P. v. Sundberg
Filed 10/12/12 P. v. Sundberg CA2/5
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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
FIVE
THE PEOPLE,
Plaintiff and Appellant,
v.
ROGER SUNDBERG,
Defendant and Respondent.
B240381
(Los Angeles
County
Super. Ct.
No. BH008183)
APPEAL from
an order of the Superior Court
of Los Angeles
County.
Patricia M. Schnegg, Judge.
Reversed.
Kamala D.
Harris, Attorney General, Jennifer A. Neill, Senior Assistant Attorney General,
Julie A. Malone and Nikhil Cooper, Deputy Attorneys General, for Plaintiff and
Appellant.
Marilee
Marshall, under appointment by the Court of Appeal, for Defendant and
Respondent.
_______________
Appellant
Terri Gonzalez, Warden of the California Men's Colony, appeals from the Los
Angeles County Superior Court's March
20, 2012 order granting life prisoner Roger Sundberg's petition for
writ of habeas corpus. The order
reverses the decision of the Board of Parole Hearings denying parole to Mr.
Sundberg.
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.
Sundberg. We agree, and reverse the
superior court's order.
Background
Sundberg
pled guilty to second degree murder
in the 1987 killing of his neighbor, Steven Summers. Mr. Sundberg had no prior criminal history.
The probation report shows that
Summers was estranged from his wife Pam.
Pam became involved with Mr. Sundberg.
Pam had a restraining order against Summers "because he was abusive
to her physically. The victim was
desperate for a place to stay so the victim's wife allowed him to stay in the
garage at her residence. . . . [T]his infuriated the defendant. On the night of the crime he became incensed
because he saw the victim moving about the garage which was located next to his
residence and back and forth into the house.
His rage built to the point where he walked over and picked up a pistol
in his home and walked out of his house to the driveway next door where he shot
the victim four times. Victim managed to
get into his house and staggered toward his bedroom with the defendant
following behind him with the pistol and occasionally striking the victim. At this point the victim's son grabbed a
plastic baseball bat and tried to intercede but was unable to do anything more
than irritate the defendant. Defendant
followed the victim into the bathroom where the victim fell into the bathtub. After some time of arguing defendant shot the
victim twice in the head in the bathtub with the victim's son looking
on." Mr. Sundberg then shot himself
in the head.
Mr.
Sundberg had an exemplary record in prison.
He was discipline free throughout his prison term, had an excellent work
history, and had participated in various self-help activities and workshops
such as Alcoholics Anonymous, Alternatives to Violence, Fathers Behind Bars,
Mediation Studies, Transforming Ourselves, Empathy, and Communications. In his most recent psychological evaluation,
Mr. Sundberg ranked in the low range for psychopathy, violent recidivism, and
general recidivism and was found to be a low overall risk for future violence.
Mr.
Sundberg's minimum parole eligibility date was in 1998. At the time of his 2010 parole consideration
hearing he had served 22 years in prison and was 53 years old. The Board at that hearing found Sundberg
unsuitable for parole and issued a three year denial of parole.
Discussion
Appellant contends that some
evidence supports the Panel's decision to deny Sundberg parole, and so the
decision of the superior court reversing the Panel must be reversed. We agree.
The trial court's findings were
based solely upon documentary evidence. Accordingly, we independently review the
record. (In re Rosenkrantz (2002) 29 Cal.4th 616, 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. Sundberg's commitment
offense was especially heinous, atrocious, or cruel. The record shows that Mr. Sundberg shot the
victim execution-style, the offense was brutal and the motive trivial. Further, the murder was committed in front of
the victim's son, and traumatized 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. (
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.)
"The regulations do not use
the term 'insight,' but they direct the Board to consider the inmate's 'past
and present attitude toward the crime' (Regs., § 2402, subd. (b)) and 'the
presence of remorse,' expressly including indications that the inmate
'understands the nature and magnitude of the offense' (Regs., § 2402, subd.
(d)(3)). These factors fit comfortably
within the descriptive category of 'insight.'" (Shaputis
II, supra, 53 Cal.4th at p. 218.)
The Board found that Sundberg had
not come to grips with his commitment offense.
They stated, "He's justifying, being evasive and minimizing his
actions." The Board added,
"And what's more important is that he doesn't have any remorse. In his statement here today, he didn't talk
about Ms. Summers and the effects his crime had upon his victim. He did not talk about that eight-year-old boy
who lost his father in gunfire and violence." The Board agreed with a previous Panel that
it was "not convinced that [Sundberg] truly understand[s] the nature and
magnitude of the offense."
The Board's finding was based in
large part on Mr. Sundberg's version of the commitment offense. At Mr. Sundberg's request, the Board relied
on Mr. Sundberg's statement in his 2010 psychological evaluation for his
version of the crime.
That statement is as follows:
"When my wife Robin was
pregnant the house was sold and we had to move.
Pam and Steve Summers lived across the driveway at our new
residence. Pam became friends with my
wife Robin. She complained of Steve
abusing her and her child. She confided
in me. I thought of Steve as an evil
person because of his abuse of his wife, which included emotional abuse and he
occasionally hit her. She said that one
time he tied her up and tortured her. I
stopped seeing Steve as an ordinary person.
I depersonalized him like they train you to do in the military. That's the basis of why I was able to kill
him. I put him in a category of an 'it'
instead of a person. Steve and I had
conflict because Pam wanted Steve to leave and he thought Pam and I were having
an affair. I made the mistake of saying
to Steve 'if you care for her you'll go and leave her alone.' That infuriated him and he constantly made
hostile remarks. Steve was forced out
when Pam obtained the restraining order.
He would come back and he was arrested a couple of times for violating
the order. Then Pam stopped calling the
police because he brought her food or speed.
The Probation Officer's Report says that she allowed him to live in the
garage. I'm not sure about that. Steve said that he would kill Pam or take the
child if she divorced him. I considered
him to be dangerous because of the threats that he was making. I felt a need to protect Pam, my wife and my
children. I wouldn't let my children
play outside. I was in an episode of
major depression with suicidal thinking at that time. I called the suicide prevention hotline
because my wife had restarted a relationship with a prior lover. I was jealous of him. I was drinking to self medicate my
depression. That night I was drinking
with Robin. I drank malt liquor and
maybe had wine earlier. Robin and I had
a big argument. She said 'I don't care
anymore.' That wiped me out emotionally
because my life revolved around her. I
became really suicidal. I had said that
'if I suicide I'm going to kill Steve first.'
That thought became pathological.
I looked out the door and saw Steve go into the garage. I went into a rage. I had a gun for protection. Steve also had a gun. I got the gun and went and opened the
door. He jumped up and came at me. I started shooting. I was shooting because of anger and
fear. I was so angry I saw red. It was rage, and all of my feelings went into
that rage. I had built up anger toward
Steve based on his threats and his treatment of Pam. I also feared him. But much of my rage was due to the hurt I
felt with Robin. I couldn't hurt her so
I displaced my anger toward Steve. I was
thinking at that time that I was protecting my wife, Pam and my family. But there is no justification for killing a
person. I fired five times outside and
Steve ran into the house. I chased him
into the bathroom. We struggled some
more and hit each other more. He fell
and it looked like he'd died. I put the
gun to my head and shot and then I blacked out.
I woke up in the hospital."
a. Evasion and minimization
There is some evidence to support
the Board's finding that appellant was being evasive and minimizing his
actions. Mr. Sundberg elected to rely on
an account of the crime which he provided in his 2010 psychological
evaluation. In that version of the
offense, Mr. Sundberg stated, "I fired five times outside and Steve ran
into the house. I chased him into the
bathroom. We struggled some more and hit
each other more. He fell and it looked
like he died." Mr. Sundberg then
shot himself. As the Board recognized at
the hearing and the psychologist who prepared Mr. Sundberg's evaluation pointed
out, "Mr. Sundberg neglected to mention that he shot the victim twice in
the head while they were in the bathroom."
He also neglected to mention that the victim's eight-year-old son was
present when the shots were fired in the bathroom. These are major omissions which can
reasonably be characterized as evasive and understood as attempts to minimize
Mr. Sundberg's conduct. Thus, the trial
court was mistaken in finding that there was no evidence to support the Board's
finding of minimization.
b. Justification
There is also some evidence to
support the Board's finding that appellant was still justifying his
actions. In his account of the
commitment offense, Mr. Sundberg discussed the flaws of the victim at some
length, stating that the victim's wife Pam complained of the victim "abusing her and her child, .
. . which included emotional abuse and he occasionally hit her. She said that one time he tied her up and
tortured her." Mr. Sundberg told
the victim that if he cared about Pam, he would leave her alone. According to Mr. Sundberg, "[t]hat
infuriated him and he constantly made hostile remarks." Mr. Sundberg stated, "I considered him
to be dangerous because of the threats that he was making. I felt a need to protect Pam, my wife and my
children." Mr. Sundberg stated,
"I was shooting because of anger and fear."
The trial court found that Mr.
Sundberg was simply explaining his state of mind at the time of the crime, and
the fact that Mr. Sundberg stated that "there is no justification for
killing a person" meant that Mr. Sundberg was no longer claiming that he
was protecting Pam or his own family.
This is a reasonable understanding of Mr. Sundberg's statements.
The Board's understanding of Mr.
Sundberg's statement was also reasonable.
During Mr. Sundberg's statement, when he mentioned many of his feelings
at the time of the crime, he also offered an explanation of those
feelings. For example, he stated that he
felt anger toward the victim, but added that "much of my rage was due to
the hurt I felt with [my wife]. I
couldn't hurt her so I displaced my anger toward [the victim]." He offered no similar explanation for his
statement about needing to protect Pam and his own family. As is clear from every account of the crime,
there was no immediate threat to their safety.
Mr. Sundberg offered no explanation of the disconnect between his
feelings and reality. Thus, it was
reasonable for the Board to understand Mr. Sundberg's statement that he felt a
need to protect Pam and his family to be a feeling that he still harbored.
A further indication that the
Board's understanding is reasonable is found in the analysis of the
psychologist who interviewed Mr. Sundberg, and had an opportunity to observe
him as he described the commitment offense.
That psychologist found that "[t]here was evidence of a degree of
failure to accept responsibility for his actions as indicated by his
description of the homicide as a response to the threats that the victim
presented toward his family."
The Board's understanding of the
statement was reasonable. "The
'some evidence' standard does not permit a reviewing court to reject the
Board's reasonable evaluation of the evidence and impose its own
judgment." (Shaputis II, supra, 53 Cal.4th at p. 199.) Accordingly, we accept the Board's
understanding of the statement.
c. Lack of remorse
There is
some evidence to support the Board's finding that Mr. Sundberg lacked genuine
remorse about the effects of the crime on the victim's wife and child. At the hearing, Mr. Sundberg stated,
"And I realize that what I did caused Pam and Jimmy Summers trauma
suffering and it caused my wife and children suffering, and a web of suffering
that spread out from [the victim's] family and my family."
The trial
court characterized this statement as one of remorse. Realization is not remorse. Remorse involves some feeling or guilt, shame
or regret and Mr. Sundberg did not vocalize any such feelings in connection
with this statement. Further, even if an
acknowledgement of trauma and suffering could be understood as an expression of
remorse, Mr. Sundberg's acknowledgement is a fairly generic one, referring
generally to "trauma" and "suffering." There is no acknowledgement of the specific
trauma or suffering that must have been caused to the victim's son by Mr.
Sundberg's decision to shoot the victim in the head in the presence of the
victim's son, after the boy had tried to defend his father with his own toy
baseball bat. This is a significant
omission.
The trial
court is correct that the psychological evaluation states that Mr. Sundberg has
expressed remorse for the victim and his family. The psychological evaluation states that
during the interview Mr. Sundberg "expressed remorse for killing [the victim]
and added the he has experienced a great deal of guilt and shame. He noted that he traumatized the victim's
wife and son." The trial court
fails to note that the evaluation also states that "Although [Mr.
Sundberg] has expressed feelings of remorse and guilt in response to the
offense, these are diminished by his tendency to justify his actions as an
attempt to protect those that he loved."
Even
assuming that the trial court is correct there is some evidence that could be
understood as expressing remorse, that evidence could also reasonably be
understood as failing to genuinely express remorse. Since the Board's understanding of the
evidence is reasonable, we accept that understanding. (Shaputis
II, supra, 53 Cal.4th at p. 199.)
3. Current dangerousness
There is some evidence to support
the Board's finding that Mr. Sundberg lacked adequate insight into the
commitment offense and did not feel genuine remorse for the victim's wife and
son. 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.)
That is the case here. A major area where Mr. Sundberg lacks insight
is his attitude toward the victim's son.
Mr. Sundberg's most recent account of the crime does not mention the
son's presence during the crime at all and indicates that he has depersonalized
the son. The victim's son is not on the
list of people Mr. Sundberg thought he needed to protect. Mr. Sundberg has not shown any understanding
of the harm done to the son by the circumstances of the murder, and has
expressed at most cursory remorse for the unspecified suffering and trauma he
caused the son.
As Mr. Sundberg has acknowledged,
it was his depersonalization of the victim which enabled him to kill the
victim. Mr. Sundberg's lack of awareness
that he has depersonalized another person is troubling and does indicate some
current dangerousness. Thus, the Board's
decision that Mr. Sundberg poses an unreasonable risk of danger to the public
is supported by some evidence.
Disposition
The trial court's order is
reversed.
ARMSTRONG,
Acting P. J.
I concur:
KRIEGLER,
J.
MOSK, J., Dissenting
I dissent.
The criterion is current
dangerousness. I do not see how parsing
Mr. Sundberg’s statements to his psychologist bears on that. Mr. Sundberg was trying to explain to the
psychologist why he did what he did. In
other words, he was trying to express his “insight” on why he committed the
crime. That explanation has nothing to
do with remorse or lack of remorse. He
was not asked about his remorse. His
“insight” should be a positive element under In re Shaputis (2008) 44 Cal.4th 1241, 1260. He did not kill the victim for no
reason. He did so because of his
perception of events then. And, he
expressed remorse. Parenthetically, “an
inmate’s refusal to agree with the prosecution’s version of the crime does not
support a finding of lack of insight.” (
269.)
I cannot see reading into his
statement some “depersonalization” of anyone.
Under some circumstances, justification for a criminal act reflects
current dangerousness. But trying to
interpret words in a psychiatric setting like interpreting ambiguities in a
contract seems misplaced. Soon,
prisoners will figure out what to say to the Parole Board without regard to
their true feelings. In short, they will
provide the most acceptable version of insight rather than their true insight.
Normally, the Parole Board should be
the one to make the determination.
Courts should rarely be involved.
But I have reservations about the analysis employed here.
Mr.
Sundberg has a perfect record in prison.
Parole is a system to encourage rehabilitation. Perhaps one who commits such a heinous crime
as committed by Mr. Sundberg should remain in prison for a lengthier period
without regard to a determination of current dangerousness, but that is not the
law. And perhaps the crime itself might
indicate current dangerousness, but the Supreme Court has said that immutable
factors will rarely result in a denial of parole. (In re
Lawrence (2008) 44 Cal.4th 1181, 1211.)
If the Board considered the crime itself to indicate current
dangerousness and that more years in prison would dissipate that dangerousness,
then it should say so.
I believe the trial court here rendered an appropriate
opinion. I would affirm the ruling.
MOSK,
J.
