factors remain relevant to the assessment of Lockett’s
current dangerousness only if something in Lockett’s pre- or post-incarceration
history, or current demeanor and mental state, “indicate[] that the
implications regarding the prisoner’s dangerousness†deriving from them remain
probative. (Lawrence, at pp. 1214, 1221; In
re Ryner (2011) 196 Cal.App.4th 533, 545.)
The Board did not articulate such a nexus, and the record does not
reveal one.
As we have
noted, Lockett was not diagnosed with a drug or alcohol dependency. The psychologist opined that his
pre-incarceration substance use was social and related to his gang affiliation,
not criminality. He was never
disciplined in prison for substance abuse-related offenses. Alcohol and drugs played no role in the
commitment offense. While incarcerated,
he attended available substance abuse programming consistently and was
“incorporating what he has learned into his rules of thinking and
behavior.†The 2010 Psychological
Evaluation determined that his prognosis for his ability to refrain from
substance abuse in the free community appeared good, providing he continues
with substance abuse programming. He
“realistically assess[ed] both his past use of substances, and the plans he has
for relapse prevention.†Under these
circumstances, the Board’s mere reference to Lockett’s prior substance use does
not provide any evidence he currently presents a danger to society. (See In
re Loresch, supra, 183 Cal.App.4th at pp. 161-162.)
Nor does
Lockett’s juvenile gang membership currently provide evidence of current
dangerousness. Lockett formally
debriefed from the gang in approximately 2003.
This process
required that staff evaluate Lockett to conclude he had actually dropped out of
the gang and entailed Lockett’s cooperation in providing information about the
gang’s structure, activities, and affiliates.
(See Cal. Code Regs., tit. 15, § 3378.1.) Lockett told the Board he has rejected the
gang lifestyle and actively encourages other inmates to stay away from prison
gangs. The Board appears to have
credited these averments. The Board did
not explain how Lockett’s juvenile gang membership demonstrates current
dangerousness. Given that Lockett is no
longer gang-affiliated, his juvenile gang membership provides no evidence of
current dangerousness. Similarly, the
Board articulated no nexus between Lockett’s failures to profit from juvenile
probation and current dangerousness.
(See In re Sanchez, supra, 209
Cal.App.4th at pp. 974-975 [inmate’s two probation failures 17 years earlier
did not demonstrate a current risk to public safety]; see generally
1312.) Rote recitation of immutable historic factors does not
suffice to establish current dangerousness.
(Id. at p. 1304.) The record does not provide any other
evidence of an unstable social history.
The 2010 Psychological Evaluation concluded Lockett has “no evidence of
relationship instability.†(See
p. 717.)
The Warden argues that Lockett’s
prison misconduct supported the Board’s finding. The Board did not, however, cite Lockett’s
disciplinary history as a factor supporting its unsuitability finding. To the contrary, the Board stated the
only area of institutional adjustment that was of concern was Lockett’s relapse
plan. The Board observed that
“disciplinary-wise you have managed to stay out of trouble since 2003. And . . . your positive efforts to
rehabilitate yourself have led to you being assaulted in 2009.[
who . . . seems to have set himself on a course that you’re
going to finish out.†Our review of the
record for “some evidence†is not limited to the evidence directly specified by
the parole authority. (
214, fn. 11.) But here, the Board
appears to have viewed Lockett’s nine years of discipline-free behavior as a
positive factor overcoming any negative inferences that might be drawn from his
earlier prison misconduct. We are not at
liberty to substitute our judgment for the Board’s on this point.
d. Risk
assessment.
Finally, the Board pointed to
the fact that Dr. Lehrer, the psychologist who prepared the 2010 evaluation,
concluded Lockett fell within the “[m]oderate range for violence in the free
community.†(Italics omitted.) Dr. Lehrer relied upon three diagnostic
tools: the PCL-R, the HCR-20, and the
LS/CMI. The PCL-R and the HCR-20
estimate the risk for future violence in the community. The LS/CMI estimates the risk for general
recidivism. Lockett scored in the
moderate or medium range in each. However, Dr. Lehrer explained that Lockett’s
risk assessment was elevated due in large part to historical factors. As to his score on the HCR-20, Dr. Lehrer
explained: “Given that the bulk of data
is historical, then by definition, these scores are not easily amenable to
significant change, regardless of the number of years of his
incarceration. [¶] It should also be noted that the Inmate’s
historical record represents a very large component contributing to his overall
moderate risk rating. The other areas of
the measure currently have very little contribution to his risk of
violence. Thus, while Inmate Lockett may
never have a less elevated total score on this measure, his maintaining
prosocial functioning can over time continue to reduce the significance of his
risk of violence on this measure.†No
current factors “were endorsed,†that is, elevated his risk.
Similarly,
in regard to the PCL-R, Dr. Lehrer explained:
“Inmate Locket[t]’s scores on the PCL-R take into account a combination
of his history as reviewed, and his current clinical
presentation. . . .
[I]tems must be scored based upon the lifetime history of the
individual, rather than upon more recent behavior alone.†As to the LS/CMI, the items which contributed
to increased risk were Lockett’s prior convictions, the fact he was arrested or
charged prior to age 16, his punishment for institutional misconduct, his
history of expulsion and suspension from school, his acquaintance with
criminals, his past drug abuse, his personality disorder, his “early and
diverse antisocial behaviors,†his gang involvement, and his history of
physical violence with a weapon.
In regard
to Lockett’s diagnosis of an antisocial personality disorder, Dr. Lehrer’s
report explains: “Inmate Lockett engaged
in a pervasive pattern of antisocial behaviors, violence and criminality from
about the age of 11, extending until about 2002. He does meet the criteria of having had a
conduct disorder based on his history of criminality and aggression as an
adolescent. Since 2002 he has been
demonstrating greater controls and personal maturation. This history is best diagnosed as Antisocial
Personality Disorder on Axis II.â€
Thus, the
vast majority of the factors elevating Lockett’s risk assessment and resulting
in his personality disorder diagnosis were historical. Lockett’s elevated scores could theoretically
be used to deny parole forever. Using a
risk assessment elevated almost entirely by preconviction historical factors is
little different than relying upon the heinous nature of a commitment offense
to deny parole year after year. As with
the evaluation of other immutable historical factors (see Lawrence, supra, 44 Cal.4th at pp. 1212-1214), a risk
assessment that is elevated due to historical factors supports a parole denial
only if it provides “some evidence†of current dangerousness. Such a test score is probative of current
dangerousness only to the extent the historical facts themselves remain
probative of current dangerousness. As
we have discussed, there is no evidence that they do so here.
In sum,
because the Board’s unsuitability determination was not based on “some
evidence,†we grant Lockett’s petition for a writ of habeas corpus and remand
for a new hearing in accordance with due process of law. (In re
Prather, supra, 50 Cal.4th at p. 244.)
The Warden requests that because section 3043 requires at least a 90-day
notification period to the victim before a parole hearing, the deadline for a
hearing on remand be set for no less than 120 days after this opinion’s
finality.
well-taken, and we order the hearing scheduled accordingly on remand.
DISPOSITION
Lockett’s petition for a writ of habeas
corpus is granted. The matter is
remanded to the Board of Parole Hearings for a new hearing comporting with due
process, to be held within 120 days of the finality of this opinion. In the interests of justice, this opinion is
made final as to this court five days after its filing.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
KLEIN,
P. J.
KITCHING,
J.
name="_ftn1" title="">[1]
victim’s first name is variously spelled Dalbir, Dabir, and Dalveer. It is unclear which spelling is correct.
name="_ftn2" title="">[2] All further undesignated statutory
references are to the Penal Code.
