Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
PETITION for writ of habeas corpus. Peter Espinoza, Judge. Los Angeles County Super. Ct. No. BA000756
Clifford Brodsky, in pro. per.; Rich Pfeiffer, under appointment by the Court of Appeal, for Petitioner Clifford Brodsky.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Jennifer A. Neill and Gregory J. Marcot, Deputy Attorneys General, for Respondent the People.
MANELLA, J.
By petition for writ of habeas corpus, Clifford Brodsky challenges a decision of the Board of Parole Hearings (Board) finding him unsuitable for parole. We grant the petition.
RELEVANT FACTUAL AND PROCEDURAL HISTORY
A. Conviction
Petitioner is the former chief executive officer for the Mary Jane Company, an apparel company in North Hollywood. In March 1989, angered by a business dispute with Robert Krugman, petitioner entered into a conspiracy with another officer of the Mary Jane Company to murder Krugman and obtain $1.25 million in life insurance proceeds. They hired two hitmen to kill Krugman. In July 1989, a security officer alerted the Los Angeles Police Department, which arrested petitioner and his co-conspirators before Krugman was killed. Petitioner was 46 years old at the time.
On July 10, 1991, pursuant to a plea bargain agreement, petitioner pled no contest to a charge of conspiracy to commit second degree murder (Pen. Code, §§ 182.1, 187). The terms of the plea bargain included the People’s agreement not to oppose parole at the earliest date recommended by the Board (Board). On August 23, 1991, the trial court sentenced to a term of 15 years to life in prison.
All further statutory references are to the Penal Code, unless otherwise indicated.
The plea bargain referred to the Board of Prison Terms, which was replaced by the Board in July 2005. (In re Lawrence (2008) 44 Cal.4th 1181, 1190 (Lawrence).)
B. Parole Consideration Hearing
Petitioner became eligible for parole on August 5, 2001. On November 5, 2007, he appeared before the Board for a parole consideration hearing. During the hearing, the Board admitted documentary evidence, and it heard testimony from respondent and a victim statement from Robert Krugman.
1. Documentary Evidence
According to the documentary evidence, respondent was born in 1943 in New Jersey. He has a B.A. in history and education from Pennsylvania State University, and a Master’s degree in business management. He served in the United States Navy for four years during the Vietnam War, and received an honorable discharge. Prior to the crime for which he was incarcerated, he had no history of criminal behavior. He denied any drug use, and stated that he rarely drank alcohol.
During petitioner’s incarceration, he had never been cited for significant rule infractions. He had participated in several vocational training, self-help, and therapy programs, including an anger management program. The Board admitted into evidence numerous letters of support from petitioner’s former wife, children, relatives, and friends.
The Board also considered several psychological evaluations of petitioner. In 1991, psychologist Jeffrey W. Whiting examined petitioner at the request of his counsel prior to the imposition of sentence. In a report dated August 9, 1991, Whiting opined that as a result of petitioner’s naval service in Vietnam, he suffered from post-traumatic stress disorder (PTSD), and “ha[d] been a timebomb waiting to go off.” Whiting further stated that “[f]ull recovery from PTSD is possible but only when the patient receives intensive treatment.”
In September 1994, psychologist Elizabeth R. Gates reported that petitioner admitted the crime he had committed, regretted that he had not gone to the police to stop the murder plot, and felt remorse for the pain he had inflicted on his wife and children. Petitioner attributed his crime to his drive to succeed and annoyance with failure. According to Gates, petitioner believed “he should have stopped and made a self-assessment earlier in life.” She opined that although petitioner had a history of “rigid thinking,” he suffered from no major thought disorder or mood disturbance, that the crime appeared to be “an isolated incident,” and that petitioner “seem[ed] to have explored the committed offense and . . . come to terms in part with its underlying causes.” Regarding Whiting’s evaluation, Gates stated: “It is not believed that [petitioner] is experiencing current symptoms of [PTSD]. However, given the intensity of his emotional expression related to the war and the instant offense, it is believed that [petitioner] still has some psychological processing to complete. . . . [Petitioner] repeats themes of success and failure, loyalty and betrayal. [Petitioner] would benefit by understanding how and why he maintains those themes so fixedly.”
In an evaluation prepared for a parole consideration hearing, psychologist Steven J. Terrini reported on May 20, 2000, that petitioner took responsibility for the crime, and displayed “appropriate and genuine remorse for [it].” Terrini found no mental disorder that necessitated treatment during petitioner’s incarceration or following parole, and opined that his propensity for violence, if released, was no more than that of the average citizen.
The remaining evaluations were also prepared for parole consideration hearings. In 2003, the Board requested an evaluation that addressed “the extent to which [petitioner] has explored the commitment offense and come to terms with the underlying causes.” On April 16, 2005, psychologist Melvin Macomber reported: “[Petitioner] was the CEO of a corporation that agreed to sell a subsidiary of the business to an associate if they [sic] would repay the 1.1 million dollars used to set up that company. A dispute arose, and the buyer refused to make payments. [Petitioner] stated that his feelings at the time were anger, despair, and fear of looking incompetent if the deal failed. He felt his status as CEO was threatened. . . . [T]his assault to his ego and pride caused him to react in an irrational, irresponsible manner. . . . [¶] [Petitioner] has grown, aged, and matured over the 13 years of incarceration. His earlier feelings of ego and importance as a CEO have disappeared. He no longer holds any feelings of anger or resentment. [¶] . . . [¶] [Petitioner] repeated several times that he is totally responsible for his actions and behavior. He deeply regrets engaging in this offense and the subsequent trauma he has caused the victim and his family. He repeated several times that he is just very thankful that no one was actually hurt in a physical way. His feelings of remorse appear to be quite sincere and genuine.” Macomber found no clinical or personality disorder, and opined that petitioner’s potential for violence, if released, was no more than that of the average citizen.
The final evaluation considered by the Board was prepared in response to directions it issued in 2005. The Board then requested an evaluation that addressed Whiting’s 1991 pre-sentence diagnosis of PTSD and his conclusion that petitioner had been “a ticking time bomb,” which the Board believed had not been properly examined in prior evaluations. On August 25, 2006, psychologist W. K. Marek found that petitioner had no mental health disorder requiring treatment, and opined that petitioner’s potential for violence, if released on parole, was lower than average.
On August 23, 2005, in announcing the Board’s finding that petitioner was unsuitable for parole, the presiding commissioner stated: “[W]hat I am going to ask for is that you be evaluated regarding the statements that were made in 1991 in that psych evaluation that was related to [PTSD], because those issues just sort of went away without really being addressed. And in particular, the fact that [Whiting] at the time indicated that he felt that [petitioner] was a ticking time bomb. And he also noted that [petitioner] likened the victim to President Johnson, in that he felt that they both had betrayed his trust. There was a lot of stuff going on in that report that just got ignored in the future. And so I’m going to ask that those issues you could take care of so that it’s not a question in the future. We don’t really know . . . why [petitioner] is capable or was capable at that time of being involved in something that . . . was so cold-blooded, and was capable of being part of a plan to kill a man for an insurance policy. So I think it’s important those issues be addressed.”
Marek noted Whiting’s 1991 diagnosis, as well as Gates’s 1994 statement that petitioner was not then experiencing symptoms of PTSD. Marek stated: “The 1991 evaluation was completed at the request of [petitioner’s] attorney and was submitted in an attempt at mitigation. With all due respect to [petitioner’s] 1991 evaluator, even if [petitioner’s] symptoms at the time rose to the level of being diagnosable, it is not true that ‘full recovery from PTSD is possible . . . only when the patient receives intensive treatment.’ [Petitioner] never received such treatment and there is no evidence that he ever again displayed PTSD-like symptoms. Also, after all this time, it is clear that [petitioner] is not a ‘ticking time bomb.’ He is a better for parole than almost all inmates. There are no obvious or subtle significant risk factors and precursors to violence.” Marek also addressed the Board’s 2003 direction regarding petitioner’s self-assessment of the crime, concluding that petitioner’s “generally prosocial values” were unlikely to “again manifest themselves in an illegal, harmful manner.”
2. Testimony and Victim Statement
Petitioner stated that he had been “appropriately charged” with the conspiracy to murder Robert Krugman, and that he had acknowledged his guilt since July 1991. He was a key participant in the crime: He arranged the funding, and solicited a person to carry it out. He attributed the crime to “uncontrollable anger over [the] loss of so much money,” and the “strong competitive tendencies” he then felt. According to petitioner, he had remained discipline-free in prison by shedding these tendencies and learning “to walk away.” He expressed regret to everyone affected by the crime.
Krugman also spoke at the hearing. He stated that petitioner was “delusional” and had destroyed his life: “[A]ll I know is it’s cost me the last 18 or 20 years of my life. I had a breakdown last year and the psychiatrist said to me that it was keeping all of this intact. It caused me to go bankrupt, it caused me to almost lose my children and everything else. I don’t know that [petitioner’s] thought process is any different today than it was when this act was committed.”
3. Decision
On November 5, 2007, the Board issued a “one-year denial” of parole, finding petitioner unsuitable for parole and an unreasonable threat to the public if released from prison. It determined that his crime was carried out in a dispassionate and calculated manner, and was motivated by anger arising from a business dispute; moreover, it noted that the crime could not be attributed to youth or inexperience. In reaching its determinations, the Board stated that it had focused on Marek’s psychological evaluation, which had failed to satisfy the Board regarding “the specific information requested.” In addition, the Board took Krugman’s victim statement into account.
C. Petitions for Writ of Habeas Corpus
On January 4, 2008, petitioner filed a petition for writ of habeas corpus in superior court, which was denied on May 16, 2008. Petitioner filed his petition in this court on July 8, 2008. We issued our order to show cause on August 28, 2008.
DISCUSSION
Appellant contends that the Board denied him due process in finding him unsuitable for parole. We agree.
A. Governing Law
At a suitability hearing, the Board must set a release date for an incarcerated individual unless it determines that “consideration of the public safety requires a more lengthy period of incarceration for this individual.” (§ 3041, subd. (b).) Generally, “‘parole applicants in this state have an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation.’” (Lawrence, supra, 44 Cal.4th at p. 1204, quoting In re Rosenkrantz (2002) 29 Cal.4th 616, 654.)
By regulation, the Board may properly deny parole “if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.” (Cal. Code Regs., tit. 15, § 2402, subd. (a).) The pertinent regulation, which sets detailed standards and criteria for determining whether an incarcerated individual is suitable for parole, provides that the enumerated factors “are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel.” (Cal. Code Regs., tit. 15, § 2402, subds. (c), (d).)
Under the regulation, the Board may consider “[a]ll relevant, reliable information” available to it in determining whether an inmate is suitable for parole. (Cal. Code Regs., tit. 15, § 2402, subd. (b).) The regulation enumerates circumstances tending to show unsuitability for parole, including the circumstances of the crime itself; in addition, it provides that “[c]ircumstances 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, subds. (b), (c).) The regulation also enumerates circumstances tending to show suitability for parole. (Cal. Code Regs., tit. 15, § 2402, subd. (d).)
This information includes “the 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.” (Cal. Code Regs., tit. 15, § 2402, subd. (b).)
The circumstances tending to indicate unsuitability include: “(1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered include: [¶] (A) Multiple victims were attacked, injured or killed in the same or separate incidents. [¶] (B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder. [¶] (C) The victim was abused, defiled or mutilated during or after the offense. [¶] (D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. [¶] (E) The motive for the crime is inexplicable or very trivial in relation to the offense.
The circumstances tending to indicate suitability include: “(1) No Juvenile Record. The prisoner does not have a record of assaulting others as a juvenile or committing crimes with a potential of personal harm to victims.
In Lawrence, our Supreme Court clarified the role of the courts in reviewing the Board’s decision: “[W]hen a court reviews a decision of the Board . . ., the relevant inquiry is whether some evidence supports the decision of the Board . . . 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.) The court further explained: “[A]lthough the Board . . . 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.” (Id. at p. 1214.) This standard of review, though extremely deferential, operates to ensure that the Board’s decision comports with the requirements of due process. (Id. at pp. 1211-1212.)
Instructive applications of the standard of review are found in Lawrence and its companion case, In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis). In Lawrence, the petitioner murdered the wife of her lover in 1971, and remained a fugitive until 1982, when she voluntarily surrendered to the police. (Lawrence, supra, 44 Cal.4th at pp. 1192-1193.) After a jury found her guilty of first-degree murder, she was sentenced to life imprisonment with the possibility of parole. (Id. at pp. 1194-1195.) Early psychological evaluations stated that she was narcissistic and displayed signs of various personality disorders; however, after 1993, the evaluations uniformly concluded that she no longer represented a significant danger to society. (Id. at pp. 1194-1195.) During her incarceration, she was free of serious discipline, participated in many volunteer and charitable programs, and earned a bachelor’s degree. (Ibid.)
Beginning in 1994, the Board found the petitioner suitable for parole four times, and on each occasion, the current Governor rejected the Board’s decision. (Lawrence, supra, 44 Cal.4th at pp. 1196-1197.) The fourth rejection occurred in 2006, when the Governor determined that the petitioner was unsuitable for parole due to the circumstances of her crime and the early psychological evaluations. (Id. at pp. 1199-1200.) Applying the standard of review described above to the Governor’s decision, our Supreme Court concluded that there was no evidence to support a determination that the petitioner remained a threat to public safety, in view of her “extraordinary rehabilitative efforts specifically tailored to address the circumstances that led to her criminality, her insight into her past criminal behavior, her expressions of remorse, her realistic parole plans, the support of her family, and numerous institutional reports justifying parole, as well as the favorable discretionary decisions of the Board.” (Id. at p. 1226.)
In Shaputis, the Supreme Court reached a contrary conclusion. (Shaputis, supra, 44 Cal.4th at p. 1215.) There, the petitioner, who had a history of criminal activity, domestic violence, and alcohol abuse, murdered his wife, and was sentenced to a term of 15 years to life. (Id. at pp. 1245-1247.) While in prison, he participated in alcohol abuse programs and other forms of therapy, was discipline-free, and was evaluated as presenting a low risk for violence absent a relapse into alcoholism. (Id. at pp. 1249-1250.) After the Board found him unsuitable for parole, he successful sought relief by writ of habeas corpus in the court of appeal, which directed the Board to reconsider its decision. (Id. at p. 1251.) When the Board found him suitable for parole, the Governor rejected its recommendation, pointing to the circumstances of the crime and the petitioner’s lack of insight regarding it. (Id. at p. 1253.) The Supreme Court affirmed the Governor’s decision, concluding that the record disclosed evidence regarding the circumstances of the crime and the petitioner’s lack of insight, and therefore “some evidence” supported the determination that the petitioner remained dangerous. (Id. at pp. 1258-1260.)
C. Mootness
In response to our request for supplemental briefing, respondent informed us that petitioner’s next parole consideration hearing is set for February 3, 2009, and argued that the petition before us is moot. We disagree. Generally, “there are three discretionary exceptions to the rules regarding mootness: (1) when the case presents an issue of broad public interest that is likely to recur [citation]; (2) when there may be a recurrence of the controversy between the parties [citation]; and (3) when a material question remains for the court’s determination [citation].” (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479-480.) As the issues raised in the petition are likely to arise at future hearings, they are not moot. (In re Scott (2004) 119 Cal.App.4th 871, 877, fn. 1 [petition for writ of habeas corpus following finding of unsuitability for parole is not mooted by occurrence of regularly scheduled parole consideration hearing prior to ruling on petition].)
D. Analysis
We conclude that the Board’s determination that petitioner represents a current threat to public safety is not supported by the evidence. The crux of the Board’s rationale for this determination appears to be that petitioner’s crime was carried out in an “especially cruel and callous manner,” and that Marek’s 2006 evaluation was unsatisfactory. As explained below, although there is ample evidence regarding the circumstances of petitioner’s crime, we discern no evidence of any other factor or circumstance probative of petitioner’s current dangerousness.
The Board was authorized to consider the manner in which the crime was committed, including whether it was committed in a cold-blooded fashion, and whether the motivation for it was “inexplicable or very trivial in relation to the offense.” (Cal. Code Regs., tit. 15, § 2402, subds. (c)(1)(B), (c)(1)(E).) The evidence in the record indicates that over a period of two months or more, petitioner conspired with others to murder Krugman in order to resolve a financial dispute, and that petitioner solicited a hitman to carry out the killing. This evidence supports the Board’s determination that the crime was committed in a “manner disregarding human life.” Petitioner’s motives -- anger over a financial dispute, and an intent to obtain $1.25 million in insurance proceeds -- are properly regarded as “very trivial in relation to the offense.” (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1)(E).) Moreover, his conduct in connection with the crime -- which he planned as a mature and experienced adult -- establish that he acted in a cold-blooded manner. (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1)(B).)
As explained in Lawrence, the circumstances of petitioner’s crime, by themselves, are insufficient to support the Board’s determination, absent other evidence probative of petitioner’s current dangerousness. On this matter, the Board stated: “The psychological report, the one that we focused on, was by Dr. Marek . . . . And the Panel wasn’t satisfied with the doctor’s responses to the specific information requested. [¶] The Panel is also concerned that [the report] didn’t utilize the current documents that are being used by the Board now[] that we’re doing our own psychs [sic]. And it’s . . . this Panel’s opinion that we need to have resolution on that issue. That being said, we’ve asked that a complete new exam be completed utilizing the new format before your next hearing.”
Aside from criticizing the format of Marek’s evaluation, the Board’s sole specification of a material deficiency in the evaluation was that it had not properly addressed “the specific information requested” in 2005. Although the Board had asked evaluators to address petitioner’s insight into the crime and Whiting’s 1991 diagnosis of PTSD, it appears that the Board’s key concern was the latter, as Board members repeatedly mentioned Whiting’s diagnosis during the hearing. As explained above, Marek and his predecessor, Melvin Macomber, found that petitioner had achieved insight into the crime; in addition, Marek concluded that petitioner had shown no symptoms of PTSD as early as 1994, that he was not “a ‘ticking time bomb,’” and that he was “a better candidate for parole than almost all inmates.” Nothing before us discloses the basis for the Board’s dissatisfaction with Marek’s report: Indeed, in finding petitioner unsuitable for parole at a prior hearing in 2006, the Board relied solely on the circumstances of his offense, and noted only that Marek’s evaluation was “supportive of release.”
In view of Marek’s report, Whiting’s 1991 diagnosis does not constitute “some evidence” of petitioner’s current dangerousness. As our Supreme Court explained in Lawrence: “[T]he passage of time is highly probative to the determination before us, and reliance upon outdated psychological reports -- clearly contradicted by petitioner’s successful participation in years of intensive therapy, a long series of reports declaring petitioner to be free of psychological problems and no longer a threat to public safety, and petitioner’s own insight into her participation in this crime -- does not supply some evidence justifying the . . . conclusion that petitioner continues to pose a threat to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1224.)
Nor does the record disclose other evidence that petitioner is a threat to public safety. The only other aspect of the record suggesting that petitioner remains dangerous if released is Krugman’s victim statement. Aside from describing the harmful results of petitioner’s crime, Krugman asserted that petitioner’s “thought process” had not changed since the crime. As there is no evidence that Krugman has contacted petitioner after the crime, his opinion about petitioner’s current dangerousness cannot be regarded as any more probative than Whiting’s 1991 diagnosis. Absent any relevance to petitioner’s current dangerousness, the harm from petitioner’s crime is not a basis for denying parole. In In re Barker (2007) 151 Cal.App.4th 346, 375, the court remarked: “[N]ot for a moment do we ignore the lasting effect a crime may have on a victim or a victim’s family, an effect that may well never diminish, let alone disappear. That said, the effect on the victim is not, and cannot be, the guiding factor in a parole hearing, especially as it is not even mentioned as an unsuitability factor.” In sum, there is insufficient evidence to support the Board’s determination that petitioner is unsuitable for parole.
In view of this conclusion, we do not address petitioner’s contention that the representative of the Attorney General’s office who appeared at the November 2007 hearing breached petitioner’s plea bargain agreement by failing to advocate parole for petitioner.
DISPOSITION
The petition for writ of habeas corpus is granted, and the Board is ordered to vacate the denial of parole and promptly conduct a new parole consideration hearing in accordance with due process under the standards set forth in Lawrence, supra, 44 Cal.4th 1181, and Shaputis, supra, 44 Cal.4th 1241.
We concur: EPSTEIN, P. J., SUZUKAWA, J.
“(2) Previous Record of Violence. The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age.
“(3) Unstable Social History. The prisoner has a history of unstable or tumultuous relationships with others.
“(4) Sadistic Sexual Offenses. The prisoner has previously sexually assaulted another in a manner calculated to inflict unusual pain or fear upon the victim. (Fn. continued on next page.)
“(5) Psychological Factors. The prisoner has a lengthy history of severe mental problems related to the offense.
“(6) Institutional Behavior. The prisoner has engaged in serious misconduct in prison or jail.” (Cal. Code Regs., tit. 15, § 2402, subd. (c).)
“(2) Stable Social History. The prisoner has experienced reasonably stable relationships with others.
“(3) Signs of Remorse. The prisoner performed acts which tend to indicate the presence of remorse, such as attempting to repair the damage, seeking help for or relieving suffering of the victim, or indicating that he understands the nature and magnitude of the offense.
“(4) Motivation for Crime. The prisoner committed his crime as the result of significant stress in his life, especially if the stress has built over a long period of time.
“(5) Battered Woman Syndrome. At the time of the commission of the crime, the prisoner suffered from Battered Woman Syndrome, . . ., and it appears the criminal behavior was the result of that victimization.
“(6) Lack of Criminal History. The prisoner lacks any significant history of violent crime.
“(7) Age. The prisoner’s present age reduces the probability of recidivism.
“(8) Understanding and Plans for Future. The prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release.
“(9) Institutional Behavior. Institutional activities indicate an enhanced ability to function within the law upon release.” (Cal. Code Regs., tit. 15, § 2402, subd. (d).)