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In re Bettencourt

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Feb 6, 2012
H036814 (Cal. Ct. App. Feb. 6, 2012)

Opinion

H036814

02-06-2012

In re ROGER A. BETTENCOURT, on Habeas Corpus.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Santa Clara County Super. Ct. No. 61727)


INTRODUCTION

Petitioner Roger A. Bettencourt was convicted in 1976 of first degree murder (Pen. Code, § 187) and other offenses, and was sentenced to prison for seven years to life. Following an 18th subsequent parole hearing on November 23, 2009, the Board of Parole Hearings (the Board) found Bettencourt not suitable for parole. On August 11, 2010, the superior court denied Bettencourt's petition for writ of habeas corpus. On December 9, 2010, the superior court filed an order stating in part that it was "reconsidering" its August 11, 2010 order. On March 11, 2011, the superior court granted Bettencourt's petition for writ of habeas corpus and ordered the Board to conduct a new parole hearing within 100 days. The warden where Bettencourt is incarcerated (the Warden) filed an appeal and a petition for writ of supersedeas requesting a stay of the superior court's March 11, 2011 order. On May 18, 2011, we granted the Warden's petition for writ of supersedeas. For the reasons stated below, we will reverse the superior court's March 11, 2011 order.

All further unspecified statutory references are to the Penal Code.

BACKGROUND

The Commitment Offenses

On November 6, 1975, Bettencourt killed 20-year-old Thomas Mallory by shooting him in the back with a .30-06 rifle in a shopping mall parking lot while Mallory was with Patricia Campbell. Campbell had ended her romantic relationship with Bettencourt a month or so earlier. Following the murder, Bettencourt and Campbell left the scene in a stolen vehicle and, over the next five days, they committed additional offenses, including burglary, robbery, and assault with a deadly weapon. They were arrested following a high-speed chase that ended in a shootout with the pursuing officers. Bettencourt was convicted of first degree murder (§ 187), first degree burglary (§ 459), first degree robbery (§ 211), two counts of assault with a deadly weapon (§ 245, subd. (b)), and vehicle theft (Veh. Code, § 10851). The five-year terms imposed on the burglary and robbery counts were ordered to be served concurrent to the seven-year-to-life term on the murder count, and the six-month-to-life terms on the assault counts were ordered to be served consecutive to each other but concurrent to the burglary and robbery terms. The term on the vehicle-theft count was ordered stayed.

The Board's Hearing and Decision

Bettencourt's 18th subsequent parole hearing was held on November 23, 2009. Bettencourt told the Board that he shot Mallory because he was "jealous and . . . overwhelmed with emotions at the time." He also stated that he believed that the evidence at his trial confirmed his claim that he did not shoot at the officers who pursued him, that he intentionally aimed over their heads.

During his incarceration, Bettencourt obtained his GED and he attended group-therapy sessions for a number of years, but group therapy was no longer available at his prison at the time of his 2009 hearing. He had been a "wing porter" since July 2003, but he had no current "laudatory chrono[s]" in his file. He completed a couple vocational programs in the 1980s, but none since then and he was not on any waiting list for additional vocational training. He stated, "I ain't going to jump through the loops no more." He did not think he needed to participate in any additional training or therapy, but he said he would become involved in group therapy again if it was available to him. Most of his time had been spent writing his life history. Upon his release, he planned to live with and take care of his 84-year-old father, and to work at a friend's painting business.

Bettencourt's latest psychological evaluation was completed for his December 2007 parole hearing. Dr. Robert Sargent, who authored the evaluation, concluded that Bettencourt, "compared to other inmates, appears to fall into a category that represents a low risk for future violence in the community."

The Board found Bettencourt not suitable for parole because he currently posed an unreasonable risk of danger if released. Its decision was based on the facts of the commitment offense; Bettencourt's juvenile and adult criminal history, which included other crimes of violence and prior CYA and prison commitments; his "problematic relationship" with Campbell, which included his hitting her and breaking her jaw; his past and present mental state and attitude towards the commitment offense, which included not taking responsibility for his actions; his "lack [of] insight into the causative factors of [his] conduct as evidenced by [his] statements"; his "fail[ure] to upgrade educationally and vocationally"; and his "minimum" parole plans. The Board found that "[t]he psychological report by Dr. Sargent [is] inconclusive. We're not going to use it." The Board also noted that the district attorney's office of Santa Clara County recommended that parole be denied. The Board concluded that Bettencourt required at least an additional three years of incarceration and recommended that he remain discipline-free; participate in available self-help, vocational, and education programs; and cooperate with clinicians in the completion of a clinical evaluation.

The Superior Court Proceedings

On February 5, 2010, Bettencourt filed a petition for writ of habeas corpus in the superior court. He generally contended that the Board's decision was not supported by "some evidence" and that the Board failed to articulate a rational nexus between its findings and his current dangerousness. Specifically, he contended that the Board's continued reliance on the immutable facts of his commitment offense and his prior criminality to deny him parole, with no rational nexus to current dangerousness, violated due process.

The court issued an order to show cause on March 26, 2010, stating in part: "Respondent should pay particular attention to two of Petitioner's claims: [¶] (1) Petitioner's suggestion that [California Code of Regulations, title 15, section] 2238, 'Insufficient Information,' required a continuance instead of the Board's complete rejection of the Psych report as 'inconclusive.' [¶] (2) The Board's requirement of more programming (mental health and self-help) despite the fact that such programming is not available to Petitioner. On this second claim Respondent should outline what programs are available to Petitioner which would satisfy the Board's concerns. An evidentiary hearing may be necessary on this point."

On May 4, 2010, the Warden filed a return to the order to show cause, contending that "the heinous nature of the commitment offenses, petitioner's extensive criminal history, poor performance on parole, defiant attitude, and complete lack of recent programming support the Board's finding of unsuitability." The Warden further contended that the Board's description of the psychological report as "inconclusive" was "within the Board's authority and does not require a continuance" pursuant to California Code of Regulations, title 15, section 2238.

Bettencourt filed his denial (traverse) on June 23, 2010, contending that the facts of his commitment offense and his limited programming did not constitute some evidence that he poses a current threat to public safety, and that the Board should have continued the hearing until it had obtained and reviewed a new psychological evaluation. He requested that the court direct the Board to hold a new hearing and to find him suitable for parole "unless new evidence of his conduct or a change in his mental state subsequent to his November 23, 2009 hearing supports a determination that he currently poses an unreasonable risk of danger to society if released on parole."

On August 11, 2010, the superior court filed its order denying Bettencourt's petition for writ of habeas corpus. "Although the Board committed errors as outlined in the Order to Show Cause, upon careful review it appears the errors were harmless in this instance. Some evidence of Petitioner's lack of programming and bad attitude in front of the Board supports its decision. [¶] The Order to Show Cause is discharged and the petition is denied."

On August 20, 2010, Bettencourt filed a motion for reconsideration of the superior court's August 11, 2010 order. "In so far as the court might have reached its ruling based upon the cumulative weight of the Petitioner's lack of programming and his bad attitude at the hearing, and that each alone does not support a finding that Petitioner remains dangerous, the court is hereby requested to reconsider in light of Pirtle v. Cal. Bd. of Prison Terms, [(2010) 611 F.3d 1015, judgment vacated sub nom. Cate v. Pirtle (2011) __ U.S. _, 131 S.Ct. 2988]." On September 30, 2010, the court filed an order stating: "Having reconsidered the matter pursuant to Petitioner's motion, the petition remains denied."

On October 29, 2010, Bettencourt filed a "motion for clarification and evidence." He requested "clarification of the factual basis for the Court's finding that petitioner had a 'bad attitude in front of the Board' " and "citation to the record of the hearing for identification of 'evidence' to support the Court's finding that he had a bad attitude in front of the [B]oard . . . ." "[P]etitioner hereby alleges that he in fact did not have any bad attitude in front of the [B]oard at all, and that this Court's finding is based on an unreasonable determination of the facts in light of the evidence. In addition, this finding is an unreasonable application of the California 'some evidence' requirement because it is not supported by evidence in the record."

On December 9, 2010, the superior court filed an order stating in pertinent part, "Based upon Petitioner's October 29, 2010, submission, this Court will be reconsidering the August 11th, and September 30th, orders denying Petitioner's challenge to his November 23, 2009, parole denial. (See Jackson v. Superior Court (2010) 189 Cal.App.4th 1051 [(Jackson)].) Further briefing on whether the Board's errors were harmless will be considered if filed within 45 days of the undersigned date." Bettencourt and the Warden filed further briefing on January 27, 2011. In her supplemental briefing, the Warden contended in part that "Petitioner's repeated rejection of [the] Court's findings and belated attempt to have [the] Court reconsider the evidence on the record and new evidence, not before the Board at the time of his November 23, 2009 hearing, is improper."

On March 11, 2011, the superior court filed its order granting Bettencourt's petition for writ of habeas corpus. "For the reasons outlined in this Court's orders of December 9, 2010 and March 26, 2010, and counsel for Petitioner's submission of January 27, 2011, the habeas petition is granted and the Board is directed to provide Petitioner a new parole hearing, complying with due process, within 100 days."

On April 22, 2011, the Warden filed a notice of appeal from the superior court's March 11, 2011 order. On May 18, 2011, we granted the Warden's petition for writ of supersedeas and stayed, pending this appeal, enforcement of the superior court's order.

The Parties' Contentions

The Warden first contends that the superior court abused its discretion in granting Bettencourt's petition for writ of habeas corpus because it lacked jurisdiction to reconsider the petition months after denying it. "[N]o authority allowed the superior court to deny Bettencourt's habeas corpus petition and motion for reconsideration, then issue an order deciding to reconsider the petition four months later and grant the petition seven months later." The Warden further contends that some evidence supports the Board's decision to deny Bettencourt parole.

Bettencourt contends that the superior court had the power to grant reconsideration and to provide the habeas corpus relief it did. "The court's reconsideration of its denial of relief . . . was in accordance with the historic function of the writ, which is designed to ferret out unjust confinement and effectively end it." "Even if the trial court had treated the motion for reconsideration as a successive petition, it had the discretion and certainly the jurisdiction and power to consider it because 'new facts [were] alleged in the petition and supported by exhibits of recent date.' " Bettencourt further contends that the Board's denial of parole was arbitrary and lacking in any supporting evidence.

DISCUSSION

" 'The writ of habeas corpus enjoys an extremely important place in the history of this state and this nation.' [Citation.] 'A writ of "[h]abeas corpus may . . . provide an avenue of relief to those unjustly incarcerated when the normal method of relief—i.e., direct appeal—is inadequate" [citation], and the Great Writ has been justifiably lauded as " 'the safe-guard and the palladium of our liberties' " [citations].' [Citations.]" (Jackson, supra, 189 Cal.App.4th at p. 1062.)

"In this state, availability of the writ of habeas corpus is implemented by section 1473, subdivision (a), which provides: 'Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint.' " (Jackson, supra, 189 Cal.App.4th at pp. 1062-1063.) "Procedures for habeas corpus proceedings are set forth in part 2 of the Penal Code, at sections 1473 to 1508." (Jackson, supra, at p. 1063.) Section 1484 states that the superior court must "proceed in a summary way to hear such proof as may be produced against such imprisonment or detention, or in favor of the same, and to dispose of such party as the justice of the case may require and have full power and authority to require and compel the attendance of witnesses by process of subpoena and attachment, and to do and perform all other acts and things necessary to a full and fair hearing and determination of the case."

"Additional procedures for habeas corpus proceedings in the superior court are set forth in California Rules of Court, rule 4.551,[] including a timetable for the court's ruling on a petition filed in that court, and are also discussed in appellate court decisions. [Citations.] 'Our Supreme Court has emphasized that the goal of "the procedures that govern habeas corpus is to provide a framework in which a court can discover the truth and do justice in [a] timely fashion." [Citation.]' [Citation.]" (Jackson, supra, 189 Cal.App.4th at p. 1063.)

All further rule references are to the California Rules of Court.
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" 'An "order on writ of habeas corpus" is the court's order granting or denying the relief sought by the petitioner.' (Rule 4.550(b)(6).) No appeal lies from an order denying a petition for writ of habeas corpus. [Citations.]" (Jackson, supra, 189 Cal.App.4th at p. 1064.) "An order denying a petition for writ of habeas corpus in the superior court is final immediately upon its filing, and review of the order can only be had by the filing of a new petition in the Court of Appeal. ([In re] Clark [(1993)] 5 Cal.4th [750,] 767, fn. 7 [(Clark)].)" (Jackson, supra, at p. 1064, fn. 5.) "However, the People may file an appeal from an order granting a petition for writ of habeas corpus even if the order does not discharge a prisoner from custody. [Citations.] Therefore, an order granting a petition for writ of habeas corpus is an appealable order analogous to a final judgment. [Citations.]" (Id. at p. 1064.)

In Jackson, the superior court issued an order granting a petition for writ of habeas corpus on October 27, 2009. On November 6, 2009, the People filed a motion for reconsideration of the order, arguing that additional facts had come to light after the People had filed their return. On December 18, 2009, the superior court filed an order granting the motion for reconsideration, vacating its order of October 27, 2009, and inviting the petitioner to supplement his habeas corpus petition. Petitioner then filed a petition for writ of mandate and/or prohibition in this court seeking vacation of the order granting the motion for reconsideration. (Jackson, supra, 189 Cal.App.4th at p. 1056.) This court held that "the superior court has inherent power to reconsider and vacate an order granting a petition for writ of habeas corpus within the 60-day time period for the People to file an appeal from the order, so long as no appeal has yet been filed." (Id. at pp. 1056-1057.) Finding that the superior court acted within its discretion in granting reconsideration in that case, this court denied the petition for writ of mandate and/or prohibition. (Id. at pp. 1068-1069.)

The order at issue in Jackson was one granting reconsideration of an order granting a petition for writ of habeas corpus. The order at issue in this case was one granting reconsideration of an order denying a petition for writ of habeas corpus. Although an order granting a petition for writ of habeas corpus is an appealable order, and thus can be reconsidered by the trial court within the time to file an appeal from the order, an order denying a petition for writ of habeas corpus is not appealable and is final immediately after its filing. (Jackson, supra, 189 Cal.App.4th at p. 1065 & fn. 5.) Accordingly, review of claims in a habeas corpus petition that was denied by the superior court cannot be had by the filing of a motion for reconsideration in that court. (Ibid.; Clark, supra, 5 Cal.4th at p. 767, fn. 7.)

"Generally speaking, California law also prohibits a habeas corpus petitioner from ' "try[ing] out his contentions piecemeal by successive proceedings attacking the validity of the judgment against him." ' [Citation.]" (People v. Senior (1995) 33 Cal.App.4th 531, 537.) "[P]iecemeal presentation of known claims and repetitious presentation of previously denied claims have not been condoned in this state." (Clark, supra, 5 Cal.4th at p. 777.) "It has long been the rule that absent a change in the applicable law or the facts, the court will not consider repeated applications for habeas corpus presenting claims previously rejected. [Citations.]" (Id. at p. 767.)

"Before a successive petition will be entertained on its merits the petitioner must explain and justify the failure to present claims in a timely manner in his prior petition or petitions." (Clark, supra, 5 Cal.4th at p. 774.) "Before considering the merits of a second or successive petition, a California court will first ask whether the failure to present the claims underlying the new petition in a prior petition has been adequately explained, and whether that explanation justifies the piecemeal presentation of the petitioner's claims." (Ibid.)

In this case, the superior court denied Bettencourt's petition for writ of habeas corpus on August 11, 2010. Bettencourt filed a motion for reconsideration of that denial on August 20, 2010. In the motion for reconsideration, he cited a federal court decision that was filed after briefing in the habeas corpus proceeding had closed but before the order denying the petition was filed. Accordingly, the superior court considered the motion for reconsideration as an "adequately explained" "second or successive petition" for writ of habeas corpus when it reconsidered its ruling denying the petition (Clark, supra, 5 Cal.4th at p. 774), but it again denied the petition on its merits on September 30, 2010. Thereafter, on October 29, 2010, Bettencourt filed a "motion for clarification and evidence." In the motion for clarification, he claimed that he did not have a bad attitude in front of the Board, and that the superior court's finding that he did have a bad attitude was not supported by the record. Petitioner did not claim a change in the applicable law or the facts supporting his claim, or explain or justify his failure to present his claim in a timely manner in his prior petition or motion. (Ibid.) Accordingly, review of the superior court's August 11, 2010, and September 30, 2010 orders denying Bettencourt's petition can only be had by the filing of a new petition for writ of habeas corpus in this court; it cannot be had by the filing of a motion for clarification or reconsideration in the superior court. (Id. at p. 767, fn. 7; Jackson, supra, 189 Cal.App.4th at p. 1064, fn. 5.) Therefore, the superior court's order of March 11, 2011, granting the petition for writ of habeas corpus must be reversed.

DISPOSITION

The order of March 11, 2011, granting the petition for writ of habeas corpus is reversed.

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BAMATTRE-MANOUKIAN, J.
WE CONCUR:

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ELIA, ACTING P. J.

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MIHARA, J.


Summaries of

In re Bettencourt

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Feb 6, 2012
H036814 (Cal. Ct. App. Feb. 6, 2012)
Case details for

In re Bettencourt

Case Details

Full title:In re ROGER A. BETTENCOURT, on Habeas Corpus.

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Date published: Feb 6, 2012

Citations

H036814 (Cal. Ct. App. Feb. 6, 2012)

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