In re Ouellette
Filed 7/23/12 In re Ouellette CA2/5
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
In re MARK OUELLETTE,
on Habeas Corpus.
B238365
(Los Angeles
County
Super. Ct.
No. BH007839)
APPEAL from
an order of the Superior Court
of
County.
Patricia M. Schnegg, Judge.
Affirmed.
Rich
Pfeiffer, under appointment by the Court of Appeal, for Petitioner.
Kamala D.
Harris, Attorney General, Jennifer A. Neill, Senior Assistant Attorney General,
Anya M. Binsacca and Stacey D. Schesser, Deputy Attorneys General, for
Appellant.
_______________
Appellant Vimal Singh, Acting Warden of the California
Medical Facility, appeals from the Los Angeles County Superior Court's November 11, 2011 order granting
life prisoner Mark Ouellette's petition for writ of habeas corpus. The order reverses the decision of the Board
of Parole Hearings denying parole to Mr. Ouellette.
Appellant
contends that the superior court erred in reversing the Parole Board's decision
because some evidence supports the Board's decision to deny parole to Mr.
Ouellette. We affirm the superior
court's order.
Background
On November 6, 1992, Mr. Ouellette
killed two and a half year old Jacob, apparently by smothering him. Mr. Ouellette was living with Jacob's mother
Veronica at the time. The autopsy showed
that multiple traumatic
injuries had been inflicted on Jacob in the last month of his life,
including deep bruising, broken ribs and damages to his back. Witnesses reported that Jacob was afraid of
Mr. Ouellette and would stay in his room for hours to avoid Mr. Ouellette. A witness also reported that Mr. Ouellette
would squeeze Jacob's cheeks so hard that the child developed canker sores on
the inside of his mouth. It appears that
Jacob had been subjected to physical and mental abuse for about three months
before his death.
Mr.
Ouellette ultimately admitted to police that he had put his hand over Jacob's
face and shook him until he stopped crying.
He also admitted that he grabbed Jacob's face, told him to be quiet and
smothered him. Mr. Ouellette pled guilty
to second degree murder. He was
sentenced to a term of 15 years to life in state prison. Mr. Ouellette was 23 years old at the time of
the crime. He had no prior
convictions. His minimum parole
eligibility date was November 2, 2002.
In 2008,
the Board granted parole to Mr. Ouellette.
This decision was reversed by the Governor, on the ground that Mr.
Ouellette lacked insight into the causes of his crime.
Mr.
Ouellette's next parole hearing was in 2010.
He was 42 years old at the time of the hearing, and had spent 18 years
in prison. Mr. Ouellette explained the
causes of his crime as follows: "I
think the first time I was introduced to meth was late in high school. And my drug use escalated to about a year and
a half before the murder. I was using it
daily." "I had a lot of pain
in my life that I was making with drug use." "I think it originated with the absence
of my father in my life, which is why I gravitated towards hanging around with
older people." "I always had a
void in my life with my father. I felt
abandoned, you know. I never had answers
to why my father was never a part of my life, and I stewed on that. And I believe when I got introduced to drugs,
that was what I was using to fill that void." When asked why he took his anger out on
Jacob, Mr. Ouellette replied: "I
was a hurt person, and I wanted to hurt somebody." "It was just releasing aggression on
somebody that I felt safe abusing him. I
didn't think I was going to get caught."
Parole was
opposed by the Los Angeles County Sheriff, the Los Angeles County District
Attorney's Office and the victim's family.
Four members of the victim's family spoke at the hearing: Jacob's father Mike Anneler; Jacob's
grandmother Charlotte Navin; Jacob's mother Veronica Lindquist; and grandfather
Ron Scott.
The 2010
Panel denied parole, primarily on the ground that Mr. Ouellette lacked insight
into the reasons he committed the life offense, and so would pose an
unreasonable risk of danger to society and a threat to public safety. The Panel found no other fault with Mr.
Ouellette, and commended him for his positive programming, stating: "Your programming excels above most
other inmates. And we acknowledge
that. You've reduced your custody and
your classification levels as low as you can.
You've completed vocational programs, and then you continued to excel in
those programs even after completing them, like welding where you continue to
weld after you've finished. You've
maintained an excellent work record in just about every job I could find on
record. You attended college, taken
college classes on more than one occasion, and you've made a legitimate effort
to complete the college. And you've
participated in numerous self-help. We
discussed some of the recent self-help today, but the record shows that you've
been attending self-help for a long time.
And then you've continued on and actually continued to help others
through facilitating in those programs and serving as a secretary and so on, as
evidenced with the New Beginnings that we talked about today and your secretary
in AA or NA. And we acknowledge all
that. And you've done all this and
managed to maintain disciplinary free."
The Panel
also noted: "To me, it looks like
[your family has] always been pretty supportive of you through this whole
process. That's wonderful. . . . We
looked at that, and we found that as a positive for you." The Panel commended Mr. Ouellette's parole
plans, stating: "And you've made
some really wise decisions with regard to your possible parole date at some
point. And that being to go to a
transitional living home. I mean that is
a selfless kind of a decision that this Panel does recognize as something that
would be very good for you to, as it suggests, transition back out."
Mr.
Ouellette's 2008 psychological report found that he is an overall low risk of
future violence. The report found that
Mr. Ouellette's level of insight was "excellent," he was an excellent
prisoner and accepted responsibility for his actions. The psychologist found that Mr. Ouellette had
matured significantly in prison, was remorseful, and had done "everything
in his power to improve himself."
The psychologist opined that Mr. Ouellette had a strong commitment to
sobriety and will likely do well if released on parole.
Mr.
Ouellette's previous report, from 2001, was equally positive. That report states that Mr. Ouellette
"has matured in a very pro-social directions during the period of his
incarceration" and his "level of insight, remorse and empathy is
impressive." The report found that
Mr. Ouellette had "excellent self-control" and the "ability to
function cheerfully and successfully without relying upon illegal substances." The report concluded that Mr. Ouellette
"appears to be a rehabilitated person" and if he were released
"it is very likely that he would continue to be violence-free and maintain
his very constructive and socialized behavior developed through his positive
programming at CDC."
Discussion
Appellant contends that some
evidence supports the Panel's decision to deny parole, and so the decision of
the superior court reversing the Panel must be reversed. We do not agree.
The trial court's findings were
based solely upon documentary evidence.
Accordingly, we independently
review the record. (
677.)
In
determining whether to release a life inmate to the public, the parole
authority considers "[a]ll relevant, reliable information available"
and any "information which bears on the prisoner's suitability for
release." (Cal. Code Regs., tit.
15, § 2402,
subd. (b).)
"[W]hen a court reviews a
decision of the Board or the Governor [denying parole], 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.
[Citations.]" (
1212.) "This standard is
unquestionably deferential, but certainly is not toothless." (Id.
at p. 1210.)
"The 'some evidence' standard
is intended to guard against arbitrary parole decisions." (In re
Shaputis (2011) 53 Cal.4th 192, 215 (hereafter Shaputis II).) A reviewing
court must uphold the Board's decision "unless it is arbitrary or
procedurally flawed." (
1. Commitment offense
There is
some evidence to support the Panel's finding that Mr. Ouellette's commitment
offense was especially heinous, atrocious, or cruel. The record shows that Mr. Ouellette abused
the vulnerable victim over several months before killing him.
The Board may base a denial of parole
upon the circumstances of the offense only if the facts are probative of the
"ultimate conclusion that an inmate continues
to pose an unreasonable risk to public safety." (In re
Lawrence, supra, 44 Cal.4th at p. 1221.)
Where, as here, the life prisoner has served more than his suggested
base term, the circumstances of the life offense will rarely support a finding
of unsuitability for parole. (
Here, the Board found: "The offense was carried out
dispassionately. Certainly, it was done
over a prolonged period of time. You
didn't have any prior record, which is a good thing for you. You admitted to it relatively quickly after
the initial, you know, playing the game.
So we did not find your prior record was a problem."
2. Lack of insight
An inmate's
failure to gain insight into his crime despite years of rehabilitative
programming may indicate a current risk of danger. (See In
re Shaputis (2008) 44 Cal.4th 1241, 1260 (hereafter Shaputis I).)
The Panel told Mr. Ouellette: "The biggest problem that we had was the
insight and the lack of connecting the dots."
The Panel
explained: "[We] just didn't hear
why there was so much rage. You had
virtually no violence that we could see, virtually no violence prior to the
crime, and virtually no violence after the crime. It's this one circumstance that we are dying
to have an explanation for. And we
simply didn't get it today."
In fact, Mr. Ouellette provided an
explanation for the crime at the hearing.
Mr. Ouellette explained he had a lot of pain from his abandonment by his
father and felt a void in his life. He
explained that he hurt the victim because "I was a hurt person, and I
wanted to hurt somebody." He picked
the child to hurt because he thought he would not be caught. "It was just releasing aggression on
somebody that I felt safe abusing him. I
didn't think I was going to get caught."
He was a long-time drug user and he believed that his drug abuse
affected his behavior and contributed to his loss of control and violence.
The Panel
rejected this explanation, opining:
"It seems to me that the issue with regard to your father leaving
at a very young age, and I didn't get the sense, the understanding, nor the
reasoning from you that it was anything more than just, you know, the
unfortunate reality of what society faces today in just divorce, that you met
him some time later. We just didn't get
the sense that you had the depth of understanding that would vault you from
being upset over your dad and mom breaking up, namely your dad, vaulting it to
killing a child years later."
There is no
evidence to support the Panel's apparent belief that a child cannot be deeply
hurt by "the unfortunate reality" of "just divorce" or that
such hurt cannot result in the child later inflicting physical pain on another
child. There is also no evidence to
support the Panel's statement that what Mr. Ouellette experienced was
"just divorce" or that he was just "upset over [his] dad and mom
breaking up." Mr. Ouellette stated
that his pain was caused by his father's complete abandonment of him when Mr.
Ouellette was a year old. Mr. Ouellette
saw his father only two times in his entire life.
by this. He described a "void"
in his life, feeling a lack of self-worth and feeling deep emotional pain. In his 2001 evaluation, that state
psychologist wrote that Mr. Ouellette reported "a significant amount of
emotional pain in relation to his father never being present in his
life." While the state psychologist
did not directly address this statement, the psychologist reported that
"there was no indication of any problems [with Mr. Ouellette] concerning
appropriate contact with reality."
The psychologist opined that Mr. Ouellette's "insight is excellent
and his judgment and common sense are more than competent." The psychologist found "no indication of
any need for psychological counseling."
Thus, clearly, the psychologist found Mr. Ouellette's claim of a
"significant amount of emotional pain" to be based in reality and to
be a reasonable response to abandonment.
For the Panel to disregard this assessment and take the position,
unsupported by any evidence in the record, that the events of Mr. Ouellette's
childhood could not possibly have caused significant pain to him is arbitrary
and capricious.
Appellant suggests that the Panel
found that Mr. Ouellette's discussion of his drug use did not sufficiently
explain the murder. Appellant contends
that Mr. Ouellette never explained why "his substance abuse gave way to
his rage and brutality." We see no
statements by the Panel addressing Mr. Ouellette's explanation of the role of
drugs in the murder. The Panel did state
that "It seems as though certainly, drugs, alcohol, and in this case meth
is certainly a lubricant. And it gets
people to do the kinds of things they would not normally do." Thus, both appellant and the Panel appear to
believe that the drugs Mr. Ouellette used simply removed his inhibition and
permitted him to act on his violent impulses.
They seem to believe that there must have been some pre-existing rage or
brutality that the drugs released.
There is no evidence in the record
to support the view that methamphetamine is simply a
"lubricant." The only evidence
of the effects of methamphetamine comes from the report of the state
psychologist who examined Mr. Ouellette in 2001. The psychologist explained: "It is well documented that
methamphetamine dependence leads to irritability and volatile mood swings,
which frequently leads to dangerous aggression." Thus, methamphetamine creates anger and aggression in a user, it does not simply remove
the user's inhibitions and allow him to act on pre-existing anger and
aggressive impulses. The psychologist
opined: "In sum, his mental
condition, based upon his substance abuse, was a primary factor in his
homicidal behavior." It was
arbitrary and capricious for the Panel to reject the psychologist's explanation
of the "well documented" effects of methamphetamine and rely on their
own belief, unsupported by any evidence, that methamphetamine is a
"lubricant."
Appellant
also suggests that drug abuse cannot provide an explanation for the crime
because "while many suffer from addiction, not every addict reacts or
behaves as Ouellette did when he was under the influence." We fail to see the significance of the fact
that not every drug addict commits a murder.
Some do. Mr. Ouellette has explained
why he committed a murder.
name="_ftnref2" title="">[2] He cannot possibly be expected to explain why
other addicts do not.
Mr. Ouellette's explanation of his
mental state and motivation are entirely consistent with the record, entirely
plausible and do not reflect a lack of insight.
There are no material factual discrepancies between the evidentiary
record and Mr. Ouellette's account of his conduct and its causes. It appears that the lack of insight
conclusion by the Board is equivalent to a mere refusal to accept evidence that
Mr. Ouellette has acknowledged the material aspects of his conduct and offense,
shown an understanding of its causes, and demonstrated remorse. (In re
Ryner (2011) 196 Cal.App.4th 533, 549.)
Even assuming that there was some
evidence to support the Panel's finding that Mr. Ouellette had only limited
insight into the reasons for his pain and anger, there is no evidence that such
limited insight makes him a current risk to public safety. Lack of insight supports a denial of parole
only if it is rationally indicative of the inmate's current dangerousness. (Shaputis
II, supra, 53 Cal.4th at p. 219.)
The Panel did not consider whether
any limitations in Mr. Ouellette's insight into the causes of his anger showed
that he was currently dangerous, much less explain how limited insight made Mr.
Ouellette currently dangerous.
The Panel believed that Mr.
Ouellette's crime was caused by his anger, and Mr. Ouellette acknowledged that
anger was a major contributory factor in the crime. Mr. Ouellette explained at length and in
detail how he addressed the anger in his life.
Mr. Ouellette elaborated: "I
lacked the ability to empathize and sympathize.
I work a 12-step program. I put
myself in other people's shoes when I'm confronted with situations. And that's how I've learned to empathize and
sympathize. . . . I'm not an angry person anymore." Mr. Ouellette also took Anger Management
classes and read Anger Management books.
He explained that "I've learned to accept setbacks and
disappointments without being angry about it.
I accept life on life's terms. I
couldn't do that before." He
clarified that he does still get angry about some things, such as the
Governor's reversal of his previous grant of parole, but "I don't stew on
anger. I address my anger. I find out the true cause of my anger, and I
move forward. I do something positive in
its place." When he learned about
the reversal, he didn't "choose a destructive action. I was angry about it, and I chose to do
something positive and get involved in another self-help group and work through
it. Whatever setbacks I have, I work
through it."
Mr. Ouellette never received a
disciplinary CDC-115 in prison. His 2008
evaluation found that Mr. Ouellette "has maintained good control over his
impulses while in prison. He has not
been prone to angry outbursts or self-destructive behavior while in the
CDCR." The psychologist opined that
Mr. Ouellette "has coped well with prison stressors." The psychologist noted that Mr. Ouellette
"does not present as angry or negative in any way."
Even assuming for the sake of
argument that Mr. Ouellette did not fully understand the source of his anger at
a child twenty years ago and that this lack of insight meant that he might
become angry in some point in the future, there is no evidence that such anger
would make him a danger to society. The
evidence shows that Mr. Ouellette has learned to manage his anger in a
constructive way. In light of Mr.
Ouellette's demonstrated ability to recognize and deal with his anger under
stressful situations, some limitation in his insight as to the childhood roots
of his anger is not a rational indicator that Mr. Ouellette would unreasonably
endanger public safety if released. (
85, 99-100.)
Disposition
The trial court's November 11, 2011
order granting Mr. Ouellette's petition for writ of habeas corpus is affirmed. The Board is ordered to vacate its decision
denying parole and thereafter conduct a new parole hearing for Mr. Ouellette
within 120 days, in accordance with this opinion and In re Prather (2010) 50 Cal.4th 238.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG,
J.
I concur:
KRIEGLER,
J.
I concur in the judgment granting the habeas corpus
petition. I would issue the writ of
habeas corpus solely on the ground the findings of the Board of Prison Terms
(the board) do not support the March 8, 2010 order. (See In
re Lawrence (2008) 44 Cal.4th 1181, 1207; In re Dannenberg (2005) 29 Cal.4th 1061, 1094-1096, fn. 16.) The board could have viewed the prisoner’s
explanation the killing was inextricably related to his drug addiction as
evidence of a lack of insight. (
216; In re Mims (2012) 203
Cal.App.4th 478, 488.) Drug addicts
rarely, if ever, kill young children.
But here the board, in its findings and interactions, credited the
prisoner’s explanation of the relation of his drug use to the killing as
entirely truthful. Under these
circumstances, relating drug addiction to once in a lifetime conduct can be
viewed as evidence of keen
insight. And even if the prisoner lacks
insight, the board could find he is not a serious threat to public safety. My point is the board is the arbiter of
whether the drug usage explanation is evidence of insight. Here, the board’s findings do not support an
absence of insight finding. Further, the
board never found this was one of those rare cases where the existence of a
single isolated fact could possibly be sufficient to support a future
dangerousness finding. (
principled, ethical and prompt briefing.
It is appreciated.
TURNER,
P. J.
father once in a chance encounter in a store when he was visiting
relatives. Mr. Ouellette was six or
seven years old. His mother introduced
him to his father and "we shook hands and that was it." The next time Mr. Ouellette saw his father
when he was 15 years old. His father
invited him to come for a visit the next year.
So, when Mr. Ouellette was 16 years old, he went to stay with his
father. The visit did not go well and
lasted only two weeks. That was the last
time Mr. Ouellette ever spoke with his father.
crime was not limited to his methamphetamine use, but also included other
factors such as his emotional state while using methamphetamine.
