In re Reed
Filed 6/7/13 In re Reed CA4/1
Opinion following order vacating prior opinion
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
OPINION
AFTER TRANSFER FROM THE CALIFORNIA
SUPREME COURT
COURT
OF APPEAL - FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re MELVIN R. REED, JR.
on
Habeas Corpus.
D058592
(San Diego
County
Super. Ct.
No. SCD114255)
Petition
for Writ of Habeas Corpus, Howard H.
Shore, Judge. Relief denied.
Charles R.
Khoury, Jr., under appointment by the Court of Appeal, for Petitioner.
Kamala D.
Harris, Attorney General, Julie L.
Garland, Senior Assistant Attorney General, Phillip Lindsay and Michael Rhoads,
Deputy Attorneys General, for Respondent and Real Party in Interest.
In 1996,
Melvin Reed was convicted of assault on a
child resulting in death and was sentenced to a prison term of 15 years to
life. Reed, now 36 years old, has been
incarcerated for more than 17 years.
At Reed's
first parole hearing, the Board of Parole Hearings (BPH) found him unsuitable
for parole. The BPH found the commitment
offense was particularly egregious under many indices and, considering numerous
other factors (including Reed's prior criminal record, his disciplinary record
while incarcerated, his failure to gain insight into the commitment offense,
and his psychological evaluation), Reed was not currently suitable for
parole. The BPH further concluded a 10-year
denial of parole was appropriate under the circumstances.
Reed petitioned the trial court for
habeas corpus. We issued an order to
show cause, the People filed a return, and Reed filed a traverse. Reed asserted (1) the BPH's decision to deny parole violated
due process because its conclusion that he posed an unreasonable risk of danger
to society if released on parole was contrary to the evidence that he was not
currently dangerous, and (2) the amendments to
Penal Code section 3041.5, subdivision (b),
adopted after the voters approved Proposition 9,
otherwise known as the "Victims' Bill of Rights Act of 2008:
p. 128, hereafter Marsy's Law), when applied to him violated ex post
facto principles.
In our
original opinion, filed July 25, 2011, we concluded that, although there was
sufficient evidence from which the BPH could have concluded Reed was not
currently suitable for parole, the scheduling of Reed's next suitability
hearing under the 10-year provision pursuant to the amendments to section
3041.5, subdivision (b), violated ex post facto
principles. Accordingly, we affirmed
in part and reversed in part. However,
the Supreme Court granted the People's petition for review and, by its
subsequent order of May 1, 2013, the Supreme Court has directed that we vacate
our decision and reconsider the cause in light of In re Vicks (2013) 56 Cal.4th 274.
Our original opinion is vacated and replaced by this opinion.
We reaffirm
our original conclusion that the BPH's decision to deny parole was supported by
some evidence, pursuant to the guidance provided by In re Lawrence (2008) 44 Cal.4th 1181 (
conclude Vicks compels us to reject
Reed's claim that application of the amendments to section 3041.5,
subdivision (b), to inmates whose commitment offense
was committed prior to the effective date of Marsy's Law violates ex post facto
principles.
I
FACTS
A. The Commitment Offense
In 1996,
Reed was convicted of physically assaulting a child resulting in the child's
death. Reed was under the influence of
drugs when the child, his girlfriend's 17-month old son, woke Reed with his crying. Reed struck the child in the abdomen with
such force that his liver was forced against his spine, lacerating the liver
and causing death. Because the facts of
the crime support the BPH's determination that the commitment offense was particularly heinous, atrocious, or cruel (Cal. Code Regs.,
tit. 15, § 2402, subd. (b)),
name="_ftnref2" title="">[2]
and Reed does not dispute that this aspect of the BPH's determination is
supported by the requisite level of evidence, we do not further detail the
commitment offense.
B. Reed's Criminal Background
Reed had a
prior juvenile criminal history of both violent and nonviolent offenses.
C. Reed's Disciplinary Record in Prison
During his
time in prison, Reed received numerous "CDC 115's," the latest of
which was in 2004, and many of those violations involved violence. During his time in prison, he has also
received several "CDC 128's." "[A] CDC 115
documents misconduct believed to be a violation of law which is not minor in
nature. A form 128 documents incidents
of minor misconduct." (
389.)
D. Reed's Psychological Evaluation
A
psychologist evaluated Reed and his report was received by the BPH without
objection. The psychologist interviewed
Reed and, based on the interview, concluded Reed did not have insight into the factors
that led to his conduct, was unable to express genuine remorse for his conduct,
and had not availed himself of the opportunities in prison to acquire insight
or develop the empathy for others necessary to function appropriately in
society.
The
psychologist also evaluated Reed's potential for violence under two separate
empirically-based assessment guides,
and evaluated Reed's general risk of recidivism under another empirically
based-assessment guide.
name="_ftnref4" title="">[4] Reed's PCL-R score placed him in the "moderately
high range" for future violence, and the tests suggested tendencies toward
"Glibness, Superficial Charm, . . . Pathological Lying
. . . , Conning, Manipulative, Lack of Remorse or Guilt, Shallow
Affect, Callous/Lack of Empathy, Parasitic Lifestyle, Poor Behavioral Controls,
. . . Impulsivity, Irresponsibility, [and] Failure to Accept Responsibility
for Own Actions . . . ." Reed's score on the HCR-20 placed him in the "moderately
high" risk category for violent recidivism. The LS/CMI placed him in the "high"
category for risk of recidivism. The
psychologist concluded, based on his clinical assessment and the empirical
guides, that Reed presented a "relatively [h]igh risk for violence
in the free community."
E. Reed's Rehabilitative Efforts
Reed's
participation in institutional programming and self-help groups was sporadic,
and his educational and vocational training was sparse.
F. Parole Plans
The
evidence supports the BPH's conclusion that Reed's parole plans were "non-existent":
he had not identified a facility willing to accept him on release, had no job arranged,
and had no letters offering financial or other support on his release from
prison.
II
HISTORY
OF PROCEEDINGS
A. The BPH Proceedings
Reed's
minimum eligible parole date was in 2010.
At his 2009 parole hearing, the BPH considered Reed's testimony, as well
as the written reports, and concluded he was unsuitable for parole because he posed an unreasonable risk of danger to society
if released. The BPH relied on
the facts of the crime, his prior criminal record, his current level of insight
into or acceptance of responsibility for the crime, his disciplinary record
while in prison, his psychological evaluation, his limited programming while
incarcerated, and his lack of parole plans to conclude he was not currently
suitable for parole. The BPH scheduled Reed's
next parole eligibility hearing 10 years from his 2009 hearing pursuant to
section 3041.5, subdivision (b)(3)(C).
B. The Habeas Proceedings
Reed filed
a petition for writ of habeas corpus in the San Diego County Superior Court, which denied
the petition, finding there was some evidence to support the BPH's
decision. Reed then petitioned this
court for a writ of habeas corpus.
III
LEGAL
STANDARDS
A. The Parole Decision
The
decision whether to grant parole is a subjective determination (
655 (Rosenkrantz)) that should be
guided by a number of factors, some objective, identified in section 3041 and
the BPH's regulations. (Cal. Code Regs., tit. 15, §§ 2281, 2402
the suitability determination, the BPH must consider "[a]ll relevant,
reliable information" (Cal. Code Regs., tit. 15, § 2402, subd. (b)),
including the nature of the commitment offense; behavior before, during, and
after the crime; the inmate's social history; mental state; criminal record;
attitude toward the crime; and parole plans.
(Cal. Code Regs., tit. 15, § 2402, subd. (b).) The circumstances that tend to show
the inmate: (1) committed the offense in a particularly heinous, atrocious, or
cruel manner; (2) possesses a previous record of
violence; (3) has an unstable social history; (4) has previously sexually
assaulted another individual in a sadistic manner; (5) has a lengthy history of
severe mental problems related to the offense; and (6) has engaged in serious misconduct
while in prison. (Cal. Code Regs., tit.
15, § 2402, subd. (c).) A factor
that alone might not establish unsuitability for parole may still contribute to
a finding of unsuitability. (Cal. Code
Regs., tit. 15, § 2402, subd. (b).)
Circumstances tending to show
inmate: (1) does not possess a record of violent crime committed while a
juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4)
committed the crime as the result of significant stress in his or her life,
especially if the stress had built over a long period of time; (5) committed
the criminal offense as a result of battered woman syndrome; (6) lacks any
significant history of violent crime; (7) is of an age that reduces the probability
of recidivism; (8) has made realistic plans for release or has developed
marketable skills that can be put to use on release; and (9) has engaged in
institutional activities that indicate an enhanced ability to function within
the law on release. (Cal. Code Regs.,
tit. 15, § 2402, subd. (d).)
These
criteria are general guidelines, illustrative rather than exclusive, and "the
importance attached to [any] circumstance [or combination of circumstances in a
particular case] is left to the judgment of the [BPH]." (
679; Cal. Code Regs., tit. 15, § 2402, subds. (c), (d).) The endeavor is to try "to predict by
subjective analysis whether the inmate will be able to live in society without
committing additional antisocial acts."
(Rosenkrantz, at p. 655.)
Because parole unsuitability
factors need only be found by a preponderance of the evidence, the BPH may
consider facts other than those found true by a jury or judge beyond a
reasonable doubt. (Id. at p. 679.)
of Parole Decisions
In Rosenkrantz, the California Supreme Court
addressed the standard for a court to apply when reviewing a parole decision by
the executive branch. The court first
held that "the judicial branch is authorized to review the factual basis
of a decision of the [BPH] denying parole . . . to ensure that the
decision comports with the requirements of due process of law, but that in
conducting such a review, the court may inquire only whether some evidence in
the record before the [BPH] supports the decision to deny parole, based on the
factors specified by statute and regulation." (Rosenkrantz, supra, 29 Cal.4th at
p. 658.)
In
Lawrence, the Supreme Court noted
that its decisions in Rosenkrantz and
In re Dannenberg (2005) 34 Cal.4th 1061,
and specifically Rosenkrantz's
characterization of "some evidence" as "extremely deferential"
and requiring "[o]nly a modicum of evidence" (Rosenkrantz, supra, 29 Cal.4th at p. 667), had generated confusion
and disagreement among the lower courts "regarding the precise contours of
the 'some evidence' standard." (
1206.) Lawrence explained some courts interpreted Rosenkrantz as limiting the judiciary to reviewing whether "some
evidence" exists to support an unsuitability factor cited by the BPH or
Governor, and other courts interpreted Rosenkrantz
as requiring the judiciary to instead review whether "some evidence"
exists to support "the core determination required by the statute before
parole can be denied--that an inmate's release will unreasonably endanger
public safety." (
The
Lawrence court, recognizing the
legislative scheme contemplates "an assessment of an inmate's
p. 1205), resolved the conflict
among the lower courts by clarifying that the analysis required when reviewing
a decision relating to a prisoner's current suitability for parole 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." (
clarified that the standard for judicial review, although "unquestionably
deferential, [is] certainly . . . not toothless, and 'due
consideration' of the specified factors requires more than rote recitation of
the relevant factors with no reasoning
establishing a rational nexus between those factors and the necessary basis for
the ultimate decision--the determination of current dangerousness." (Id.
at p. 1210, italics added.) Indeed, it
is Lawrence's numerous iterations
(and variants) of the requirement of a "rational nexus" between the
and the conclusion of current
dangerousness that appears to form the crux of, and provide the teeth for, the
standards adopted in Lawrence to
clarify and illuminate "the precise contours of
the 'some evidence' standard." (
After
clarifying the applicable standard of review, Lawrence addressed how one "unsuitability" factor--whether
the prisoner's commitment offense was done in a particularly heinous,
atrocious, or cruel manner--can affect the parole suitability determination,
and whether the existence of some evidence supporting the BPH's finding that
the offense was particularly heinous, atrocious, or cruel is alone sufficient
to deny parole. Lawrence concluded that when there has been a lengthy passage of
time, the BPH may continue to rely on the nature of the commitment offense as a
basis to deny parole only when there are other
facts in the record, including the prisoner's history before and after the
offense or the prisoner's current demeanor and mental state, that provide a
rational nexus for concluding an offense of ancient vintage continues to be
predictive of current dangerousness. (
1214, 1221.)
IV
ANALYSIS OF CHALLENGE TO UNSUITABILITY FINDING
Reed
appears to assert there is no evidence of sufficient substantiality on which
the BPH could properly rest its determination that he would pose an
unreasonable risk of danger to the community if released, because there is no
logical nexus between the facts relied on by the BPH and its conclusion that he
is currently dangerous.
We conclude
there is sufficient evidence from which the BPH could have concluded Reed was
unsuitable for parole. There is no
dispute the evidence permitted the BPH to conclude the crime was especially
egregious. However, because there has been a lengthy passage of time since that
crime was committed, Lawrence teaches
that the BPH may continue to rely on the nature of the commitment offense as a
basis to deny parole only when other facts in the record, including the inmate's
history before and after the offense or the inmate's current demeanor and
mental state, provide a rational nexus for concluding those offenses continue
to be predictive of current dangerousness.
(Lawrence, supra, 44 Cal.4th
at pp. 1211, 1214, 1221.) We conclude
that, in this case, there is some evidence--including Reed's history before and
after the offense as well as his current demeanor and mental state--from which
the BPH could rationally conclude the commitment crime remains probative of
Reed's dangerousness.
A. Reed's History Before and
After the Offenses
Reed's
criminal record before the commitment offense did involve violence, and his
postincarceration conduct showed he continued to be violent and was unable to
adhere to rules despite imprisonment.
Although Reed's recent
disciplinary record in prison has improved, he received numerous disciplinary
citations while in the highly controlled setting of a prison, including
violence and manufacturing intoxicants, which undermines the credibility of his
assertions that his long history of substance abuse and violence was a distant
memory. Because Reed had shown that,
despite years of institutionalization, he could relapse into behavior patterns
that may have contributed to the crime for which he was committed, the BPH
could conclude an additional period of discipline-free behavior was required to
show that the influences and impulses leading to the crime had been eradicated
to a sufficient degree that he would not pose an unreasonable risk of relapsing
into prior behavioral patterns.
B. Reed's Current Demeanor and
Mental State
In
addition to Reed's pre- and postincarceration behavior, the BPH considered and
expressly relied on the facts and opinions contained in the psychological
evaluation. The psychologist's
observations, and particularly the psychologist's opinion that Reed's mental
state (especially his tendency to discount his
criminal history and to not understand the underlying sources of his
antisocial/criminal behavior) would be
expected to cause difficulties with Reed's ability to identify and change his
poor decision-making and to avoid relapsing into antisocial conduct, provide
some evidence under Shaputis to
support the BPH's finding that he posed an unreasonable risk to the community
if released on parole.
In
this proceeding, Reed cites snippets of the report as supportive of his claim
that he is not currently dangerous, but then ignores the context in which those
statements were made and ignores the conclusions reached by that evaluator. We believe the
psychologist's adverse report provided the requisite evidence to support
the finding of unsuitability.
C. Additional Evidence of Unsuitability
The BPH
properly relied on additional evidence to find Reed was unsuitable for
parole. He minimized or rationalized his
prison misconduct, claiming his disciplinary
citations were just "little things [that] are going to happen"
in prison, and that he manufactured alcohol because he needed the money to buy
food and personal hygiene materials, which could support the conclusion that
Reed would continue to act in antisocial ways when he believed his
self-interest justified those actions.
He eschewed significant efforts at participating in
extant parole plans, both of which factors may properly be relied on to
determine unsuitability. (See Cal. Code
Regs., tit. 15, § 2402, subds. (d)(8) &
(d)(9).)
D. Conclusion
We conclude
the BPH's unsuitability determination is supported by some evidence, and
therefore affirm its determination on the issue of Reed's current unsuitability
for parole.
V
ANALYSIS OF EX POST FACTO CHALLENGE
The BPH
concluded a 10-year deferral before Reed would again be considered for parole,
as permitted under section 3041.5, subdivision (b)(3), was appropriate. Reed argues applying the amendments to
section 3041.5, subdivision (b), which implement aspects of Marsy's Law to
permit the 10-year deferral, to him would violate ex post facto principles.
In
whether application of the amendments to section 3041.5, subdivision (b), which
implement aspects of Marsy's Law to permit longer deferrals of subsequent
suitability hearings, would violate ex post facto principles if applied to
prisoners whose crimes predated that law, and found no constitutional infirmity
existed. Because of Vicks, we reject Reed's challenge to the BPH's
2009 order insofar as it scheduled Reed's next parole hearing according to the
standards and procedures of section 3041.5, as amended pursuant to Marsy's Law.
The
relief requested in Reed's petition for a writ of habeas corpus is denied.
McDONALD, Acting P. J.
WE CONCUR:
McINTYRE, J.
AARON, J.
name="_ftn1" title="">[1] All statutory references are to the Penal Code unless
otherwise specified.
that the crime was committed "in an especially heinous, atrocious or cruel
manner" (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1)), include the
following: (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.
