Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. HCN940 Runston G. Maino, Judge.
HUFFMAN, Acting P. J.
The warden of California State Prison, Solano, appeals the trial court's decision to grant inmate James Alexander's petition for writ of habeas corpus, thereby vacating the Governor's decision to reverse the finding of the Board of Parole Hearings that Alexander no longer poses a current risk to public safety.
We find some evidence exists that supports the Governor's decision. Specifically, that evidence consists of: (1) circumstances surrounding the commitment offense which suggest Alexander may have wanted to kill other people; (2) Alexander's attitude about the circumstances of the crime; and (3) Alexander's habitual pattern of minimizing his responsibilities, not only in connection with this crime, but with multiple rules violations in prison as well. Accordingly, we reverse the trial court's ruling.
FACTS AND PROCEDURAL HISTORY
A. The Commitment Offense
In January 1983, Reginald Hughes (Hughes), Alexander's brother-in-law, gave Luis Sanchez (Sanchez), Hughes's drug dealer, his stereo equipment as collateral for a drug debt. On March 15, 1983, Alexander, a 20-year-old Marine, agreed to help Hughes forcibly retrieve Hughes's stereo equipment from Sanchez's possession. Alexander drove Hughes and three other Marine friends to Sanchez's apartment, expecting to find Sanchez, Sanchez's girlfriend, and her five-year-old son. After arming himself with a loaded single shot shotgun, Alexander put on black gloves and placed two additional shells in each glove.
After the five-year-old child opened the door of the apartment, Alexander entered, surprised to find a fourth individual, Howard Smith (Smith), in the home. Alexander pointed the gun at Smith and shot him in the chest, fatally wounding him. Alexander then turned to Sanchez, Sanchez's girlfriend, and her five-year-old son, saying "I gotta get them." After a failed attempt to reload his gun, however, Alexander fled Sanchez's apartment.
Alexander was convicted of second degree murder and first degree burglary. He was sentenced to 15 years to life with an additional two-year enhancement for the use of a firearm. He received a 16-month consecutive sentence for the burglary conviction. On appeal, this court affirmed the second degree murder conviction, but reversed the first degree burglary conviction due to insufficient evidence.
B. 2007 Parole Hearing
Alexander first became eligible for parole on December 13, 1993. The Board denied Alexander parole nine times. In 2006, however, the Board found Alexander suitable for parole, concluding that he no longer posed an unreasonable risk to society or a threat to public safety. The Governor disagreed with the Board, reversing its decision.
On January 9, 2007, the Board again found Alexander suitable for parole. In support of its decision, the Board stated that Alexander had no prior criminal record. It determined that Alexander had stable familial relationships and strong friendships. The Board found that he had used his time productively in prison by participating and acquiring leadership roles in educational programs, self-help or therapy, and vocational programs. Finally, the Board concluded that Alexander demonstrated sincere remorse for the crime he committed and accepted responsibility for his behavior.
The Board noted that Alexander's commitment offense was an "awful crime." It concluded that although Alexander did not mean to kill Smith, it was not an accident. Although he was involved in four disciplinary incidents during his time in prison, including a serious incident, which involved Alexander stabbing another inmate in 1993, the Board only referenced two of the incidents in explaining its decision to grant parole.
First, the Board addressed a guilty finding by the prison authorities in December 2000 that Alexander was a coconspirator in an attempted federal crime to defraud private citizens by misusing their personal confidential information. The Board accepted Alexander's version of events that the allegations were unfounded and that he was unable to appeal the guilty finding since the original paperwork was lost. The Board then referenced a recent rules violation, occurring in May 2006, where an officer issued a citation to Alexander for not following the officer's orders in a timely manner. The Board recognized that the incident could be looked at as either Alexander questioning the officer or as the officer having a bad day. It chose to discount the violation, determining that Alexander did not have a history of consistently challenging authority.
C. The Governor's Reversal of the Board's Grant of Parole
The Governor disagreed with the Board's decision to grant Alexander's parole. He considered the same factors that the Board considered in granting parole, but he weighed the evidence differently, determining that the negative factors of Alexander's parole suitability outweighed the positive factors.
The Governor stated the crime that Alexander committed was particularly aggravated since some evidence exists that he actively participated in a planned robbery, resulting in Smith's death. Additionally, Alexander's involvement in the crime put other people at risk, including a five-year-old child.
Alexander's prison misconduct also weighed in favor of the Governor refusing to grant his parole. The Governor referenced his violation of attempting to misuse confidential information in an effort to defraud private citizens. He also considered Alexander's recent rules violation in 2006 where he argued with prison staff. Unlike the Board, the Governor stated that Alexander's violation for stabbing an inmate and another violation for minor misconduct were additional factors to consider. The Governor concluded that Alexander "engaged in serious misconduct in prison, and his failure to live within the rules - particularly given the recent and violent nature of some of his conduct - weighs heavily against his parole suitability at this time."
Finally, the Governor determined that Alexander had not taken responsibility for his actions resulting in the Smith murder. He noted that although Alexander continues to maintain the killing was accidental, the Governor did not accept Alexander's version of events. He highlighted several facts as evidence that the crime was intentional:
"James [Alexander], a former Marine, agreed to participate in the offense, knowing that people would be present. He entered Luis' [Sanchez] apartment with a loaded and cocked shotgun, and he took additional ammunition for the gun. After James [Alexander] shot Howard [Smith] in the chest, he did not summon help or attempt to aid Howard [Smith]. Instead, according to the probation report, he pointed the shotgun at Luis [Sanchez], Luis' girlfriend and her son, yelling, 'I gotta get them.' He also attempted to reload the shotgun."
Believing the negative factors outweighed the positive ones in determining Alexander's suitability for parole, the Governor concluded that granting Alexander parole would pose a current risk to public safety. He therefore reversed the Board's decision.
D. Alexander's Habeas Corpus Petition and Subsequent Proceedings
Alexander petitioned the trial court for a writ of habeas corpus, asserting that he was unlawfully in custody since the record did not support the Governor's reversal of the Board's recommendation to grant parole. The trial court granted the petition, finding that Alexander was not a present danger to public safety. The court accepted Alexander's and the Board's version of the facts of the crime and Alexander's version of the disciplinary events.
While Alexander's writ of habeas corpus was pending before the trial court, the Board granted Alexander parole for a third time. The Governor reversed the Board's recommendation. The trial court erred by using Alexander's 2008 parole hearing as supporting evidence that Alexander did not pose a current danger to society in 2007. In reviewing a writ of habeas corpus, judicial review is limited to the determination of whether "some evidence" exists to support the Governor's decision. (In re Rosenkrantz (2002) 29 Cal.4th 616, 625-626. (Rosenkrantz).) Thus, what occurred in 2008 is irrelevant as to whether "some evidence" existed at the time of the Governor's 2007 reversal that Alexander was a current threat to public safety.
This court granted a petition for writ of supersedeas and stayed the trial court's ruling pending the disposition of an expedited appeal.
DISCUSSION
I
GOVERNING LAW
In reviewing an inmate's suitability for parole, the Board "shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration...." (Pen. Code, § 3041, subd. (b).) In determining whether the inmate is suitable for parole, the Board should consider "[a]ll relevant, reliable information available," including:
"[T]he circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability." (Cal. Code Regs., tit. 15, § 2402, subd. (b).)
The Governor may review the Board's assessment, basing his decision of whether to reverse the Board's grant of parole on the "same factors which the parole authority is required to consider." (Cal. Const., art. V, § 8, subd. (b).) Although he must consider the same factors as the Board, his determination of parole suitability is an "independent, de novo review." (Rosenkrantz, supra, 29 Cal.4th 616, 660.) In accordance with due process of law, the Governor's decision must be based on "some evidence" in the record that the inmate is a danger to public safety. (Id. at p. 664.)
II
STANDARD OF REVIEW
In reviewing the Governor's decision, "[i]t 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." (Rosenkrantz, supra, 29 Cal.4th 616, 677.) A court must ensure that the Governor considered the same factors the Board considered, but "the court's review is limited to ascertaining whether there is some evidence in the record that supports the Governor's decision." (Ibid.) Ultimately, the court examines the record to determine whether any evidence exists to support the Governor's decision. (Id. at p. 665.)
In In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence), the Supreme Court reaffirmed its analysis in Rosenkrantz, supra, 29 Cal.4th 616, that "the primary, overriding consideration for the Board is public safety," and that the Governor's decision of parole suitability is subject to the "some evidence" standard of review. (Lawrence, supra, at p. 1205.) It recognized, however, that the "[Rosenkrantz] decision did not specifically reconsider, limit, or amplify the contours of the standard of review recognized and outlined in [that case]." (Lawrence, supra, at p. 1205.)
The Court concluded that "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." (Lawrence, supra, 44 Cal.4th at p. 1212.) Thus, "[t]his inquiry is, by necessity and by statutory mandate, an individualized one," and requires a court to consider the circumstances surrounding the commitment offense, along with the other facts in the record, to determine whether an inmate poses a current danger to public safety. (In re Shaputis (2008) 44 Cal.4th 1241, 1254-1255 (Shaputis).)
In the present case, we review the decision of a trial court granting a petition for writ of habeas corpus. The trial court's decision was based solely on the documentary evidence considered by the Governor as well as the Governor's letter rescinding parole. We review such decision de novo. (Rosenkrantz, supra, 29 Cal.4th at p. 677; In re Collins (2001) 86 Cal.App.4th 1176, 1181.)
III
SOME EVIDENCE EXISTS TO SUPPORT THE GOVERNOR'S CONCLUSION THAT ALEXANDER POSES A CURRENT DANGER TO PUBLIC SAFETY
As noted above, the court reviews the record to determine whether some evidence exists that the inmate is a current danger to public safety. (Lawrence, supra, 44 Cal.4th at p. 1221; Shaputis, supra, 44 Cal.4th at p. 1254.) This standard is "highly deferential" to the Governor's decision. (Lawrence, supra, at p. 1204.)
The Supreme Court has stated that:
"[A]lthough the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety." (Lawrence, supra, 44 Cal.4th at p. 1214.)
Alexander's commitment offense, though not dispositive in and of itself that he is a current risk to society, is probative that he is a continuing threat to public safety.
A. Commitment Offense
The circumstances of Alexander's commitment offense, suggesting that he may have wanted to kill other people, is some evidence that Alexander poses a current danger to public safety. In addition to arming himself with a loaded and cocked single shot shotgun, he brought four additional shells into Sanchez's apartment. After murdering Smith, he said "I gotta get them," pointing the gun at Sanchez, Sanchez's girlfriend, and her five-year-old son. He attempted to insert the additional shells into the gun. Alexander fled Sanchez's apartment only after a failed attempt to reload the gun.
No evidence exists that Alexander was under "significant emotional stress" when he conspired with Hughes to forcibly remove Hughes's stereo equipment from Sanchez's apartment. Additionally, Alexander's commitment offense, in light of his post-incarceration history, suggests that Smith's murder was not an "isolated incident" of Alexander's failure to live within societal norms.
In determining that Lawrence was suitable for parole, the Supreme Court noted that Lawrence was under "significant emotional stress" at the time of the murder from circumstances not likely to recur. (Lawrence, supra, 44 Cal.4th at pp. 1225-1226.)
The Supreme Court found that Shaputis's commitment offense was not an "isolated incident," but rather was a culmination of misbehavior. Although Shaputis was discipline-free in prison, the Court noted that Shaputis's pre-incarceration history of violence supported its conclusion that he was a current risk to public safety. (Shaputis, supra, 44 Cal.4th at p. 1249, 1259.) Both pre- and post-conviction history may be examined to determine whether an inmate's commitment offense is indicative of current dangerousness.
B. Alexander's Attitude About the Commitment Offense
Alexander continues to assert that he did not mean to fire the shotgun, though he states that "no reasonable person enters an apartment with a shotgun, finger in the trigger housing, and claims it was an accident." The Governor determined that although Alexander purportedly accepted responsibility for Smith's murder, he nevertheless maintains the killing was accidental.
The Governor listed several reasons as to why he believed the killing was not accidental. Alexander brought a loaded shotgun into Sanchez's apartment. He armed himself with additional shells. He did not seek medical treatment for Smith after shooting him. Instead, he yelled "I gotta get them" and attempted to reload the shotgun.
The Governor has the discretion to independently assess and weigh the evidence, so long as his decision is not arbitrary or capricious. (Rosenkrantz, supra,29 Cal.4th at p. 667.) Ultimately, as this court found in 1986, Alexander, a trained Marine, knowingly entered Sanchez's apartment with a cocked shotgun and additional shells, cognizant that other people would be there. The Governor's finding that the killing was not accidental is a reasonable interpretation of the evidence, as outlined by the Governor's reasons listed above. Thus, his assessment of the evidence is not arbitrary or capricious.
In Shaputis, the Supreme Court considered the inmate's claim that the killing was accidental, along with other factors, as some evidence of the inmate's unsuitability for parole. (Shaputis, supra, 44 Cal.4th at p. 1260.) As established in Shaputis, "where the record also contains evidence demonstrating that the inmate lacks insight into his or her commitment offense or previous acts of violence, even after rehabilitative programming tailored to addressing the issues that led to commission of the offense, the aggravated circumstances of the crime reliably may continue to predict current dangerousness even after many years of incarceration." (Lawrence, supra, 44 Cal.4th at p. 1228.)
Alexander's attitude about the commitment offense, claiming that he did not mean to fire the shotgun, is in sharp contrast to an inmate who has "consistently, repeatedly, and articulately... expressed deep remorse for her crime." (Lawrence, supra, 44 Cal.4th at p. 1222.) Thus, Alexander's insistence that the murder of Smith was accidental is further evidence of his unsuitability for parole.
Lawrence stated at her 2005 parole hearing, "I take full responsibility for what I did.... And I made that first step back into reality to come and let you know that I do understand that I did something horrible, and I'm willing to suffer the consequences for what I did.... [I]t was an irrational act that I committed against her...." (Lawrence, supra, 44 Cal.4th at p. 1223, fn. 22.)
C. Alexander's Consistent Pattern of Failure to Take Responsibility for his Actions
Alexander has taken great strides to enhance his ability to function within the law upon release from prison by participating in several educational and vocational programs and maintaining strong familial relationships and friendships. However, Alexander has had multiple rules violations in prison. Facially, the violations indicate Alexander's ongoing inability to live within the rules, but more importantly, it indicates Alexander's consistent pattern of minimizing his responsibilities. His responses to the four rules violations in prison are indicative of this habitual pattern.
Alexander received a rules violation in 2006 after he argued with prison staff. Alexander states he had a knee injury that prevented him from complying with the officer's orders in a timely fashion.
In response to a finding by the prison authorities in 2000 that Alexander misused confidential information of private citizens, Alexander maintains he is not guilty of the charges. He asserts he attempted to appeal the guilty finding, but was unable to do so because the appeals board lost the paperwork. Alexander, however, provides no evidence to support this contention.
Alexander received a serious rules violation in 1986 after he was found guilty of stabbing another inmate. He states that because he was fearful of physical harm by two rival gangs, he felt compelled to injure the inmate. Although Alexander contends he "nicked" the other inmate, the inmate was treated for puncture wounds to the left upper abdomen and to his right upper arm.
Finally, prison authorities issued Alexander a rules violation for possession of sleeping pills in 1985. Alexander states he did not know he needed a prescription for the pills, and he was unaware the prescription drugs were considered contraband in prison.
The Governor could rationally draw the inference that Alexander's pattern of failure to take responsibility for his actions is habitual, evidenced not only by his insistence of minimizing his role in Smith's murder, but with rules violations in prison as well. He has not accepted his role in bringing about the commitment offense and several rules violations. Rather, he has consistently externalized his involvement and continues to lack insight as to the consequences of all of his wrongful actions.
DISPOSITION
The Governor's decision that Alexander remains unsuitable for parole because he is a current threat to public safety is supported by some evidence. Specifically, some evidence exists that: (1) Alexander may have wanted to kill other people at the time he murdered Smith; (2) Alexander does not fully accept his involvement in Smith's murder; and (3) Alexander continues to minimize his responsibilities, not only in connection with his commitment offense, but with rules violations as well. Therefore, the trial court erred in its evaluation of the Governor's decision. Accordingly, the trial court's decision to grant Alexander's petition for writ of habeas corpus is reversed with directions to enter a new order denying the petition.
I CONCUR: HALLER, J.
McDONALD, J., Dissenting.
I would affirm the trial court's decision granting the relief requested in James Alexander's petition for a writ of habeas corpus. I do not find some evidence in the record to support the Governor's reversal of the grant of parole by the Board of Parole Hearings (Board).
The Governor relied primarily on his perceived gravity of Alexander's 1983 offense, which resulted in a prison sentence of 17 years to life. The Governor's reversal stated: "The gravity of the second-degree murder committed by Mr. Alexander would alone be sufficient for me to conclude presently that his release from prison would pose an unreasonable public-safety risk." The Governor also referred to Alexander's prison discipline on four occasions during more than 24 years of incarceration--only one of which was for violent conduct that occurred 20 years ago, and to his alleged description of the offense as accidental--although Alexander has accepted responsibility and is remorseful, as factors supporting his decision to reverse the Board's grant of parole.
At least since the decisions in In re Lawrence (2008) 44 Cal.4th 1181 and In re Shaputis (2008) 44 Cal.4th 1241, judicial review of denial of parole by the Board, or reversal by the Governor of the Board's grant of parole, to an inmate incarcerated for an indeterminate life sentence is limited to a review of the record to determine whether there is some evidence the inmate currently is a danger to public safety if released on parole. The majority opinion finds some evidence of Alexander's current dangerousness and reversed the trial court's determination the record does not contain some evidence of his current dangerousness.
I agree with the trial court and its reasoning set forth in its order filed November 10, 2008, granting Alexander's petition for writ of habeas corpus. I adopt and repeat excerpts from that order.
"The Board here felt that [Alexander] did not 'pose an unreasonable risk of danger to society or a threat to public safety if released from prison.' [Citation.] The Board focused on [his] lack of juvenile record. [Citation.] He also has a stable social history as exhibited by long and stable relationships with others[,] including his family and Mr. Kirkham, his attorney. [Citation.] [Alexander] has also been involved in numerous educational programs and has been a leader of his peers and facilitator in a number of programs. [Citation.] The Board found that [he] had realistic parole plans[,] including a job offer from his attorney. [Citation.] The Board was also impressed by the fact that after the [G]overnor reversed his previous parole date, he started a program [that] was a communication class on how to deal with the world in a [nonviolent] manner. [Citation.]
"[Alexander] had only two serious 115s during the 24 years of incarceration. [His] earlier 115[,] which involved a weapon and some violence[,] occurred in 1986. [Citation.] The most recent 115 occurred in 2000, although the alleged offense occurred in 1997. [Citation.] [Alexander] attempted to appeal that decision, but the department lost the original appeal and refused to accept copies. [Citation.] The Board examined [Alexander's] 128s, including a recent one in May of 2006, but attached little significance to them and considered the possibility that the staff took things out on the resident....
"The Governor relied on [Alexander's] prison misconduct record as another basis for denying Petitioner parole. However, the most serious of those disciplinary issues occurred over 20 years ago. The most recent incident [he] was disciplined for occurred over 10 years ago. It was not violent and [he] was not allowed to appeal this finding through no fault of his own. The Governor's letter fails to show that these disciplinary issues have any relevance to [Alexander's] current threat to public safety. Nothing in the record supports a conclusion that [he] poses a threat to public safety because of these long ago disciplinary issues. This is similar to In re Lawrence (2008) 44 Cal.4th 1181, 1224, [in which] the Court [found] that the disciplinary chronos were not relevant to a finding of present dangerousness.
"[T]he Board also took into account the enormous number of positive chronos [Alexander] received. [It] did take into consideration opposition by the Deputy District Attorney of San Diego County and statements by Deputy District Attorney Moses. [Citation.] The Board stated that [Alexander] had done 24 years for a second degree murder and that the sentence included the possibility of parole. [Citation.] The Board found that in spite of the fact that it was an awful crime, [Alexander] had accomplished great deeds in the institution and deserved a second chance. [Citation.] [¶]... [¶]
"The Governor's findings indicate that [Alexander's] crime alone would be sufficient to reach a conclusion that [he] would pose an unreasonable public-safety risk. However, this appears to be a boilerplate conclusion regarding [Alexander's] risk to public safety, particularly in light of various determinations by psychological experts and by the Board that [Alexander] poses a less than average risk to public safety. [In] In re Lawrence[, supra,] 44 Cal.4th 1181[,] the Court found that the commitment offense, a first degree murder, was not a sufficient basis for finding that the [inmate] poses a present danger to public safety when no other factors support this."
With regard to the Governor's reference to Alexander's various descriptions of his offense given to authorities over the years, the Governor concedes Alexander currently accepts responsibility for the offense and is remorseful that his conduct has caused trauma to the victim's family and friends and to his own family and friends. Considering Alexander's current undisputed acceptance of responsibility and remorse, and that for years his psychological evaluations have concluded he is no more a danger to society than the average person, it is a non sequitur to conclude his various descriptions of the offense over the years make him currently a danger to society.
In my opinion, there is not some evidence to support the Governor's reversal of the Board's decision to grant Alexander parole and I therefore would affirm the order of the trial court.