In re Stevenson
Filed 1/9/13 In
re Stevenson CA6
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re JAMES L.
STEVENSON,
on Habeas Corpus.
H037850
(Santa Clara County
Super. Ct. No. 203910)
Respondent
Rick Hill, Warden at Folsom State Prison, appeals from the superior court's December 9, 2011 order granting inmate James L. Stevenson's petition for
Board of Parole Hearings (Board) to provide petitioner a new parole
consideration hearing.
name="_ftnref1" title="">[1] Petitioner James L. Stevenson is currently
serving an indeterminate life term for a 1998 conviction of
§ 209, subd. (b)).
name="_ftnref2" title="">[2]
We
reverse the court's order granting habeas relief.
I
Procedural History
On May 20, 2011,
James L. Stevenson filed a petition for writ of habeas corpus challenging the
Board's June 17, 2010 denial of parole on the grounds that (1) the Board had
found him unsuitable for parole without "some evidence" of current
dangerousness and (2) the Board had "failed to provide a nexus or reasoning
between the negative factors it found and its conclusion that petitioner is
currently dangerous." In support of
the first ground, the petition stated among other facts: "The Board
claimed my risk assessments were negative, but they placed me in the
low/moderate range for risk of violent recidivism, with any elevation beyond
low risk being caused by historical factors as explained in the 2009
report." In support of the second
ground, the petition stated among other facts: "The Board characterized petitioner's
most recent psychological reports as negative, when both assessed petitioner's
risk of further violence as low to moderate."
The following
support of the petition: a transcript of the June 17, 2010 parole consideration
hearing, Dr. Black's Comprehensive Risk Assessment prepared for the Board,
dated September 21, 2009, Dr. Lehrer's Subsequent Risk Assessment prepared for
the Board, dated May 20, 2010, and a superior court order, filed March 25,
2011, vacating a previous parole decision of the Board.
The superior
court issued an order to show cause (OSC), indicating that, in its
"experience," an inmate's low to moderate risk for violence if
released into the community "has often been based on predomina[nt]ly
static factors." The court reasoned
as follows: "Because every life term inmate will have static facts
elevating his or her assessment over the average person's, it may be the case
that 'moderate' essentially means average for the kind of risk being
considered. If so, then 'moderate' may
not be grounds to overcome the [Penal Code section] 3041 presumption that
parole shall normally be set in the average case." The court then observed: "Because none of the above observations
are evidence in this case, it will be necessary to receive declarations from
experts, and references to academic materials, in order to evaluate the true
significant of a 'Low to Moderate Risk' assessment such as Petitioner's."
Respondent filed
a return, alleging, among other facts, that "the Board relied on various
factors to deny parole, including Stevenson's past criminality, his history of
drug and alcohol abuse and sales, his past and present mental state and
attitude towards the crime, unfavorable psychological assessments,
institutional disciplinary history, his fairly limited institutional
programming, and, to some extent, his commitment offense." The return alleged that "some evidence in
the record is probative of Stevenson's current risk to the public, and
therefore, the Board's decision satisfies due process." He also averred that "the Board is
vested with authority to weigh Stevenson's psychological risk assessments in
determining his current dangerousness."
It also denied that "the Board's decision was arbitrary,
capricious, or contrary to law" and denied that the Board failed to
provide a nexus between the factors upon which it relied and its conclusion
that petitioner presents an unreasonable risk to public safety.
In support of
the return, respondent filed an abstract of judgment of the 1997 commitment
offense, the probation officer's report for sentencing on that offense, the
life prisoner evaluations for the initial parole consideration hearing and
subsequent parole consideration hearings, a rules violation report (RVR)
charging defendant with destruction of state property in 2002 and the guilty
finding, an RVR charging defendant with possession of a controlled substance in
2000 and the guilty finding, an RVR report charging defendant with improper
conduct or excessive contact with his wife during a visit in 1999 and the
guilty finding, documented custodial counseling (CDC Form 128-A), a redacted
comprehensive risk assessment for a different inmate (submitted to show the
definitions presently being used by evaluators in their reports), and two
professional articles regarding risk assessment.
Petitioner
Stevenson filed a denial (traverse) to the return on October 27, 2011. Although the return admitted that the Board
relied on various factors to deny parole, it alleged that none of the Board's
reasons constituted some evidence of his current dangerousness. It alleged that the 2009 risk evaluation
"erred by scoring him a 'moderate' risk on the LS/CMI, when he scored in
the 15th percentile, and the instrument stated that a score below the 30th
percentile reflects a low risk." It
also alleged that "the HCR-20 is not relevant to him because it is normed
on a population of involuntarily confined mental patients, to which he is dissimilar
because he has no psychiatric history or serious mental disorder." It further averred that petitioner's moderate
risk for violence based on the HCR-20 was due to the fact that half of the
items considered were historical and "not subject to reduction despite the
passage of time." The return stated
that the Board's decision was arbitrary and capricious.
In support of
the denial, he filed the declaration of Melvin Macomber, Ph.D., a psychologist,
regarding CDCR psychological evaluations.
Dr. Macomber stated that Level of Service (LS) inventories were
developed to assess recidivism potential, not risk of future violence. He explained in his declaration that a
"score of 15% of incarcerated offenders is in the low risk range"
while a score of "30% to 70%" would be moderate. Dr. Macomber indicated that the use of the
HCR-20 to determine potential for violence was inappropriate because the
"normative sample was taken from psychiatric populations" and there
were "absolutely no validation studies in the literature" for
applying that assessment to life term inmates who have spent years in custody
and are not part of that psychiatric population. In his view, petitioner's moderate risk of
violence based on the HCR-20 is "irrelevant" and
"meaningless" since he has no psychiatric history or current
psychiatric problems and impliedly does not "resemble[] the normative
population . . . ."
By
order filed on December 9, 2011, the superior court granted the petition and
directed the Board to provide petitioner Stevenson with "a new hearing,
comporting with due process, within 100 days" of its order.
The court
provided an extensive statement of decision, ultimately concluding that
"the Board did not employ the appropriate analytical framework in reaching
its decision . . . ."
It granted the petition and directed the Board to hold a new hearing
that comported with due process within 100 days of its order.
Respondent filed
a notice of appeal.
II
June 17, 2010 Parole Consideration Hearing and
Decision
1.
The
Presiding Commissioner described the commitment offense for the record. As the victim was returning to his vehicle at
almost midnight on November 22, 1997, he was approached by two men, petitioner
and a man later identified as Sanders, wearing dark clothing and ski
masks. Sanders shoved a semi-automatic
weapon into the victim's ribcage and asked if he had any money. When the victim replied in the negative,
petitioner reached into the victim's pocket and removed a wallet and a
pager. Petitioner then asked the victim
how many people were in his house and whether there was any money in the
house. Although the victim said there
was no money in the house, petitioner told the victim to take them to his
residence and the victim was pushed toward the house.
As
the group was walking down the sidewalk and approaching an intersection, a
police car was observed proceeding southbound.
Petitioner said that "the cops are coming" and turned and
began walking away from the victim in a westbound direction. Sanders followed petitioner. Petitioner pulled off his mask and the victim
saw petitioner's face. When both
perpetrators ran northbound on another street, the victim entered his residence
and notified authorities. Responding
officers apprehended petitioner and Sanders in different locations.
Petitioner
acknowledged that Sanders and he followed the victim from the Bay 101 card
club. He stated that Sanders had a nine
millimeter gun and they were both wearing masks. Petitioner admitted moving the victim against
his will but petitioner denied taking the victim to his residence. Petitioner claimed that he had seen someone
looking out a window and had told the victim to move forward because he did not
want someone seeing what was going on.
He claimed that the victim was moved no more than five feet to an area
behind bushes. Petitioner admitted when
the police car came, he pulled off his mask, the victim saw his face, and he
ran.
Petitioner then
acknowledged that he had previously been convicted in 1996 of carrying a loaded
firearm in public; he had served some time in county jail and he had been
placed on probation for 24 months. He
explained that he had been carrying a nine millimeter weapon, which he had
purchased on the street, because he was selling drugs. Petitioner indicated that he had not
successfully completed his probation and he was subsequently arrested while on
probation.
Petitioner
confirmed a brief personal history. He
graduated from a Louisiana high school in 1988 and joined the Navy. He served for four years and was honorably
discharged in 1992. At the time of
discharge, petitioner was a stationary engineer at the weapons depot in
Concord, California. His first wife, with
whom he had a son, had convinced him not to reenlist. Petitioner then went to work for the Post
Office.
Petitioner quit
his postal job while he was going through a divorce from his first wife. He had started selling drugs in Oakland,
California for extra money and he left the job because the money from dealing
drugs had gotten "better and better."
This was the beginning of his criminal lifestyle.
Petitioner's
preferred parole plan was to live with his mother in Alexandria,
Louisiana. In California, petitioner had
been accepted into a fellowship, multi-service reentry program located in
Oakland. Another alternative in
California was the Another Chance program that provided an alcohol, drug-free
living environment in Oakland.
The support
letters in petitioner's file included a letter from his mother indicating that
she had an at-home nail salon business and also sold tamales. Petitioner's mother indicated that she could
get petitioner a job in Louisiana, either onshore or offshore. There was a letter from program called A
Place to Start a New Beginning, which stated that petitioner had been accepted
as a resident into the program, and a letter from Allied Fellowship Service,
which stated that petitioner had been accepted into its reentry program. There was also a letter from petitioner's
brother in Florida who intended to provide emotional and financial
support. Lastly, there was a letter from
the aunt of petitioner's present wife, asking on behalf of petitioner's second
wife for petitioner to be paroled.
Petitioner provided the panel with a June 2010 letter from his mother
indicating that the family would pay for the cost of his housing.
The Board had
also received a letter from the Santa Clara Police Department opposing
petitioner's release on parole.
During the
review period covering December 2008 to May 2010, petitioner's custody status
at Folsom State Prison had been Medium A.
He had been assigned to the yard crew.
There had been no disciplinary issues.
As to
programming, in 2009, petitioner had completed courses in stress management,
anger management, and victim awareness.
Petitioner indicated that he had also completed a good parenting program
more than a month before the hearing but he had not yet received a
certificate. Petitioner had provided
evidence of participating in AA (Alcoholics Anonymous), dated March 30,
2010. He had an exceptional work report
from his work supervisor, dated May 18, 2010, stating that petitioner was a
good worker and the most senior yard worker.
According to
petitioner, he had completed six units at the Coastline Community College during
the previous semester. Due to limits on
enrollment, petitioner indicated that he was not currently enrolled and he was
required to wait until the following semester to enroll again. He told the panel that he had completed a
total of nine units, or three courses, and needed another six units to
graduate. The panel advised petitioner
to add his transcripts to his central file to show his completed coursework.
Petitioner
indicated that he was attending AA/NA (Narcotics Anonymous) meetings, but did
not state how often. His main hobby was
exercising. He said he was reading a lot
of self-help books, but did not name or discuss them. A deputy commissioner advised petitioner to
keep a list of the self-help books he read because otherwise no record existed
to support his claim. Petitioner
indicated that he was generally trying to stay to himself. He indicated that he was no longer
participating in a veteran's group on Saturday or attending church on Sunday
because he had visitors every weekend.
Petitioner was
asked about his poor write-ups when he participated in a vocational auto paint
program in about 2000. Petitioner
explained that he was then still using drugs, he was then still smoking weed
and drinking pruno. Petitioner completed
a vocational small engine repair class in 2003.
A deputy
commissioner noted that a psychologist
had indicated that petitioner had issues with his kidnapping conviction. Dr. Black's September 2009 report had stated
that petitioner believed his sentence was unfair because he never meant to
kidnap or harm anyone. At the hearing,
Petitioner admitted that he had been angry about being convicted of kidnapping
because he had "never meant to kidnap someone." But he now understood that, under the law, he
had kidnapped someone. He said,
"But I'm just mad at myself because I never meant to kidnap no one. You know, if I knew now what I knew then,
none of this would have happened."
Petitioner
answered affirmatively when asked whether he learned the 12-Steps. He was responsive when asked how he had
applied the fourth and tenth steps to his life.
He expressed how difficult it was to be denied parole and how a denial
makes "[y]ou feel like you want to go back to drugs or you want to go back
to drinking." Petitioner indicated
the importance of God and said that to him "the power of prayer is every
step."
Petitioner was
asked about the triggers for his anger.
He first stated that he never had anger issues but he had taken the program
just to learn more. He then said his
trigger was not having enough money and being able to afford the things he
wanted to buy for his family or son.
When asked how he recognizes his triggers for anger, petitioner said he
did not know how to answer that because he did not believe he "ever had an
anger issue." He admitted that he
may have had a lot of problems but anger was not one of his issues.
Petitioner had
not received any serious write-ups since November 2002. As to disciplinary action for destruction of
state property in 2002, defendant's explanation was that a line had been tied
to the sprinkler in the cell and his cellie had jumped out of bed and
accidently grabbed the line and triggered the sprinkler. He said that they had used the line to hang a
sheet for their use of the restroom. As
to the 2000 disciplinary action, petitioner admitted being found with black tar
heroin. He also acknowledged a
disciplinary action for excess contact with a visitor in 1999.
Documented
counseling indicated that petitioner had to be warned about smoking in 2002 and
he had "refused to strip out for a medical exam" in 2001. Petitioner could not recall a "128"
(CDC Form 128-A, Custodial Counseling Chrono) for inappropriate behavior with a
visitor on September 19, 1999.
Petitioner
represented that he had been alcohol and drug-free for almost 10 years. Petitioner indicated that he wished he could
apologize to the victim and he said that he wished he could express to him how
sorry he was.
At
the parole hearing, petitioner acknowledged that, while his present wife was
visiting him, a search of his wife's hotel room, executed pursuant to warrant,
uncovered drugs. Petitioner stated two
other females were staying in the room and asserted that his wife had never
tried to bring drugs into prison.
Petitioner
indicated that he planned to maintain his sobriety upon release by going to a
half-way house where the main focus would be ensuring that he has a good
sponsor and by being surrounded by friends and family that want him to stay
drug and alcohol free. When petitioner's
counsel asked what he would do if he has the desire to drink or smoke
marijuana, petitioner said he would probably go to a meeting and he would talk
to his sponsor.
The
two psychological reports assessing risk, the 2009 report from Dr. Black and
the 2010 report from Dr. Lehrer, were mentioned. Extensive portions of those reports were read
into the record.
Dr.
Black had described petitioner's substance abuse history beginning as a teen
and indicated drug use was a factor in the commitment offense. Petitioner's demonstrated knowledge of AA/NA
principles had been inadequate during their interview; petitioner had been able
to describe only part of the first step and none of the remaining 12 steps. Petitioner had reported that he believed he
no longer had an alcohol or drug problem and was not at any risk for
relapse. Dr. Black's report indicated
that petitioner's personal insight into his need for prolonged alcohol and
substance abuse programming and a relapse prevention plan appeared
questionable.
Although
petitioner verbalized remorse during his interview with Dr. Black, he had also
indicated that he only thinks about the victim and his life crime when he is
being interviewed or going to a Board hearing.
Otherwise, petitioner tries to forget his negative past. He indicated to Dr. Black that he did not
believe his sentence was fair because he never meant to kidnap or harm anyone.
Dr. Black had
used three instruments to assess risk of future violence: 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). Petitioner's score on the PCL-R placed him in
"the low range of the clinical constructive [sic] of psychopathy when
compared to other male offenders."
Petitioner's overall score on the HCR-20 placed in him in the moderate
range for violent recidivism.
The deputy
commissioner reading Dr. Black's report into the record acknowledged the HCR-20
was partially based upon static, historical factors but focused on the report's
recitation of the current, dynamic factors.
The report stated: "Mr.
Stevenson does appear somewhat prone to impulsivity and negative attitudes
given his history of his reported perception that his life crime sentence was
unfair. He has not been fully responsive
to the benefits of 12-Step Programming (e.g. he used marijuana in 2000 and [in]
the present interview his expressed knowledge of the 12-Step principles was
inadequate). Additionally, his insight
into this [sic] need for a relapse prevention plan seems limited." The risk management items on the HCR-20
included exposure to new stressors and destablilizers that he would likely face
if granted parole plus his incomplete parole plans.
According to Dr.
Black, the third instrument, the LS/CMI, which is used to evaluate the risk of
recidivism, put petitioner in the moderate risk category.
After weighing
all of the data from available records, the clinical interview, and the risk
assessment data, Dr. Black's overall assessment was that petitioner presented a
"low to moderate risk for violence in the free community." Dr. Black's "risk concerns"
included the nature of petitioner's life crime, his reported history of dealing
crack cocaine at a daily profit of $700 to $800, his history of alcohol and
drug abuse, his lack of a relapse plan, and his incomplete parole plans.
In
Dr. Lehrer's opinion, petitioner's 2009 assertion, that the drugs did not
belong to his wife, appeared to be a "rationalization" since
petitioner did not know whether his statement was true. In addition, petitioner did not seem to
recognize that his wife, by allowing herself to be in proximity to individuals
who engaged in procriminal activities, exhibited questionable insight and
judgment and made herself vulnerable to criminality.
Dr.
Lehrer had stated that petitioner's parole planning indicated a mix of good and
poor insight with regard to the stressors and destabilizing elements inherent
in parole of a prisoner who has been incarcerated for a long time. Dr. Lehrer described his relapse plans were
"generally well conceptualized" but identified areas needing further
clarification. These problematic areas
included "potential issues regarding his wife's vulnerability to substance
abuse and the level of involvement (if any) the inmate should have with friends
of his wife," especially "since one of his job offers is from a
friend of his wife." In Dr. Lehrer's
opinion, petitioner's prognosis for parole appeared guarded. The prognosis was "pending further
development of the inmate's ability to continue to clarify issues regarding how
he should best ascertain the degree of contact with his wife or anyone
associated with her while on parole."
Dr.
Lehrer had indicated several salient dynamic risk factors potentially
aggravating his risk to violently reoffend.
It noted his only recent self-help programming other than his AA/NA
attendance. Dr. Lehrer had concerns
about petitioner's relationship with his wife, which were "further
magnified by the inmate's pattern of perhaps too readily giving people another
chance, or rationalizing regarding situations that might not be as safe as they
need to be for his own security."
According to Dr. Lehrer: "Errors [in] judgment might potentially
place him in too easy proximity to pro-criminality. Given these factors, inmate Stevenson, being
able to demonstrate stable programming, using what he learned from AA/NA in
connection with self-help programming and developing a comprehensive approach
to understanding the potential difficulties that might occur in interactions
with his wife, or with his wife's friends, seem important to aid in lowering
these dynamic risk factors."
When given an
opportunity to make any closing statements, petitioner had little to say. Petitioner said he was ready for parole, the
CDC would never have to worry about him again, and he prayed that the panel
would give him a chance.
2. Decision
The Board
determined that petitioner was not yet suitable for parole because he posed an
unreasonable risk of danger if released from prison. The presiding commissioner stated that the
finding of unsuitability was "based on weighing the considerations
provided in the California Code of Regulation[s]." He stated that the panel had considered the
commitment offense and given it the "appropriate weight" although it
was not its "first consideration."
It was noted that "the offense was carried out in a very
dispassionate and calculated manner."
The petitioner had been "lying in wait up at the card room, the
victim was followed and again confronted when he left his vehicle." It was also significant that petitioner was
on probation for a prior weapons offense at the time of the commitment offense
and he had failed to profit from county jail time and adult probation. The panel thought that petitioner, by again
mentioning that he had no intent to kidnap, was engaging in "a certain
degree of minimization."
The panel
indicated that it had considered the two psychological reports, the September
2009 report from Dr. Black and the 2010 report from Dr. Lehrer, which were
described as unfavorable. It concluded
that those risk assessments "represent[ed] some evidence to this Panel as
to [petitioner's] current and unreasonable risk or danger to society."
The panel also
considered petitioner's misconduct while incarcerated, including the three
115's, the most recent for destruction of state property in 2002, and the six
128's, the most recent for smoking in 2002.
It also
considered petitioner's limited programming.
They credited him for his progress in 2009 but believed there was a need
for greater self-help programming. He
had not adequately demonstrated that he had learned to identify his personal
triggers of anger from the anger management course that he had taken.
On the positive
side, the panel concluded that his parole plans were sufficient. It also recognized his participation in
Coastline College, his yard crew reports, his recent participation in
self-help, his discipline-free record since 2002, his past "vocational
achievement of small engine repair," and his lack of juvenile assaultive
history.
Although
commending petitioner for his positive progress, the panel concluded that on
balance he was not yet suitable for parole because he posed a current and
unreasonable risk of danger if released and required at least an additional
three years of incarceration. Petitioner
was advised to "[t]ake to heart the comments regarding participation in
self-help." He was encouraged to
prepare a closing statement before coming to the next hearing and told to keep
his parole plans updated.
III
Discussion
A
As
a threshold matter, we first reiterate the law governing habeas corpus
proceedings because, as we will discuss below, the superior court misconceives
its authority.
1.
"To satisfy
the initial burden of pleading adequate grounds for relief, an application for
habeas corpus must be made by petition . . . ." (People
v. Duvall (1995) 9 Cal.4th 464, 474.)
"The petition should both (i) state fully and with particularity
the facts on which relief is sought [citations], as well as (ii) include copies
of reasonably available documentary evidence supporting the claim, including
pertinent portions of trial transcripts and affidavits or declarations. [Citations.]" (Ibid.)
"When
presented with a petition for a writ of habeas corpus, a court must first
determine whether the petition states a prima facie case for relief—that is,
whether it states facts that, if true, entitle the petitioner to relief—and
also whether the stated claims are for any reason procedurally barred. (In re
Clark (1993) 5 Cal.4th 750, 769, fn. 9.)" (People
v. Romero (1994) 8 Cal.4th 728, 737.)
If the court finds the factual allegations, taken as true, establish a
prima facie case for relief, the court will issue an order to show cause
(OSC). (People v. Duvall, supra,
9 Cal.4th at p. 475.) "When an
order to show cause does issue, it is limited to the claims raised in the
petition and the factual bases for those claims alleged in the petition. It directs the respondent to address only
those issues." (
fn. 16.) "Issuance of an OSC . . .
indicates the issuing court's preliminary
assessment that the petitioner would be entitled to relief if his factual
allegations are proved." (
"The
factual allegations of a return must . . . respond to the allegations of the
petition that form the basis of the petitioner's claim that the confinement is
unlawful. (Romero, supra, 8 Cal.4th
at p. 738; People v. Pacini (1981)
120 Cal.App.3d 877, 884.)" (
476, fn. omitted.) "In addition to
stating facts, the return should also, 'where appropriate, . . .
provide such documentary evidence, affidavits, or other materials as will
enable the court to determine which issues are truly disputed.' (Lewallen,
supra, 23 Cal.3d at p. 278, fn.
2.)" (Ibid.)
The
petitioner's response to the return is "commonly known as the
traverse" and "may incorporate the allegations of the petition. (In re
Lewallen, supra, 23 Cal.3d 274,
277.)" (People v. Romero, supra,
8 Cal.4th at p. 739.) The traverse
either admits or disputes the return's factual allegations. (People
v. Duvall, supra, 9 Cal.4th
not disputed in the traverse are deemed true.
(Lawler, supra, 23 Cal.3d at p. 194.)"
(Ibid.) "While the [petitioner's] traverse may
allege additional facts in support of the claim on which an order to show cause
has issued, attempts to introduce
additional claims or wholly different factual bases for those claims in a
traverse do not expand the scope of the proceeding which is limited to the
claims which the court initially determined stated a prima facie case for
relief. [Citations.]" (In re
Clark, supra, 5 Cal.4th at p.
781, fn. 16, italics added.)
"[T]he well
established rules of habeas corpus procedure provide no statutory or decisional
authority that permits the superior court to issue an order to show cause that
requires the respondent to address new claims not expressly or implicitly
raised in the original habeas corpus petition or supported by the factual
allegations in the original habeas corpus petition, unless those claims were
raised by the petitioner in a supplemental or amended habeas corpus petition
filed with the permission of the court."
(Board of Prison Terms v. Superior
Court (2005) 130 Cal.App.4th 1212, 1237, fn. omitted.) Consequently, a court exceeds its power by
issuing an OSC that adds for consideration any claim not raised by the habeas
corpus petition before the court. (
court, petitioner must obtain leave to file a supplemental petition for writ of
habeas corpus. (People v. Green, supra,
27 Cal.3d at p. 43, fn. 28 . . . .)" (Id.
at p. 1235.)
The interplay
between the respondent's return and the petitioner's traverse "frames the
issues the court must decide in order to resolve the case. [Citations.]" (In re
Serrano (1995) 10 Cal.4th 447, 455.)
"Once the issues have been joined in this way, the court must
determine whether an evidentiary hearing is needed. If the written return admits allegations in
the petition that, if true, justify the relief sought, the court may grant
relief without an evidentiary hearing.
[Citations.] Conversely,
consideration of the written return and matters of record may persuade the
court that the contentions advanced in the petition lack merit, in which event
the court may deny the petition without an evidentiary hearing. [Citations.]
Finally, if the return and traverse reveal that petitioner's entitlement
to relief hinges on the resolution of factual disputes, then the court should
order an evidentiary hearing. (Pen.Code,
§ 1484.)" (People v. Romero, supra,
8 Cal.4th at pp. 739-740.)
"The
various exhibits that may accompany the petition, return, and traverse do not
constitute evidence, but rather supplement the allegations to the extent they are
incorporated by reference. (See
1070, fn. 2 . . . .) At
the evidentiary hearing, such exhibits are subject to admission into evidence
in accordance with generally applicable rules of evidence. (See id.
at p. 1070 . . . .)"
(In re Rosenkrantz (2002) 29
Cal.4th 616, 675.) Following an
evidentiary hearing, "the court in which the return has been filed will
then either grant or deny relief based upon the law and the facts as so
determined." (People v. Romero, supra, 8
Cal.4th at p. 740.)
"When a superior court grants relief on a
petition for habeas corpus without an evidentiary hearing, . . . the
question presented on appeal is a question of law, which the appellate court
reviews de novo. (In re Zepeda (2006) 141 Cal.App.4th 1493, 1497.)" (In re
Lazor (2009) 172 Cal.App.4th 1185, 1192.)
Similarly, when a trial court makes findings "based solely upon
documentary evidence, we independently review the record. (In re
Serrano, supra, 10 Cal.4th at p.
457.)" (In re Rosenkrantz, supra, 29 Cal.4th at p. 677.)
In this case, we
"review the trial court's decision and the contentions of the parties in
light of the materials that properly were before that court." (Ibid.) "We presume that the trial court
accepted as true petitioner's undisputed factual allegations, including any
undisputed matters contained in the exhibits incorporated by reference into his
pleadings. (See In re Serrano,
at p. 676.)
2.
In this case,
the superior court's order to show cause invited the parties to submit new
evidence regarding the "true significance" of an assessment of
"low to moderate" risk for violence.
While the petition questioned the negative characterization of the
psychological assessment that petitioner posed an overall "low to
moderate" risk of violence if released into the community, it did not
dispute the assessment's validity. The
trial court exceeded its authority by framing a new issue for consideration and
indicating it would "receive declarations from experts" and
"references to academic materials."
(See Board of Prison Terms v.
Superior Court, supra, 130
Cal.App.4th at p. 1237.) Petitioner has
not cited, and we have not found, any authority allowing a court, which is
reviewing a parole decision denying parole, to grant habeas relief based upon
evidence not presented to the board.
(Cf. In re Hardy (2007) 41
Cal.4th 977, 1016 ["Habeas corpus will lie to vindicate a claim that newly
discovered evidence demonstrates a prisoner is actually innocent"];
[newly discovered evidence is not a basis for habeas relief where it merely
might have weakened the prosecution's case or presented a more difficult
question for the trier of fact].)
3.
The
habeas petition raised only two grounds for relief: (1) the lack of "some
evidence" of current dangerousness and (2) the lack of a rational nexus
between the unsuitability factors named by the Board and its determination of
current dangerousness. The petition did
not allege that the Board's decisional process was procedurally flawed. To the extent that the superior court
resolved issues not explicitly or implicitly raised by the habeas petition, the
court exceeded its authority. (See
supra, 130 Cal.App.4th at pp. 1235,
1237; In re Clark,
B.
Relief
None
of the superior court's reasons for granting habeas relief withstand scrutiny.
1.
The
panel's decision rested in part on the two psychological reports, which
assessed petitioner's risk for future violence.
The
superior court found that the panel had erred by relying upon the petitioner's
assessed "low to moderate" risk for violence in determining that he
was not yet suitable for parole. The
court stated: "The recent case of
resolved one of the central issues this case presented. The Sixth District has recently recognized
that a risk assessment of 'moderate,' which is 'elevated above low only because
of immutable historical facts,' [citation] does not independently or in and of
itself supply 'some evidence' in support of a parole denial. Just as the static facts of the crime itself
do not have independent weight without a nexus, so too a psychologist's
'moderate' finding based on static factors needs a nexus 'to remain probative
of current dangerousness.'
[Citation.]"
The
authority.
8.1115.) In any event, the transverse
did not allege sufficient facts, which if true, established that Dr. Black
elevated petitioner's overall risk for violence above "low" based
upon only immutable historical facts
or that the panel's decision turned on such a risk assessment.
2.
In
its decision denying parole, the panel made the following introductory remarks:
"[T]he Panel has reviewed . . . all relevant information that was before
us today in concluding that you are not yet suitable for parole because you
currently pose an unreasonable risk of danger if released from prison. The finding of unsuitability is based on
weighing the considerations provided in the California Code of
Regulation[s]." The superior court
concluded that the panel's remark regarding "weighing" established
that it had improperly weighed those "factors against hypothetical minimum
elements [fn. omitted]" and had improperly given the factors
"independent weight."
name="_ftnref6" title="">[6]
We
begin with the statutory presumption that "official duty has been
regularly performed" (Evid. Code, § 664), which may be rebutted and
affects the burden of proof (Evid. Code, § 660). This presumption applies to parole
suitability decisions. (See
315, 323; In re Arafiles (1992) 6
Cal.App.4th 1467, 1478.) The panel's
"weighing" statement, which was taken out of context of the entire decision,
together with the panel's other statements concerning weighing do not
affirmatively overcome this presumption since the Board, under applicable
statutes and regulations, must consider and weigh all relevant circumstances in
evaluating an inmate's suitability for parole.
The
Board is statutorily required to "establish criteria for the setting of
parole release dates . . . ." (§ 3041, subd. (a).) California Code of Regulations, title 15,
section 2281 sets forth the factors to be considered by the Board in assessing
whether a life prisoner is suitable for parole or poses "an unreasonable
risk of danger to society if released from prison."
re Lawrence (2008) 44 Cal.4th 1181, 1202-1203; see also § 3041, subd.
(b) ["The panel or the board, sitting en banc, shall set a release date
unless it determines . . . that consideration of the public safety requires a
more lengthy period of incarceration for this individual . . .".) The Board and the Governor are authorized to
"identify and weigh only the factors relevant to predicting 'whether the
inmate will be able to live in society without committing additional antisocial
acts.' (Rosenkrantz, supra, 29
Cal.4th at p. 655.)" (
1205-1206.) "[T]he precise manner
in which the specified factors relevant to parole suitability are considered
and balanced lies within the discretion of [the Board and] the
Governor." (In re Rosenkrantz, supra, 29 Cal.4th at p. 677; see
257, fn. 12 ["The Governor has the authority to weigh suitability factors
differently from the Board . . ."].) "It is irrelevant that a court might
determine that evidence in the record tending to establish suitability for
parole far outweighs evidence demonstrating unsuitability for
parole." (In re Rosenkrantz, supra, 29 Cal.4th at p. 677; see
1260-1261.)
Thus,
the panel was entitled to consider and weigh the circumstances relevant to
petitioner's parole suitability. The
record does not affirmatively establish that the panel, in reaching its
decision to deny parole, merely weighed unsuitability and suitability factors
against each other in a vacuum or failed to base its decision on the
"overarching consideration" of public safety. (See In
re Lawrence, supra, 44 Cal.4th at
p. 1209.) The superior court myopically
focused on the weighing remark, improperly speculating regarding its
significance. (See In re Shaputis (2011) 53 Cal.4th 192, 218 ("
of judicial restraint and comity between the executive and judicial branches
counsel against including mere suspicions in the court's opinion"].)
In addition, the
superior court assigned error to the panel's statement that it had given the
commitment offense "appropriate weight" on the ground that "a
court is unable to meaningfully review a vague finding of 'appropriate
weight.' " The habeas petition
did not claim that the Board's statement of decision did not allow meaningful
judicial review or meet the minimal standards of procedural due process.
"Because
the petitioner has the evidentiary burden, it is the petitioner who must select
the claims that the petitioner desires to plead and prove as the grounds for
habeas corpus relief." (
supra, 130 Cal.App.4th at p.
1236.) The superior court did not invite
petitioner to amend his habeas petition or file a supplemental petition raising
such claims. (See id. at p. 1239 [recognizing that "the superior court has the
authority to invite amended or supplemental habeas corpus petitions in the
interests of justice"].)
Consequently, the superior court exceeded the scope of its authority by
granting habeas relief based upon the panel's "appropriate weight"
remark. (See id. at pp. 1235, 1237; In re
Clark, supra, 5 Cal.4th at p.
781, fn. 16.)
Furthermore,
petitioner has not cited, and we are not aware of, any authority requiring the
Board or the Governor to describe in its decision the exact or relative weight
given any particular circumstance.
"As long as the [parole suitability] decision reflects due
consideration of the specified factors as applied to the individual prisoner in
accordance with applicable legal standards, the court's review is limited to
ascertaining whether there is some evidence in the record that supports the . .
. decision." (In re Rosenkrantz, supra,
29 Cal.4th at p. 677; see Shaputis II,
supra, 53 Cal.4th at p. 210;
1260-1261 (Shaputis
re Lawrence, supra, 44 Cal.4th at p. 1204.)
3.
Offense
As indicated, in
reaching its decision, the panel had "noted that the offense was carried
out in a very dispassionate and calculated manner" in that petitioner was
"lying in wait up at the card room, the victim was followed and again
confronted when he left his vehicle."
The panel had also "noted that the motive for this crime is very
trivial in relationship to the offense."
The superior
court faulted the panel for its characterization of the robbery, stating:
"Kidnapping for robbery always involves a motive of monitary [sic] gain so
for the instant panel to call the motive 'trivial in relation to the offense'
demonstrates such a basic misunderstanding of their duties that the entirety of
their 'findings' are suspect. Similarly,
to call the crime 'dispassionate' and 'calculated' seems to reveal that the
Board was following a script meant for murder cases instead [of] giving
Petitioner individualized consideration."
The court mentioned that the previous panel had concluded that the
offense was "not egregious and was 'not a consideration' " and
then commented that the present panel's "diametrically opposite findings
demonstrate how arbitrary and capricious the various panels can be."
In suggesting
that the Board was following "a script for murder cases" instead of
considering petitioner's individual circumstances, the superior court
improperly strayed into the area of prohibited speculation. (Cf. Shaputis
II, supra, 53 Cal.4th at p. 217.) The applicable regulation indicates that the
circumstances of the commitment crime may be relevant and the factors that
properly may be considered include whether the "offense was carried out in
a dispassionate and calculated manner" and whether the "motive for
the crime is . . . very trivial in relation to the
offense." (Regs., § 2281,
subds. (b), (c)(1)(B), (c)(1)(E).)
The commitment
offense was carried out in a dispassionate and calculated manner in the sense
that it was planned and the perpetrators waited for each victim to exit the
card room, followed the victim home, and then robbed the victim. It was neither an impulsive crime nor a crime
of passion.
The record does
not disclose what the panel meant by "trivial." Dr. Black's report, upon which the panel
relied, revealed that petitioner had disclosed that, before the crime, he had
approached two persons who he knew had been following casino patrons and then
robbing them because petitioner wanted to take part in that scheme. Petitioner had explained that he "wanted
to take part in their robbery scheme because he had recently been robbed
himself." The panel could
reasonably conclude that petitioner had a petty motive in that petitioner
wanted to rob another person because petitioner had been recently robbed and
was indifferent to his victim's suffering.
While it does not appear petitioner committed the kidnapping for robbery
"in an especially heinous, atrocious, or cruel manner" (Regs.,
§ 2281, subd. (c)(1)), the present panel never concluded that his
commitment offense was an egregious kidnapping for robbery.
Neither the
present panel's description of the commitment offense nor a comparison of the
present panel's and past panel's descriptions of that offense establish that
the Board's decision to deny parole was arbitrary. Each parole suitability hearing is a "de
novo hearing" and the Board is not bound by previous findings and
conclusions. (See § 3041.5, subd.
(c).)
As recognized by
the Supreme Court, the parole suitability decision involves subjective
analysis. (Shaputis II, supra, 53
Cal.4th at p. 219 ["[I]t has long been recognized that a parole
suitability decision is an 'attempt to predict by subjective analysis whether
the inmate will be able to live in society without committing additional antisocial
acts' "].) The role of the
courts is to "consider only whether some evidence supports the ultimate
conclusion that the inmate poses an unreasonable risk to public safety if
released. (Id. at p. 1221.)" (
The superior
court erred in granting habeas relief based on the panel's characterization of
the commitment offense.
4.
In
the decision, petitioner was told that the risk assessments of Drs. Black and
Lehrer "represent some evidence to this Panel as to your current and
unreasonable risk of danger to society."
The superior court found the panel's statement "particularly
troubling because 'some evidence' is the highly deferential standard of
review" used for judicial review and the "Board should not see its
role as being to mine the record before it for such a low threshold as 'some
evidence' to base a parole denial upon."
The
court below once again veered off into prohibited speculation. (Cf. Shaputis
II, supra, 53 Cal.4th at p. 217.)
There is nothing in the panel's decision demonstrating that the panel
was using the phrase "some evidence" as a legal term of art for the
purpose of directing any future reviewing court to the minimal evidence
required to uphold its decision. In the
absence of clear evidence to the contrary, courts must presume that the panel
was not shirking its legal responsibility to exercise its discretion. (See Evid. Code, § 664.)
5.
Explain Its Reasoning
The
Supreme Court has stated that the "some evidence" standard is
"unquestionably deferential, but certainly is 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."
(In re Lawrence, supra, 44
Cal.4th at p. 1210.) The critical issue
is "how those factors interrelate to support a conclusion of current
dangerousness to the public." (
circumstances of the commitment offense, absent articulation of a rational
nexus between those facts and current dangerousness, fails to provide the
required 'modicum of evidence' of unsuitability." (Id.
at p. 1227.)
In
granting habeas relief, the superior court stated that "in the review of
broadly discretionary decisions due process requires examination of the
reasoning given not the result achieved.
[Citations.]" It indicated
that the Board had not "formulated the reasoning, and nexus
. . . ."
A court
reviewing a parole decision determines "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.]" (In re
Lawrence, supra, 44 Cal.4th at p.
1212.) The California Supreme Court has
most recently made clear that "nothing in the requirement that a parole
denial be accompanied by a 'statement of [ ] reasons' demands that the parole
authority comprehensively marshal the evidentiary support for its reasons. (In re
Sturm (1974) 11 Cal.3d 258, 272 . . . .)" (Shaputis
II, supra, 53 Cal.4th at p. 214,
fn. 11.)
While the panel
did not lay out its every inference and all supporting evidence in support of
its decision, the panel's decision was accompanied by a statement of reasons
for finding petitioner dangerous and denying parole. (See In
re Sturm, supra, 11 Cal.3d at pp. 270, 272-273 [due process requires a
definitive written statement of the reasons for denying parole].) The record does not reflect that the Board
merely engaged in a "rote recitation" of factors.
We now turn to
the claims actually raised by the petition, which are both subsumed in the
"some evidence" standard of review.
C.
1.
Standard
The California
Supreme Court clarified the courts' role in reviewing parole suitability decisions
in its recent opinion in Shaputis II,
supra, 53 Cal.4th 192. "The essential question in deciding
whether to grant parole is whether the inmate currently poses a threat to
public safety." (
to that question "from the entire record, including the facts of the
offense, the inmate's progress during incarceration, and the insight he or she
has achieved into past behavior." (
commitment offense, but also his or her other antisocial behavior, is a proper
consideration" (
"the inmate's understanding of the crime and the reasons it occurred, or
the inmate's insight into other aspects of his or her personal history relating
to future criminality." (
decision is an 'attempt to predict by subjective analysis whether the inmate
will be able to live in society without committing additional antisocial
acts.' (Rosenkrantz, supra, 29
Cal.4th at p. 655 . . . ; see In re Sturm (1974) 11 Cal.3d 258, 266
. . . .)" (
"Judicial
review is conducted under the highly deferential 'some evidence'
standard."
title="">[8] (Shaputis
II, supra, 53 Cal.App.4th at p. 221.)
"The 'some evidence' standard is intended to guard against
arbitrary parole decisions, without encroaching on the broad authority granted
to the Board and the Governor. (
at p. 215.) "The court reviews the
entire record to determine whether a
modicum of evidence supports the parole suitability decision." (Id.
at p. 221, italics added.)
"[C]ourts consider only whether some evidence supports the ultimate
conclusion that the inmate poses an unreasonable risk to public safety if
released. [Citation.]" (Id.
at p. 219.)
The "some
evidence" standard of review does not equate to the more demanding
"substantial evidence" standard of review. (Shaputis
II, supra, at p. 214.) But similar
to a court reviewing the substantiality of the evidence, a court reviewing a
parole unsuitability determination by the Board or the Governor "must
consider the whole record in the light most favorable to the determination
before it, to determine whether it discloses some evidence—a modicum of
evidence—supporting the determination that the inmate would pose a danger to
the public if released on parole. (Cf.
318–320, 99 S.Ct. 2781, 61 L.Ed.2d 560; People
v. Johnson (1980) 26 Cal.3d 557, 578 . . . .)" (Ibid.) "The court is not empowered to reweigh
the evidence." (
determine that evidence in the record tending to establish suitability for
parole far outweighs evidence demonstrating unsuitability for
parole." (In re Rosenkrantz, supra, 29 Cal.4th at p. 677.)
"Any
relevant evidence that supports the parole authority's determination is
sufficient to satisfy the 'some evidence' standard. (See Jackson,
supra, at p. 320, 99 S.Ct.
2781.)" (Shaputis II, supra, 53
Cal.4th at p. 221, fn. omitted.)
Moreover, a court's deferential "some evidence" review is not
limited to the evidence mentioned by the Board or the Governor. (Id.
at p. 214, fn. 11.) "Only when the
evidence reflecting the inmate's present risk to public safety leads to but
contrary decision by the Board or the Governor.
In that circumstance the denial of parole is arbitrary and capricious,
and amounts to a denial of due process. [Citation.]" (Id.
at p. 211, italics added.)
In
his concurring opinion in Shaputis II,
Justice Liu cited the Sixth District's opinion of In re Ryner (2011) 196 Cal.App.4th 533, which predated
insight as a factor in parole suitability decisions. (See Shaputis
II, supra, 53 Cal.4th at pp.
227-228, 229.) The majority of the
Supreme Court did not embrace Ryner's
reasoning or the limitation suggested.
II stated that the Supreme Court had
"expressly recognized that 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.
[Citations.]" (
into not just the commitment offense, but also his or her other antisocial
behavior, is a proper consideration."
(Id. at p. 219.) The court also recognized that an
"inmate's insight into other aspects of his or her personal history
relating to future criminality" could be relevant to a parole suitability
decision. (Id. at p. 220.)
In
a footnote in Shaputis II, the
majority made plain that it did not agree with Justice Liu: "Our
concurring colleague suggests that 'some evidence' review is restricted to
evidence actually relied upon by the Board or the Governor. (Conc. opn. of Liu,
J., post . . . .) However, nothing in the requirement that a
parole denial be accompanied by a 'statement of [ ] reasons' demands that
the parole authority comprehensively marshal the evidentiary support for its
reasons. [Citation.] It is axiomatic that appellate review for
sufficiency of the evidence extends to the entire record, and is not limited to
facts mentioned in a trial court's statement of decision, for instance. [Citations.]" (Id.
at pp. 214-215, fn. 11.)
At
the end of Shaputis
governing review of parole decisions. (
question in deciding whether to grant parole is whether the inmate currently
poses a threat to public safety" and that "question is posed first to
the Board and then to the Governor, who draw their answers from the entire
record, including the facts of the offense, the inmate's progress during
incarceration, and the insight he or she has achieved into past behavior." (Id.
at pp. 220-221.) The court reiterated: "Judicial review is conducted under the
highly deferential 'some evidence' standard.
The executive decision of the Board or the Governor is upheld unless it
is arbitrary or procedurally flawed. The
court reviews the entire record to determine whether a modicum of evidence
supports the parole suitability decision."
(Id. at p. 221.) It stressed: "The reviewing court does
not ask whether the inmate is currently dangerous. That question is reserved for the executive
branch. Rather, the court considers
whether there is a rational nexus between the
evidence and the ultimate determination of current dangerousness. The court is not empowered to reweigh the
evidence." (Id. at p. 221, italics added.)
We
accept the majority's decision and our review in this case is governed by the
court's opinion in Shaputis
(See Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455 ["Courts exercising inferior
jurisdiction must accept the law declared by courts of superior
jurisdiction"].)
2.
Standard of Review
We
are aware that both Dr. Lehrer's 2010 psychological report and the panel's
decision commended petitioner for his progress toward parole suitability. We also applaud his efforts toward
rehabilitation. We make the
unremarkable, commonsense observation that as an inmate works toward the goal
of parole release, suitability for parole may become a closer and closer
question for the Board or Governor. A
court reviewing a parole decision must keep firmly in mind the legal
constraints of judicial review and not substitute its judgment for a parole
authority's judgment with which it might disagree.
In
Shaputis II, the Supreme Court stressed the differing roles of a parole
authority and the courts: "It bears emphasis that while 'subjective
analysis' is an inherent aspect of the parole suitability determination, it
plays a proper role only in the parole
authority's determination.
[Citation.] The courts' function
is one of objective review, limited to ensuring that the Board's or Governor's
analysis of the public safety risk entailed in a grant of parole is based on a
modicum of evidence, not mere guesswork.
[Citation.] It is the parole
authority's duty to conduct an individualized inquiry into the inmate's suitability
for parole. [Citation.] The courts consider only whether some
evidence supports the ultimate conclusion that the inmate poses an unreasonable
risk to public safety if released.
[Citation.]" (
p. 219, fn. omitted.)
Here, the panel
concluded that petitioner was still engaging in some degree of minimization of
the commitment offense. While petitioner
may not have intended to commit a kidnapping in the layman's sense and he now understands
that he nevertheless committed kidnapping under the law, his comments still may
be regarded as downplaying and not fully confronting the gravity of the
criminal misconduct that he intended and carried out. "Past criminal conduct and current
attitudes toward that conduct may both be significant predictors of an inmate's
future behavior should parole be granted.
(Lawrence,
. . . ; Shaputis I,
| Description | Respondent Rick Hill, Warden at Folsom State Prison, appeals from the superior court's December 9, 2011 order granting inmate James L. Stevenson's petition for writ of habeas corpus and compelling the Board of Parole Hearings (Board) to provide petitioner a new parole consideration hearing.[1] Petitioner James L. Stevenson is currently serving an indeterminate life term for a 1998 conviction of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)).[2] We reverse the court's order granting habeas relief. |
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