Opinion
NOT TO BE PUBLISHED
PETITION for a writ of habeas corpus following order of the Superior Court of Los Angeles County No. A912996, Steven R. Van Sicklen, Judge.
Jimmie Dean Williams, in pro. per., and Nancy L. Tetreault, under appointment by the Court of Appeal, for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Heather Bushman and Gregory J. Marcot, Deputy Attorneys General, for Respondent.
VOGEL, J.
Jimmie Dean Williams was convicted in 1986 of two counts of armed kidnapping for robbery and two counts of robbery, and was sentenced to state prison for an indeterminate life term plus two years with a minimum parole date of May 15, 1996. In 2006, the Board of Parole Hearings found for the seventh time that Williams is unsuitable for parole, and the matter is before us on his petition for a writ of habeas corpus. We agree with Williams that the Board’s decision is not supported by “some evidence” and, for this reason, grant the petition and order his immediate release.
We recognize that, indirectly, this issue is pending before the Supreme Court in In re Rozzo (2008) 159 Cal.App.4th 1089, review granted May 14, 2008, S161469, In re Montgomery (2007) 156 Cal.App.4th 930, review granted February 20, 2008, S159141, In re Dannenberg (2007) 156 Cal.App.4th 1387, review granted February 13, 2008, S158880, In re Jacobson (2007) 154 Cal.App.4th 849, review granted December 12, 2007, S156416, In re Shaputis (Aug. 21, 2007, D049895) [nonpub. opn.], review granted October 24, 2007, S155872, In re Cooper (2007) 153 Cal.App.4th 1043, review granted October 24, 2007, S155130, and In re Lawrence (2007) 150 Cal.App.4th 1511, review granted September 19, 2007, S154018, all cases in which the Board has granted parole and the Governor has vacated the Board’s decision.
FACTS
A. The Commitment Offense
In September 1985, Fidel Hernandez had just stepped out of his truck in Kings County when Williams (armed with a shotgun) and an accomplice appeared, ordered Hernandez back into the truck, forced him to drive about a mile to a secluded area, directed him out of the truck, blindfolded and gagged him, and told him he would be shot if he moved. Williams and his cohort took about $330,000 worth of computer equipment from Hernandez’s truck, locked Hernandez in the trailer, and fled. Hernandez freed himself.
In October, Mark Rowe and Leroy Emmons were about to unload Emmons’s truck in Los Angeles when Williams appeared with a revolver, directed the victims into the truck’s trailer, drove them around for about 45 minutes, stopped the truck, directed the victims out of the truck and into the trunk of a waiting car, drove them around for another half hour, then took them from the car, tied them to a tree, and drove off. A passing motorist freed the unharmed victims.
Williams was eventually arrested and charged in both counties. In the Los Angeles case, Williams was convicted of two counts of kidnapping for robbery with a firearm enhancement and two counts of robbery (Pen. Code, §§ 209, subd. (b), 211, 12022.5), and in 1986 was sentenced to state prison for an indeterminate life term plus two years, with a minimum parole eligibility date of May 15, 1996. He thereafter pled guilty to one count of robbery in the Kings County case, for which he was sentenced to a consecutive term of four years. The Los Angeles case is the commitment offense.
Undesignated section references are to the Penal Code. According to the sentencing minute order: “Whereas [Williams has] plead [sic] guilty in this court of the crime of kidnap[p]ing for robbery . . ., a felony as charged in Counts 1 and 2 . . . and having admitted the allegations pursuant to [section] 12022.5 . . . in Counts 1 and 2 to be true and the Jury having duly found [Williams] to be Guilty of robbery . . ., as charged in Counts 3 and 4 . . ., and the Jury having found the allegations pursuant to [section] 12022.5 . . . in Counts 3 and 4 to be true[, it] is therefore ordered, adjudged and decreed that [Williams] be punished by imprisonment in the state prison for Life with [the] possibility of Parole as to Counts 1 and 2 plus 2 years pursuant to [section] 12022.5 [for] Counts 1 and 2. [Williams is] sentenced to Mid term of 3 years [for] Counts 3 and 4 plus 2 years pursuant to [section] 12022.5 [for] Counts 3 and 4. Counts are to run concurrently with each other.”
B. The Parole Hearing
1.
Williams told the Board that, at the time of the commitment offense, “his business was going bad. He was buying a house and then drugs . . . and he needed the money. He . . . was paid $2,500 [for the hijacking] and was supposed to get $20,000 later. He . . . had . . . considered other alternatives, but came up with this and decided to do it because it sounded like a good idea. He acknowledge[d] that he did not tell [the] police about [his] arrangement with the person [who hired] him.” At that time, Williams, a mechanic, was working under contract with two limousine companies but was addicted to methamphetamines and as a result did not show up for work when he was called.
Williams has no juvenile record but (in addition to the September and October 1985 offenses) has an adult record comprised of a June 1979 California conviction for tampering with a vehicle (for which he was placed on probation), a March 1980 Nevada conviction for using a forged credit card (for which he was placed on probation), a February 1981 arrest for vehicle theft (which apparently did not result in a conviction), and a November 1985 arrest for an attempt to break into an automobile (which led to a search warrant and, ultimately, his conviction of the commitment offense). He started using amphetamines at age 16 (to stay awake for night school which he attended while working during the day) and was addicted to methamphetamines at the time of all these offenses. He dropped out of school in the tenth grade.
Williams was born on September 5, 1957, and was 49 years old at the time of his 2006 parole hearing. He is one of six children. His parents divorced when he was seven years old (his father and stepmother are still alive but his mother and her second husband are deceased). Williams (who has never been married and has no children) has remained in touch with an older brother and a sister who is married to a police officer.
2.
A complete mental health evaluation was prepared in April 2003, at which time Michael F. Cohen, Ph.D., reported that Williams had earned his GED while incarcerated and had taken college classes “until the Pell Grants were eliminated. He was studying computers and business and was on the Dean’s List and the President’s Honor Roll. Within the prison setting he has completed vocational programs in auto mechanics and upholstery where he still works as a teacher’s aide. He finished the apprentice course in upholstery. He reported that he could make more money typing but that he enjoys the upholstery program and helping the teacher.”
Dr. Cohen described Williams’s addiction to drugs and alcohol, adding: “Since his incarceration he has attended Narcotics Anonymous meetings with some regularity. Although he has been drug free in a controlled setting his history of methamphetamine abuse will need to be addressed on an ongoing basis.”
With regard to his plans if released, Dr. Cohen reported that Williams was in contact with several employment agencies “including Maxim that specializes in helping parolees find good jobs. In addition, his uncle asked for his resume and will also look for a job for him. [He] has a variety of skills and experience that will aid him considerably in gaining employment.” Williams told Dr. Cohen that he had contacted eleven drug rehabilitation programs but received a response from only one, an outpatient program, and that Williams wanted to enter a treatment program because he believed it would be part of any parole order. According to Dr. Cohen, Williams’s “post-parole plans are well thought out. He has arranged for housing and is in the process of securing employment. [He] is also acknowledging his need for post-release drug treatment. Therefore, the inmate’s plans are seen as both realistic and viable and lead to the expectation that he would have a successful experience if he were granted parole.”
Williams told the Board that his sister, who lives in San Bernardino, has invited him to live with her when he is released, and that one employment option there would be with Dollar Rent-a-Car, which hires ex-cons. In response, one of the Commissioners told Williams he needed something in writing from this organization. Williams explained that he had saved some money (he stated the amount but the transcript, as is too often the case, simply says “inaudible”), which a Commissioner described as “a good little nest egg,” sufficient to cover the first and last month’s rent for an apartment.
Dr. Cohen described Williams as neatly dressed and groomed, and said his demeanor and behavior were appropriate at all times. He was cooperative and responsive, and “quite candid” in describing the commitment offense. According to Dr. Cohen, it “is clear that the pressure of drug addiction led [Williams] to his criminal actions. There is no indication of any psychopathology that is contributive to his actions aside from his chemical dependence,” and Williams was “very clear about his remorse over his actions.”
Williams has had only one CDC-115 since his incarceration, in the year he was incarcerated (1986) for fighting in the reception center, and only two CDC-128 write-ups, one for having an illegal electrical appliance in his cell (an extension cord), the other for having inmate-made alcohol, the most recent of the two 19 years ago (1989). He has not received any disciplinary notices since then and is “seen, therefore, as presenting less potential for violence in a controlled setting than the average [life] prisoner. [¶] . . . Given [Williams’s] lack of a violent history in the community, his potential for violence after his release is seen as about the same as the average citizen in the community. [¶] [Williams] has a serious and significant history of methamphetamine abuse. Clearly the major threat to his ability to remain violence-free in the community would be if he were to return to his previous pattern of drug abuse.”
A “CDC 115” documents serious misconduct; a “CDC 128-A” documents minor misconduct. (Cal. Code Regs., tit. 15, § 3312, subds. (a)(2), (a)(3); In re Gray (2007) 151 Cal.App.4th 379, 389.)
Dr. Cohen’s concluding observations and recommendations include the following: Williams “is competent and clearly responsible for his behavior. He has shown that he has the ability to conform his behavior to institutional standards and rules.” From Williams’s history, “it is clear that [he] has had a significant drug problem. It is thus recommended as conditions of parole: [¶] 1. Abstinence from all illegal drugs and alcohol. [¶] 2. Random monitoring. [¶] 3. Mandatory attendance at Narcotics Anonymous [or] other self-help groups. [¶] From the assessment interview and the review of the records this inmate is seen as a good candidate for parole.”
A supplemental report was prepared in April 2004 by Jeff Howlin, Ed.D., who reported that Williams had changed jobs and was working as a dental clerk, about which Williams said, “‘I love it.’” Dr. Howlin confirmed Dr. Cohen’s conclusions, agreeing that Williams remained a “suitable and low-risk candidate for release,” the only risk factor being a return to the use of drugs.
3.
Williams has been a fully involved member of the Narcotics Anonymous program throughout the period of his incarceration, and has frequently been commended for his participation and “enthusiastic participation and support.” His sponsor reported that he has “achieved tremendous personal success in his efforts toward recovery and self-improvement,” and that he has completed all of the program’s requirements.
Williams successfully completed a 14-week IMPACT workshop, a program “for education and awareness as to the profound negative impact of crime on its victims,” a 10-week Lifeskills Program designed “to encourage better impulse control, self-understanding and more effective living,” an “Alternatives to Violence Project” workshop (a basic course in nonviolent conflict resolution), two “vocational upholstery” programs through Valley Adult School (one for automotive and marine upholstery, the other for furniture upholstery), a “vocational auto mechanics” program sponsored by Visions Adult School, and (until they were cancelled for lack of funding) various programs offered by Hartnell College for which he made the Dean’s List and President’s Honor Roll. He received numerous commendations for his work as an upholsterer with comments such as “demonstrated an excellent attitude and work habits,” takes “pride in the work the shop turn[s] out,” “work[s] well with peers,” “shows exceptional interpersonal skills and continues to perform at an above average level.”
Before the Board announced its decision, it suggested to Williams that, notwithstanding the fact that there were no programs available at the prison, he ought to be doing more in the way of “self-help,” such as reading books or “watch[ing] a show” and writing about it (a “couple of pages” to “beef up [his] folder”), and using his own money to buy books because the prison’s library was inadequate. In this context, it is noteworthy that this has been a constant refrain at all of Willliams’s parole hearings. In 1994, he was told that he had “a lot of programming to do.” In 1996, he was told he was “doing everything that we’re asking you to do.” In 1998, he was told to participate in one-on-one counseling, which he requested to no avail -- his request for services was denied with a note that: “I’m sorry, we can no longer offer individual therapy.” In 1999, the Board found that Williams had not “sufficiently participated in self-help and therapy programming.” In 2001, the Board told him to “upgrade through self-help and therapy programming.” In 2003, the Board told him he was “on the right track” but recommended that he “continue with whatever [was] available in terms of self-help programming to better understand the causative factors.” Uncontroverted evidence in the record establishes that he has done everything he could do.
4.
The Board denied parole for the following reasons:
“[T]he Panel has . . . conclud[ed] the prisoner is not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The Panel finds that the commitment offense was carried out in a very cruel and callous manner. Multiple victims were attacked, and maybe not physically injured, but most likely, definitely mentally injured. And . . . in separate incidences [sic], it was carried out in a dispassionate and calculated manner. [At this point, the Panel recited the facts of the commitment offense and the earlier similar offense, both of which are described above.] [¶] . . . [¶]
“Regarding the inmate’s previous record, [his history] of criminal conduct that he had failed previous grants of probation; failed to profit from society’s previous attempts to correct his criminality . . . . [¶] . . . [¶]
“Regarding the inmate’s institutional behavior, we find that (inaudible) at least would be that there was only one 24-hour program in the last three years. The type of that is not sufficient to have participated in self-help or therapy program, at least not since 2003. And misconduct while incarcerated just include the two 128(a) chronos, the last one being in ’89 for (inaudible) wires, and he only had one 115 that dates back to December ’86 for fighting.
“Regarding the inmate’s parole plans, it was unclear to note that he had a residential plan to parole to I believe it was (inaudible) and did not have a chance to include them (inaudible) we were provided with some documentation to show an ultimate residence at this point. But we had a long discussion about what needs to be pulled together, and that the amount of information given and ultimate plans, including the employment -- we recognize that this inmate has a lot of vocational (inaudible) and training ability to . . . get a (inaudible) employment out there. And, again, the Panel doesn’t expect you to get a job offer. If you have it, that’s great, but at least focus on, on using the skills that you’ve been able to acquire over the years for employment on the outside.
“The Panel makes the following findings that the inmate could, should, should pick back up and do more documented self-help, as well as we discussed, it doesn’t have to be that group therapy sessions; however, you can find what works for you in terms of writing out different things to show that, that you truly do (inaudible) on recognizing the problems of the past with the (inaudible) and how you will maintain, stay away from that in the future.”
After Williams interjected that he had been clean for more than 20 years, the Panel acknowledged that fact but said “[it] is different being incarceration [sic] as opposed to on the outside and . . . being challenged (inaudible). It’s so easy. Just, what’s going to be best for you -- “it . . . helps any Panel and the Review Panel to see that you are doing whatever you can to make sure that you don’t fall back on that again.
“However, the prisoner should be commended -- sir, . . . you’ve accumulated (inaudible) the Upholstery Repair, Auto Mechanics, and you also have certificates for vocational Appliance Repair and (inaudible). He’s also had exceptional ratings as a Dental Lab Technician. However, these positive aspects do not outweigh the factors of unsuitability. Sir, we’re giving you 12 months to be able to firm up those parole plans. You want to also firm up some of the . . . self-help. The Panel recommends that you remain disciplinary-free -- you’ve done very, very well with that -- and, if available, that you participate in NA and all sorts of self-help. . . .”
C. The Habeas Corpus Proceedings
In April 2007, Williams filed a pro se habeas corpus petition challenging the Board’s decision. The trial court denied the petition, finding the circumstances of the commitment offense constituted some evidence in support of the Board’s decision. Williams then filed a pro se habeas petition in our court, and we issued an order to show cause, appointed counsel to represent Williams, and set the matter for hearing.
DISCUSSION
Williams contends there is no evidence that he poses a risk to society and that the Board’s decision cannot stand. We agree.
A.
Although a prisoner has no constitutional or inherent right to be released on parole before the end of his sentence (Greenholtz v. Nebraska Penal Inmates (1979) 442 U.S. 1, 7), section 3041 creates in every inmate a cognizable liberty interest in parole, and that interest is protected by the procedural safeguards of the due process clause (In re Rosenkrantz (2002) 29 Cal.4th 616, 655; Irons v. Carey (9th Cir. 2007) 479 F.3d 658, 662; Sass v. California Bd. of Prison Terms (9th Cir. 2006) 461 F.3d 1123, 1128; Biggs v. Terhune (9th Cir. 2003) 334 F.3d 910, 914-915; McQuillion v. Duncan (9th Cir. 2002) 306 F.3d 895, 903). Due process is satisfied if the Board’s assessment of the prisoner’s current risk of danger to the public if released on parole is supported by “some evidence” in the record (In re Dannenberg (2005) 34 Cal.4th 1061, 1095), and that evidence must be both reliable and of solid value (In re Rosenkrantz, supra, 29 Cal.4th at p. 655; In re Scott (2005) 133 Cal.App.4th 573, 591).
Subdivision (b) of section 3041 establishes a presumption that parole is the rule, not the exception, providing that the Board “shall set a release date unless it determines that the gravity of the [commitment offense] is such that consideration of the public safety requires a more lengthy period of incarceration for this individual . . . .” (See Board of Pardons v. Allen (1987) 482 U.S. 369, 377-378.)
B.
Section 2281 of title 15 of the California Code of Regulations is a nonexclusive list of circumstances tending to show whether a prisoner is suitable for parole. Factors tending to show suitability include the absence of a juvenile record, a stable social history, signs of remorse, the motivation for the crime was significant life stress, battered woman syndrome, no significant history of violent crime, age, realistic plans for the future, and institutional behavior. (§ 2281, subd. (d).) Factors tending to show unsuitability include the commitment offense was committed in an especially heinous, atrocious or cruel manner, a previous record of violence, an unstable social history, sadistic sexual offenses, psychological factors, and serious misconduct while incarcerated. (§ 2281, subd. (c).)
All references to section 2281 are to that section of title 15 of the California Code of Regulations.
The circumstances of the commitment offense may alone constitute a sufficient basis for denying parole only when those circumstances reasonably suggest “the prisoner who committed it is presently too dangerous” to be released on parole. (In re Dannenberg, supra, 34 Cal.4th at p. 1080.) Put another way, some evidence must create a nexus between the circumstances of the commitment offense and the Board’s finding that the prisoner currently would pose a risk of danger to society if released on parole (In re DeLuna (2005) 126 Cal.App.4th 585), and a 20-year-old commitment offense may not be a reliable predictor of current dangerousness where, as here, the prisoner has been violence-free for the entire period of his incarceration (Biggs v. Terhune, supra, 334 F.3d at pp. 916-917; Irons v. Carey, supra, 479 F.3d at p. 665; Rosenkrantz v. Marshall (C.D. Cal. 2006) 444 F.Supp.2d 1063, 1084-1085; In re Lee (2006) 143 Cal.App.4th 1400, 1412; In re Elkins (2006) 144 Cal.App.4th 475, 496).
C.
The Board’s decision in this case is not supported by any evidence that, if released on parole, Williams would pose a danger to the public.
Was he dangerous at the time of the 1985 commitment offense? Of course. Has he done anything since then to support an inference that he would be dangerous if released on parole at this time? Absolutely not. He has been a model prisoner whose only misstep occurred the year he entered the state prison system, indeed while he was still in the reception center. In the 20 years between that fight and his 2006 parole hearing, there were two minor violations about 19 years ago. That’s it. He has been drug-free for 20 years. He is an active participant in NA and plans to remain involved when released. All the reports say “his potential for violence after his release is . . . about the same as the average citizen in the community.” He has a place to live and at least three marketable trades (with glowing reports about his work while incarcerated). (In re Dannenberg, supra, 34 Cal.4th at p. 1080 [the commitment offense is relevant only when something about it shows that the prisoner who committed it is “presently too dangerous” to be released on parole]; In re Scott, supra, 133 Cal.App.4th at p. 601; In re Ramirez (2001) 94 Cal.App.4th 549, 569-570.)
The Board’s findings about the commitment offense -- that it “was carried out in a very cruel and callous manner,” that “[m]ultiple victims were attacked, and maybe not physically injured, but most likely, definitely mentally injured,” and that “in separate incidences [sic], it was carried out in a dispassionate and calculated manner” -- are incorrect. The commitment offense was the October 1985 kidnapping and robbery, not a combination of the September and October crimes. There were two victims of the October crimes, but there is nothing in the record to suggest either of them suffered any “mental injury” (which is substantively different from a finding that the victims were probably frightened, a fact Williams readily admits). And while kidnapping for robbery is an extremely serious crime, there is nothing about this one to suggest it was carried out in a cruel or callous manner, or that it was otherwise more egregious than any other similar offense. (In re Elkins, supra, 144 Cal.App.4th at p. 496 [the facts of the commitment offense are immutable and continued reliance on that factor in the face of numerous positive factors does not comport with the rehabilitative goals of our prison system when the circumstances of the commitment offense do not reliably indicate that the offender will currently present a public safety risk if released on parole]; In re Scott, supra, 133 Cal.App.4th at p. 598 [the commitment offense can negate suitability only if the circumstances of the crime reliably show the offender will present an unreasonable public safety risk if released from prison].)
Although Williams’s motive for the crime (to get money to pay his mortgage and fund his drug addiction) was trivial, it was not inexplicable, and there was no exceptionally callous disregard for human suffering. (§ 2281, subd. (c)(1)(A)-(E).)
The Board’s findings about Williams’s previous criminal record -- that he failed previous grants of probation and failed to profit from society’s previous attempts to correct his criminality -- ignores the fact that his prior offenses were all property crimes that did not involve violence, and ignores the fact that the priors as well as the commitment offense were the product of Williams’s drug addiction.
The Board’s findings about Williams’s institutional behavior -- that he was involved in “only one 24-hour program in the last three years,” that his participation in self-help or therapy programs since 2003 was insufficient -- ignores the undisputed fact that Williams has during his 20 years of incarceration participated in every available self-help program, that there are no more programs, that there is no counseling, and that he has done everything he could possibly do in this regard.
This finding -- that “the inmate could, should, should pick back up and do more documented self-help, as well as we discussed, it doesn’t have to be that group therapy sessions; however, you can find what works for you in terms of writing out different things to show that, that you truly do (inaudible) on recognizing the problems of the past with the (inaudible) and how you will maintain, stay away from that in the future” -- is unsupported by any evidence suggesting there is anything more that Williams could do.
The Board’s findings about Williams’s parole plans are not supported by any evidence. His plans are clear -- to live in San Bernardino with his sister (who is married to a police officer). He has marketable skills (at least three trades) and glowing references about his in-prison work. He has been in contact with agencies that assist parolees in finding jobs. As the Panel conceded, it cannot condition release on an actual job offer (“again, the Panel doesn’t expect you to get a job offer”).
To the extent the Panel based its decision on the fact that Williams’s drug-free life in prison is irrelevant -- it “is different being incarceration [sic] as opposed to on the outside and . . . being challenged (inaudible). It’s so easy. Just, what’s going to be best for you -- it . . . helps any Panel and the Review Panel to see that you are doing whatever you can to make sure that you don’t fall back on that again” -- ignores the fact that, until he is released, there is no way for Williams to establish his ability to remain drug-free while not incarcerated. He has been an involved member of NA for 20 years and his intent to stay involved when released is undisputed. (In re Elkins, supra, 144 Cal.App.4th at pp. 498-499 [speculative concerns about an inmate’s potential risk of danger are insufficient to meet the some evidence standard].)
Simply put, the decision is not supported by some evidence. (In re Barker, (2007) 151 Cal.App.4th 346, 366 [some evidence of the existence of a particular factor does not necessarily equate to some evidence that the prisoner’s release would unreasonably endanger public safety].)
Our conclusion that the Board’s decision is unsupported by “some evidence” makes it unnecessary to consider Williams’s alternative argument that his due process rights have been violated because he has served more time for kidnapping than is required for murder.
D.
As noted at the outset, this petition challenges the Board’s 2006 decision denying parole. On March 27, 2008, while this petition was pending, the Board found Williams suitable for parole, and that he must serve 223 months (18 years, 7 months) before he may be released. Williams, who began serving his life sentence on May 15, 1989, has now served more than 19 years, 2 months in state prison.
The Board’s March 27, 2008 decision was approved by the Board’s Decision Review Unit and has been reviewed by the Governor as permitted by Penal Code section 3041.1. The Governor, in turn, has invoked his authority to request en banc review of the Board’s decision. On September 16, 2008, the Board will review the March 27, 2008 decision and either affirm the parole grant or schedule a parole rescission hearing. Based on our decision that parole should have been granted in 2006 and the fact that Williams has already served more time than the term calculated by the Board in 2008, there is no need to remand this case to the Board for further proceedings. (Cf. In re Rosenkrantz, supra, 29 Cal.4th at p. 658.)
DISPOSITION
The petition is granted and the cause is remanded to the Board of Prison Terms with directions to immediately release Williams on parole.
We concur: MALLANO, P.J., ROTHSCHILD, J.