Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 74918.
McGuiness, P.J.
In 1983, Petitioner Randy Miles Carter was convicted of first-degree murder with the use of a firearm and sentenced to 27 years to life. He first became eligible for parole in 2000 and has since had four parole eligibility hearings before the Board of Parole Hearings (“Board”), which denied his parole each time. In his present petition, he challenges the Board’s 2008 parole denial decision. We now determine that there is no evidence to support the Board’s conclusion that Carter “would pose an unreasonable risk of danger to society or a threat to public safety if released from prison,” and remand the matter to the Board with instructions to find Carter suitable for parole unless new evidence establishes that he would pose an unreasonable risk of danger if released. If it so chooses, the Board may also condition Carter’s parole on confirmation of suitable parole plans.
The Board made its 2008 decision on May 6, 2008—prior to the Supreme Court decisions in In re Lawrence (2008) 44 Cal.4th 1181 and In re Shaputis (2008) 44 Cal.4th 1241, which clarified the application of the “some evidence” standard in parole suitability decisions. Although the Board did not have the benefit of that case law when it made its decision, we apply the legal standard enunciated by those cases in reviewing the Board’s decision.
Factual and Procedural Background
At the time of the commitment offense, Carter, an 18 year old, had been friends with the victim, Eddie Parker, for about one year. Carter sold his automobile to Parker, who never fully paid for it. Carter, therefore, repossessed the car, effectively ending their friendship. The repossessed car was then “torched,” so that it was unsalvageable. Carter heard that Parker was the culprit.
A few days later, according to Carter, he went, unarmed, to an apartment building to visit friends, where he had a chance encounter with Parker. They began to argue, Parker pushed Carter, and Carter grabbed him. While they were arguing, another friend, Arthur Henry, observed the situation, left, and returned carrying a gun, which he gave to Carter. When Parker saw Henry carrying the gun, he broke away from Carter’s grasp and ran down the stairs. Carter fired one shot at Parker, killing him. Henry then took the gun from Carter and told him to run. As Carter left the building, a police officer questioned him; he denied knowing anything about what happened and left on a bus. Carter spent the next two weeks “on the streets,” considering whether he should flee or turn himself in, until he was arrested at a friend’s house. A witness told the police Carter had previously said he intended to kill Parker.
There are discrepancies between Carter’s version of events and Henry’s. First, Henry said that before the shooting, Carter stated he was going to “stick” Parker, a claim Carter denies. Furthermore, Henry claims that Parker asked him to get the gun, which Carter also denies. There is also evidence that while in custody Carter used a third-party intermediary to threaten Henry in an attempt to get him to change his story. Carter claims that he did send a message to Henry via an intermediary—but that he simply wanted him to “tell the truth” and that he made no threats. Carter believes that Henry’s version of events was motivated by Henry’s desire to distance himself from the crime—but Carter clearly indicates that, regardless, he is fully responsible and accountable for “everything that happened.”
Carter has a significant pre-commitment offense criminal history. In 1973, at the age of 9, Carter accompanied his brother and his brother’s friends, who were burgling a house. A few months later, Carter became involved in a school burglary. Both times he was reprimanded and the matters were closed. In 1977 he was sentenced to probation for petty theft and battery. Five months later, he was committed to Boys’ Camp for a battery. In 1979 his probation was continued due to a new petty theft. Later that year while he and his friends were joyriding in a friend’s family car, Carter was driving when his friends said they wanted to stop at a store, which they then attempted to rob. In 1980 Carter was returned to boys’ camp for brandishing a weapon. He ran away and later served 90 days in juvenile hall. While in custody, he committed a battery on another detainee and was sent to the California Youth Authority, from which he was paroled in 1981. In 1982, he was convicted of carrying a loaded firearm in a public place, unlawfully taking a vehicle, and grand theft.
Early on during his imprisonment, Carter committed numerous disciplinary infractions. Between 1983 and 1987 he received nine serious disciplinary reports for offenses including disobeying orders, failing to report to a job assignment, and using force and violence. His most recent serious discipline incident was in 1987. During his incarceration he also received 13 “[c]ounseling chronos” for minor infractions, most recently in 1998. Thus, as of his 2008 hearing, Carter had received no serious discipline for approximately 21 years and no discipline whatsoever for 10 years.
Carter availed himself of various self-help and self-improvement programs while in prison. He earned his GED; attended both Alcoholics Anonymous and Narcotics Anonymous; participated in anger management and creative conflict resolution programming; and earned vocational certifications in electronics, office services and related technology, vocational painting, and construction. The 2006 Board noted “29 certificates of completion for programs, and there are probably more.” His job assignments included butcher shop, laundry, vocational baking, culinary, vocational electronics, porter, and office services and related technology. The 2006 Board observed that Carter is “known to have excellent work ethics.”
Carter’s most recent psychological evaluation had been completed in 2006. In that evaluation he was given no mental health diagnosis and his overall functioning was rated 90 out of a possible 100 points. The evaluator determined that Carter “expressed... a genuine heart felt sense of remorse and guilt” concerning the commitment offense. He considered that Carter’s post-1987 disciplinary record demonstrated his “sustained level of impulse control and appropriate behavior.” Carter’s risk to public safety was assessed as being “lower than that of the average inmate incarcerated here... and more consistent with those inmates who have successful paroles in the community.”
If paroled, Carter plans to live with his wife in Rancho Cordova. As a secondary plan, however, he also has an offer to live with a friend, Patricia Neal, in Antioch, who will also assist him with purchasing work clothes and paying union dues. His third alternative plan is to live in a transitional housing program, A New Way of Life, in Hayward.
This last alternative—placement in transitional housing—is contingent on Carter’s receipt of a release date because the placement does not confirm acceptance of paroled life prisoners until their release date is set.
As indicated, Carter earned four vocational certifications. He had applied for various jobs and planned to find a job in construction. He planned to participate in the “Earn as You Learn Program,”—an apprenticeship program that pays up to $22.05 per hour.
The Board based its decision to deny parole on four factors: (1) the circumstances of the commitment offense; (2) Carter’s prior criminal record; (3) limitations of the four-page 2006 psychological evaluation; and (4) Carter’s parole plans.
Carter argues that his parole plans and the brevity of the 2006 psychological evaluation were not actually reasons supporting the Board’s unsuitability determination, but merely “concerns” the panel wanted to “tie up,” so that a grant of parole at some later date would “survive the Board’s and the Governor’s decisional review process.” Nonetheless, Carter includes them in his list of the “flawed grounds” the Board used to deny parole in 2008. The Attorney General argues that the Board relied on each of these reasons, which we will discuss below.
On October 3, 2008, Carter petitioned the Alameda County Superior Court, challenging the Board’s 2008 decision. After receiving informal briefing, the superior court denied the petition and, on February 11, 2009, Carter filed a petition for habeas corpus in this court. On April 16, 2009, we issued an order to show cause and appointed counsel on Carter’s behalf.
Discussion
I. There is No Nexus Between Carter’s Criminal Record or Commitment Offense and his Risk of Dangerousness if Released
It is now settled law that “the relevant inquiry for a reviewing court is not merely whether an inmate’s crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor.” (In re Lawrence, supra, 44 Cal.4th at p. 1221.) Accordingly, in order for a parole denial to be based on an immutable factor such as the commitment offense or the prior criminal record, the Board must articulate a “rational nexus” between the reasons cited for the denial and the inmate’s current dangerousness. (Id. at p. 1227.) Here, the Board determined that the offense was carried out dispassionately, in an “especially cruel and callous manner,” and for a trivial reason. However, it drew no connection between those events in 1982 and Carter’s current risk of dangerousness. The failure to articulate how those 26-year-old events contributed to a finding of current dangerousness is all the more striking in view of Carter’s intervening record. Carter’s 2006 psychological evaluation noted that he had “matured emotionally and personally and appear[ed] to have developed much greater insight and understanding of how his former level of impulsivity, low self-esteem, distorted thought processes, and substance abuse were causative factors in his life [of] crime.” In the high pressure prison environment, Carter had been free of serious discipline for more than 20 years. He had taken advantage of numerous self-improvement programs and maintained strong social support. He had successfully held numerous in-prison jobs. If Carter’s commitment offense were still an accurate predictor of his risk of violence, there should have been some indication to that effect in his psychological evaluations, level of insight, in-prison discipline record, and participation in work, educational, and self-improvement programs. The record, however, is devoid of any such indicators. Thus, his 1982 commitment offense provides no evidence that Carter would have posed an unreasonable risk of danger to the public had he been released in 2008 and does not support the denial of parole.
The same analysis applies to Carter’s pre-commitment criminal history, which included “an escalating pattern of criminal conduct” and failures on previous grants of probation. Even given this serious history, there must be a likelihood that Carter would present an unreasonable risk of danger prospectively. There is no evidence his pre-commitment history is sufficient to indicate he currently poses an unreasonable risk of danger to the public.
A. Any Deficiencies in the 2006 Psychological Evaluation Cannot Be Used as a Basis To Deny The Petition
Carter contends that the limited scope of the 2006 psychological evaluation was of concern to the Board, but should not be construed as a basis for denying parole. The Board, however, did not choose to postpone its 2008 hearing to allow for an updated evaluation. Rather, it denied parole and ordered a new evaluation to be done before Carter’s next parole hearing. Because the Board implied it would not grant parole without a more extensive psychological evaluation, we see the 2006 report’s alleged limitations as having been one of the bases for the 2008 parole denial.
The 2006 psychological evaluation was conducted “solely” for the Board’s use. The Board had already reviewed the 2006 evaluation when it denied parole that year. At that time the Board simply referred to the evaluation as containing a “commendatory statement by Dr. Rouse,” citing no deficiencies in the evaluation. Significantly, the Board did not request a further evaluation at that time.
The evaluation discussed all the factors necessary pursuant to the Board’s January 1, 2009, guidelines for comprehensive risk assessments: (1) remorse, (2) insight, (3) commitment offense, (4) role of drugs or alcohol, and (5) need for additional programming. The Board identified no relevant areas of inquiry not discussed in the 2006 evaluation. Thus, the “limitations” of the 2006 risk assessment appear to be that specific instruments, not required when the report was written, had not been used. Because the Board did not identify any specific deficiency, as judged by the applicable standards in effect when the report was written, and because the Board had previously reviewed the report without noting any problems with it or requesting that it be supplemented, the Board cannot now claim the evaluation’s limitations as a basis to deny parole.
The 2009 Guidelines require the use of specific assessment instruments not used in evaluating Carter in 2006. However, nothing in the record before us indicates the use of these instruments was mandatory prior to 2009.
B. Carter’s Parole Plans Were Adequate to Be Assigned a Parole Date.
The Board also indicated that Carter needed to “solidify” his parole plans. Carter’s primary plan was to live with his wife upon release from prison. The Board was concerned that if his wife was living in Section 8 housing, the regulations concerning that program might limit Carter’s ability to live there. However, by making alternate plans—to live with a friend or in transitional housing—Carter had already provided a back-up in case he was unable to live with his wife. Furthermore, the Board holds Carter to a higher standard than the regulation requires. The applicable regulation states that the Board should consider whether “[t]he prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release.” (Cal. Code Regs., tit. 15, § 2402, subd. (d)(8).) To qualify as “realistic” a plan need not be ironclad. (In re Andrade (2006) 141 Cal.App.4th 807, 816-817.) Indeed, the regulation simply requires “realistic plans for release” or “marketable skills” and the Board has acknowledged that he has “marketable skills.” Thus, Carter satisfies this criterion, favoring parole.
In discussing Carter’s employment prospects, the Board acknowledged that he had marketable skills and did not consider that area to be problematic. Although it indicated that greater detail concerning prospective employment would be helpful, the Board specifically stated that such detail was not required. Thus, the Board’s true concern was Carter’s residential parole plans.
“Section 8” housing is a shorthand reference to a federal program to provide subsidized housing to low income individuals. The program was originally authorized in the U.S. Housing Act of 1937. (42 U.S.C. § 1437f.)
Notwithstanding the above, we stress that a determination that an inmate is suitable for parole is not the same as his actually being paroled. After a life-term prisoner is given a parole date, a parole agent investigates the individual’s plans, inter alia, confirming the inmate’s proposed residence plan. (Cal. Dept. of Corrections & Rehabilitation: Adult Institutions, Programs & Parole, Operations Manual, Adult Parole Operations, ch. 8, art. I, § 81010.5.1, at pp. 659-660.) In each case a parole agent determines whether a proposed plan is suitable. (Id., § 81010.5, at p. 659.) If the plan is not suitable, the Parole Agent must try to develop “an appropriate alternate program.” (Ibid.) The Board’s concerns that Carter’s wife’s status as a Section 8 recipient might preclude his being able to live with her are speculative at best. Even if that speculation were correct, his release plans can be adjusted or, if necessary, his release rescinded, when the relevant facts are ascertained. The mere theoretical possibility that Carter might not be able to live with his wife in her current apartment is not an adequate reason to find him ineligible for parole, particularly in light of his alternate plans.
Disposition
There is no evidence in the record before us to support the Board’s 2008 parole denial decision. Consequently, we remand this matter to the Board with instructions to find Carter suitable for parole unless it finds that new evidence establishes he would pose an unreasonable risk of danger to society or a threat to public safety if released. (See In re Gaul (2009) 170 Cal.App.4th 20, 39-40; In re Singler (2008) 169 Cal.App.4th 1227, 1244-1245.) If it so chooses, the Board may condition Carter’s parole on confirmation of suitable parole plans.
We concur: Siggins, J., Jenkins, J.