Opinion
A147921
07-10-2017
In re MELVYN COLEMAN, on Habeas Corpus.
ORDER MODIFYING OPINION AND DENYING REHEARING BY THE COURT:
It is ordered that the opinion filed herein on July 10, 2017, be modified as follows:
On page 34, at the end of the last paragraph before the Disposition, after the word "immediately" and before footnote 29, the following sentence should be added.
"If the Board does not set a release date at the upcoming hearing, the issue may be raised again."The petition for rehearing is denied. This modification does not change the judgment. Dated: __________
/s/_________P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51514983)
Petitioner Melvyn Coleman is a state prison inmate who was convicted of first degree murder, attempted murder, robbery, burglary and possession of a firearm by an ex-convict in 1974, and sentenced to an indeterminate term of seven years to life. He petitioned for a writ of habeas corpus after the Board of Parole Hearings (the Board) found him unsuitable for parole on October 7, 2014, which coincidentally was his 69th birthday. He contends that the refusal to grant parole was arbitrary in violation of his rights to due process; that the Board failed to set the correct adjusted base term in accordance with the stipulated order described in In re Butler (2015) 236 Cal.App.4th 1222 (Butler), a denial of his right to due process; that even the erroneous adjustment of his base term as set by the Board indicates that he has been subject to the imposition of cruel and unusual punishment in violation of the United States and California constitutions, including denial of his statutory entitlement to a uniform and proportionate sentence; and that the Board's three-year denial of a further parole hearing pursuant to Marsy's Law, which governs the timing of parole hearings, resulted in the imposition of ex post facto punishment.
On November 23, 2016, based on the verified petition and supplemental petition for writ of habeas corpus on file in this action, we issued an order to show cause to the Warden of Folsom State Prison (respondent), returnable before this court. Respondent filed a return, and petitioner filed a traverse. We now grant the petition and remand the matter to the Board for further proceedings pursuant to In re Prather (2010) 50 Cal.4th 238 (Prather).
Petitioner filed a petition for writ of habeas corpus in Contra Costa County Superior Court, which was denied on March 14, 2016.
BACKGROUND
Commitment Offense
According to the facts set forth in the Court of Appeal decision affirming the judgment, some time after 8:30 p.m., on May 28, 1973, David and Mary Siewert pulled into the driveway toward the well-lit area by their house when they saw a car, later determined to be registered to petitioner, parked where Mr. Siewert usually parked his car. Mr. Siewert honked his horn, and petitioner came out from the area of the garage with a gun. He walked up to the driver's side window and demanded all of the Siewerts's money. Mrs. Siewert handed money from her purse, and Mr. Siewert handed over his billfold. Petitioner then began to shoot into the car, killing Mr. Siewert and wounding Mrs. Siewert. Petitioner fled on foot, and was later apprehended. Immediately after being told that he was under arrest as a suspect in an attempted homicide, petitioner repeatedly stated, "I didn't do it," and later, upon being questioned by police, stated that a " "hitchhiker ripped me off and took me to the house and made me do it.' " At trial, petitioner testified that he had picked up a hitchhiker who had a similar build and complexion, and the hitchhiker forced him at gunpoint to drive to the victims' house where the hitchhiker then committed the crimes in question and forced petitioner to switch clothes with him. A subsequent search of petitioner's residence produced a gun holster and four .38 caliber bullets. No weapon was ever found, but slugs recovered from the victims' car and from their bodies were identified as .38 caliber bullets. Petitioner denied the testimony of three witnesses that 10 days before the murders he had shown three witnesses a gun that he claimed he used to protect himself, and claimed it was only a toy gun. (One witness, a former Marine, identified the gun as a .38 caliber revolver.) He denied that the holster found at his house was used to hold a gun, and claimed he had found the bullets in a trash can while helping his father haul trash. Mrs. Siewert identified petitioner at trial as looking like the person who shot her and her husband.
Petitioner has long since admitted that he committed these crimes, dating back at least as far as 1982. And at the October 7, 2014 parole hearing, he said that facts in the appellate opinion are "true."
Preconviction History
By his own account, petitioner was sent to the California Youth Authority (CYA) when he was 13 or 14 for making lewd and obscene comments to a 13-year-old girl, after he had been sent to juvenile hall three or four times in a year. After he was released, he was sentenced again to CYA for robbery after hitting a young woman in the face while attempting to steal her purse. When he was 19 years of age, he was convicted of statutory rape of a 16-year-old female and sentenced to probation. His probation was revoked, and he was sentenced to state prison when he violated probation by carrying an unloaded gun. That led to his first (and only) prison term before committing the life offense.
The comprehensive risk assessment prepared in connection with petitioner's October 2014 parole hearing states that petitioner was convicted at trial, and "the act was determined to have been mutual/consensual."
Postconviction History
Petitioner's discipline history in the now 40-plus years since his conviction includes 28 rules violations and over 30 counseling "chronos." At the time of the October 2014 hearing, he had been discipline-free for approximately seven years. His two most recent rule violations were for throwing a food tray at an officer in 2004 and mutual combat with a prisoner in 2007. The 2004 incident occurred in a cafeteria when an officer told petitioner to tuck his shirt in. Petitioner reportedly responded "fuck you" and said he would do it when he sat down because he was holding his food tray in one hand and using his cane with the other. Petitioner stated that he stumbled and dropped the tray, and the coffee on his tray hit the officer's neck, not that he threw the tray (and the coffee) at the officer. He was 59 years old at the time.
When asked at the parole hearing how it could be that the coffee hit an officer on the neck, petitioner said, "I should have handled it different. I know I should have handled it different. And even with the thing with the tray with the officer when I dropped that tray, it bothered me because he . . . actually lied and said I threw the tray at him, and I didn't do that." When asked by the Board at the October 2014 hearing whether he said "fuck you" to an officer during the incident, he responded, "If they said I did it, I said it."
The most recent rule violation in 2007 involved a fight with a new cellmate. The cellmate and petitioner disagreed over a chair in the cell, and the cellmate started punching petitioner in a hallway. Petitioner fought back. The rules violation report written at the time notes that because petitioner "acknowledges his role and responsibility for circumstances that led to mutual combat and [has] no recent disciplinary history of violence," he was given only a "lower-end" credit loss for the violation. (Emphasis added.) He was 62 years old at the time.
This "mutual combat" was a Division D offense, the next-to-lowest level of "serious" rule violation in the CDCR. There are two types of rules violation reports, administrative and serious. (Cal. Code Regs., tit. 15, §§ 3312-3315.) Serious rule violations are further classified as Division A to Division F, from most serious to least serious. (Id., §§ 3315, 3323.) An administrative rules violation is not a "serious" rules violation. (Id., §§ 3313, subd. (a), 3314.)
Petitioner previously had only one other violence-related rule violation, for mutual combat in 1987. That occurred 27 years before his most recent parole hearing.
Petitioner admitted at the 2014 parole hearing that in the past he had received many rules violations stemming from his refusal to work at an unpaid job, and a rules violation arising out of his attempt to be placed in a single cell.
Petitioner's 2014 Psychological Evaluation
Dr. James Rokop, a forensic psychologist, administered a comprehensive risk assessment and psychological evaluation of petitioner in August 2014 in anticipation of the October 2014 parole hearing. This resulted in an 11-page report based on Dr. Rokop's review of petitioner's file, a lengthy clinical interview, and the "administration of standardized approaches to risk assessment." The "interview process" was supervised by a senior psychologist supervisor with the Board's Forensic Assessment Division, who reviewed and also signed the evaluation.
Dr. Rokop noted that petitioner was "mobility impaired" and required the use of a cane. Petitioner participates in the Disability Placement Program.
Petitioner was raised by his mother and stepfather, and had a younger sister. Although at first petitioner described an "unremarkable" childhood, Dr. Rokop described a "theme emerged centering on his emotional reaction to an absent father figure." This was exacerbated by a mother who withheld any information about petitioner's biological father, and, according to petitioner, rewarded him for acting " 'mean and bad.' " Dr. Rokop found little evidence to suggest that there was "any specific pivotal experience that shaped [petitioner's] experiences in a negative direction."
Dr. Rokop reported that at age 11 or 12, petitioner became "engaged in mischief to stave off the boredom and monotony of his life." Petitioner had a "relatively uneventful" school history, with one fight and school suspension in 7th grade, and left school in 11th grade. He earned a high school diploma in prison. Petitioner married when he was 19 or 20, but it was a short-lived relationship. One year before he committed his life crime, he met a woman with whom he fell in love, and they lived together. After he was incarcerated, he told her to go on with her life.
Dr. Rokop discussed petitioner's juvenile record with him in some detail, which required petitioner to remember and discuss incidents that had occurred nearly 55 years ago when he was 14. Dr. Rokop wrote that petitioner's age "should be a consideration" in his ability to recall and reflect on his motivations, noting that petitioner "struggled to remember the finer details of what happened given his current age and resorted to a self-characterization of being a 'very selfish, self-centered kid.' " He "struggled to explain petty thefts and breaking and entering that appeared in his history and he softened the characterization of a school break-in by describing the items stolen as 'erasers, paper, and childish stuff.' "
According to Dr. Rokop, upon the death of petitioner's sister in 2000, petitioner suffered and was diagnosed with a severe depressive disorder, and obtained correctional clinical case management services through the prison mental health care system. The diagnosis was more recently "a less serious depressive disorder," and Dr. Rokop now considers petitioner's final diagnosis as "unspecified depressive disorder in full remission." (Capitalization and italics omitted.)
Although at one point earlier in his prison term petitioner was diagnosed with alcohol abuse, by 2002 his evaluations did not reflect that diagnosis, and petitioner "vigorously denied" any issue ever with alcohol abuse. At the Board's request, he participated in alcoholics and narcotics anonymous programs, but no longer participates in them. Dr. Rokop did not find evidence to diagnose petitioner with a substance abuse disorder, and characterized this as "[c]onfusion about alcohol abuse." Nor did Dr. Rokop believe it should be given any prominence in considering petitioner's overall risk factors for violence.
Reviewing petitioner's file from his lengthy imprisonment, Dr. Rokop observed that petitioner "historically" has "preferred to be alone in a cell," and that difficulties with a cellmate led to the sanctions in 2007 we have described above regarding the chair. Dr. Rokop observed that "[p]resently Mr. Coleman still emphatically prefers single occupant living but there is no evidence since 2007 that his desires have translated into aggressive actions." Dr. Rokop noted that in the past petitioner met the criteria for antisocial personality disorder, which had been "considered improved in past evaluations" before the 2007 incident with a cellmate "raised suspicions about continued issues with conduct." Dr. Rokop wrote that "Although it is noteworthy that petitioner has been discipline free since 2007, I find the rendering of this diagnosis of [antisocial personality disorder] continues to be a relevant consideration."
Under the heading pertaining to petitioner's "institutional adjustment/programming," Dr. Rokop wrote that, "[e]ncouragingly, Mr. Coleman finds himself absent of institutional charges (115s or 128s) for the last seven years."
Dr. Rokop undertook a forensic assessment of petitioner's risk for violence, looking at historic factors, clinical factors, and risk management factors. His conclusion was that petitioner "represents a Low risk for violence. He presents with low risk relative to life-term inmates and non-elevated risk relative to other parolees. [¶] Mr. Coleman has demonstrated progressive maturity in his prosocial behavior and continues to benefit from various prison programming. . . . [¶] Mr. Coleman's slight defensiveness and the limits of his insight do not necessarily indicate greater risk given that he has reached his potential in both of these areas and I found that gauging his compliance will be key to his risk management. I am concerned about his lack of computer skills and unrealistic aspirations to work in a job that requires physical labor but am encouraged by the fact that he will have some means to support himself otherwise. The overall picture of his risk is a background of high historical risk loading mitigated by clinical interventions and age, followed by a mixed review of risk management plans."
These factors, which are the basis for Dr. Rokop's ultimate conclusion of a low risk for future violence, are spelled out in detail in the report. They include the following: "Early in his incarceration, [petitioner] exhibited a preference for being isolated, had difficulties relating to others, and was more paranoid. To [petitioner's] benefit, however, the overall picture of his time in incarceration has suggested a trend toward more prosocial involvement with others and improved problem solving." And petitioner's prison history "indicated that he has made gains in greater behavioral and emotional self-control as demonstrated by a lack of prison infractions over the last seven years. There is no evidence of violent ideation and symptoms of his mental disorder are currently in remission."
Dr. Rokop refers to administering an assessment referred to as "HCR20V3," which we take to mean "HistoricalClinical Risk Management20." (See In re Morganti (2012) 204 Cal.App.4th 904, 910.) He also refers to petitioner's "PCLR," which we understand is the "Psychopathy Check ListRevised" approach. (Id. at p. 910.) Petitioner's "total PCLR was less than one standard deviation below the mean of United States male inmates and well below the cutoff or threshold commonly used to identify dissocial or psychopathic personality."
Petitioner states in his supplemental petition that he has a California Static Risk Assessment (CSRA) score of " '1,' " which is the lowest risk assessment score possible, according to "Classification Committee Chrono" dated January 22, 2016. (Cal. Code Regs., tit. 15, § 3768.1, subd. (b)(1).) The CSRA is "an actuarial tool that computes the likelihood to re-offend (incur a felony arrest within a three-year period after release to parole), and uses static indicators that do not change. These indicators include gender, age and offense history of the offender." (Id. § 3768.1, subd. (c).) The Board's regulations describe the CSRA as a "tool that utilizes a set of risk factors which are most predictive of recidivism." (Id. § 3768.1, subd. (a).) Petitioner has zero classification points, which places him at the lowest custody possible, but because of his life offense has a "mandatory minimum" classification score of 19. (Id. §§ 3375.1, subd. (a)(2) & 3375.3.)
In the discussion of "risk management factors," Dr. Rokop appeared to be referring to petitioner's "unusual benefit of securing a large sum of money upon his release, which should assist him with his immediate living concerns," resulting from a trust fund left to him by his deceased sister.
Dr. Rokop also took into account petitioner's age as it pertained to future risk of violence considerations, concluding that petitioner met the criteria for "Elderly Parole" consideration as defined by the Board's regulations. Dr. Rokop summed up this analysis: Petitioner's "current level of mobility and age should be considered protective against risk to reoffend violently. Although [petitioner] can present as slightly irritable and defensive, and the depth of his insight is limited, I found that this presentation is not necessarily risk-enhancing. With [petitioner], I found it likely that we have reached the limits of his ability to analyze past situations and I am concerned that the issue of insight is being compounded by [petitioner] parroting the vocabulary of interviewers in an attempt to say the 'right' words to convey new knowledge. In spite of these issues, I found that risk management should be more focused on pure compliance." Dr. Rokop believed that petitioner's "anticipated risk management needs" on parole would be intervention and monitoring.
The Board has an "Elderly Parole Program," which affects parole suitability hearings scheduled on or after October 1, 2014, as was petitioner's. A memorandum from the Board dated June 16, 2014, which is among the exhibits in support of the petition in this case, states that inmates who are 60 years or older and who have been incarcerated for 25 years or more are eligible for the program. As pertinent here such inmates, including petitioner, are entitled to a risk assessment in connection with their parole hearings which "will specifically address how the inmate's advanced age, long-term confinement, and diminished physical condition, if any, may impact the inmate's potential risk for future violence."
Parole Hearing and Decision
On October 7, 2014, the Board held a two-hour hearing before recessing to deliberate. It was petitioner's 17th parole hearing, and it took place on his 69th birthday. The Board acknowledged his obvious "mobility issues;" he was using a cane and had "back issues." Over the course of the hearing, one of the deputy commissioners commended him for "stay[ing] involved" in self-help prison programming, noting that "it's been a long time for you. You're here at subsequent number 16 hearings, so you've been doing this a long time and that you've kept your hand in is positive . . . . [¶] You've kept yourself involved." The presiding commissioner complimented petitioner for being so "adept at verbal communication as you have proven to be during the first hour of this hearing . . . ." He characterized petitioner's financial situation as "rather unusual . . . . [¶] . . . I mean you're blessed," referring to the availability of petitioner's trust fund as a source of funds for his post-prison life. The presiding commissioner acknowledged that petitioner had "gone over the [commitment offense] many, many times. And certainly today you've been willing to discuss it with us with no sign of irritability, and we appreciate that." Ten pages in the transcript later, the presiding commissioner again remarked that he "[hadn't] noted [any] frustration" by petitioner; to the contrary, "I found you to be very willing to discuss anything that I wanted to discuss, which certainly the Panel appreciates."
But the Board came back after deliberation with its decision to deny parole, concluding that petitioner "does pose a present risk of danger to society and a threat to public safety if released from prison." The presiding commissioner acknowledged that petitioner is 69 years old, "and that alone does suggest a statistically reduced risk of violent recidivism," and that he is "mobility impaired." (Emphasis added.) "At some future date, age and impairment might somewhat push [petitioner] over the top in terms of finding of suitability," but not at this parole hearing, and the Board denied a future parole hearing for three years. In so finding, the Board acknowledged that at the time of the hearing, petitioner had not received any rules violations reports for "somewhat over seven years." (Emphasis added.) The Board then proceeded to state the reasons why petitioner represented an "unreasonable threat to public safety," and would not be paroled: Petitioner committed the offenses in a "disturbing manner" and with no "rational justification," and he had a prior criminal history which included a juvenile record, probation and parole. The presiding commissioner described petitioner as "a bit of a mess at the time of the commitment offense," when he was 28 years old. That said, the presiding commissioner acknowledged that "[a] lot of time has passed since then," and "with the passage of time, the commitment offense and even prior criminality may no longer indicate a current risk of danger which [sic] considered in light of a lengthy period of rehabilitation," and that petitioner "has engaged in some rehabilitative activities." The Board continued that petitioner "during a significant portion of his lengthy incarceration, did demonstrate what the panel believes to be an unstable social history. He's received numerous rules violations reports, and quite frankly, during the first 20 or more years of [petitioner's] incarceration, he appears to have spent a lot of time bouncing off of staff and bouncing off of other inmates. That seems to have diminished of late, which is good. [Petitioner] has engaged in serious misconduct during his incarceration. He's received what appears to be 27 115s and quite a few 128As as well. He was young at the time of the commitment offense comparatively so. He was 28 then. He's in his late 60's today, but in his early 60's he was still willing to become involved in a violent physical altercation with another inmate [the mutual combat over the chair]. And approximately a year before that he was willing to become involved in a physical altercation which resulted in him receiving a 115 for assaultive behavior toward staff [the incident in the cafeteria]. So [petitioner's] history of pro-criminal behavior, his history of antisocial behavior and his history of experiencing and demonstrating difficulty adhering to rules and regulations and getting along with other people without resorting to violence is lengthy."
This is a misstatement; the incident in the cafeteria was three years prior to the mutual combat with the cellmate. By the time of the 2014 parole hearing, 10 years had passed since the cafeteria incident. Petitioner was 69 years old at the time of the 2014 parole hearing.
Another issue was petitioner's "remorse," as to which the presiding commissioner stated "the Panel is scratching its head." Acknowledging that "the Panel believes that he probably wishes that he hadn't done it . . . we couldn't help but note the mention of the victims, a spontaneous mention of the victims just wasn't in [petitioner's] lexicon today. It wasn't in his lexicon during the hearing proper. He didn't mention the victims during his closing. This doesn't mean that he doesn't experience remorse, but it certainly didn't provide the panel with any understanding of the extent in which he does experience remorse . . . ."
Another issue was petitioner's plans for release. The Board concluded that, "[w]ith respect to his plans for release, the Panel supposes they are fundamentally realistic." Notwithstanding, the presiding commissioner announced "a distinct impression that [petitioner] hasn't put much energy into planning for his own release." Petitioner had presented a letter of acceptance from a transitional housing program in Los Angeles (PREP), but he had never lived in Los Angeles, and the PREP program is one that will accept "virtually anybody who takes the time to send a letter to them." But on the other hand, the presiding commissioner was quick to assert that he didn't "mean to diminish the legitimacy of the PREP program in Los Angeles County. I make these comments simply because I believe they reflect a lack of energetic output on Mr. Coleman's part, which appears to have been a hallmark of his life going back to the time of the commitment offense as a matter of fact."
Another reason was the lack of insight into the crime itself. Acknowledging that it occurred "a long time ago," the Board "concurs with the clinician that [petitioner] does appear to lack what we would expect in the way of insight into why he actually chose to pull the trigger unnecessarily and kill two individuals who represented no threat to him. The passage of time makes the lack of insight into this particular area, perhaps when taken alone, less of an issue, but we're not taking it alone, because [petitioner] presents today with a lengthy history of rules violations reports. We certainly note the commitment offense itself followed other violent crimes. [Petitioner] still to this day does not understand fully and adequately what made him such a dangerous person back then. He indicated when pressed that he didn't care about others, that he didn't care about the law, that he was an impulsive decision maker, that he was selfish and prone to resist authority, that he was willing to harm others if he felt that it would benefit him in some way. Those are my words as much as they are [petitioner's], but I think his statements are consistent with what I just said. The Panel certainly notes that the last two rules violation reports which he received, neither of which is comparatively recent, but both of which occurred within the last decade. [(Emphasis added.)] The last 20 percent or so of his incarceration resulted apparently from the same personality characteristics that made him dangerous at the time of the commitment offense, adding to the Panel's concern and bring these issues current in our mind today and creating a nexus to current dangerousness is the fact that when these 115s are discussed with Mr. Coleman, he consistently minimizes his behavior, deflects the blame to others, and in essence, avoids acceptance of responsibility for his actions. He did so with respect to the rules violation report, which followed the altercation with staff. He did so with respect to the rules violation report, which followed the altercation with his cellmate. We believe that his tendency to insufficiently analyze and minimize his own previous dangerous behavior makes it more likely that he will behave in a dangerous fashion when faced with potential for conflict in the future. . . . We believe that [petitioner] still lacks the demonstrated ability to deal with conflict in a manner that would not result in violence. [Petitioner] came to prison because, essentially, he'd rather steal and play than work. He experienced conflict once he came into the system, and he experienced violence. Mr. Coleman is still not thrilled to work. He still experiences conflict with others at regular junctures. He's still resistant to self-examination, and he's still prone to minimization. His mindset in these respects is similar to that which he had at the time of the commitment offense. He still represents an unreasonable risk of dangerousness despite his age and despite his mobility impairment. His situation could change depending upon his degree of impairment. Certainly his age is moving in one direction at this point, and therefore, the outcome is ultimately predictable. We do note that the Comprehensive Risk Assessment prepared by Dr. James Rokop and approved on September 2nd of 2014 found that [petitioner] would present a statistically low risk of re-offense in the free community; however the Panel also notes that risk assessments of psychological reports provide information bearing on inmates' risk of future violence. They don't dictate our decisions regarding findings of suitability. We base our decisions upon all the information available to us that's deemed reliable and relevant, including the Comprehensive Risk Assessment. In this case we've done just that. We are convinced that despite the overall risk rating applied to [petitioner], that he would pose a potential threat to public safety if released at this time."
This was an apparent misstatement; only one person was killed.
Finally, the presiding commissioner stated that the Board had also relied on an August 9, 2013 confidential memorandum (confidential memorandum), which it viewed and discussed outside petitioner's presence at the end of the hearing. When the Board announced its decision denying parole, it stated that the confidential memorandum was "a small part of the basis" for finding petitioner unsuitable. The presiding commissioner characterized it this way: "I think it would be accurate to state that it as [sic] supportive of our decision more than conclusively leading us to it." As far as we know, petitioner has never had access to the confidential memorandum, then or on appeal.
A copy of the confidential memorandum and the "confidential tape containing [the Board's] observations relative to this document" that was created during the Board's deliberation after petitioner's parole hearing, were provided to us on appeal. We asked the Attorney General by written order dated June 16, 2016, whether she intended to rely on the confidential memorandum and accompanying confidential transcript provided when defending the Board's October 7, 2014 decision, or whether the court may disregard this evidence. We stated that if the Attorney General advised us that she intended to rely on the evidence, then the superior court would be directed to hold an in camera hearing, as provided in Evidence Code section 915, subdivision (b), "for the purpose of having the Warden of Folsom State Prison assist the superior court in determining how much of the contents of the memorandum can be disclosed to petitioner's counsel, and the Attorney General is directed to serve a suitably-redacted version of the memorandum to petitioner's counsel. (See Ochoa v. [Superior Court] (2011) 199 Cal.App.4th 1274, 1282 [(Ochoa)].)" The Attorney General answered that she would not be relying on the confidential materials, and informed us that we may disregard the confidential memorandum and transcript when deciding the petition. So we do.
DISCUSSION
I. The Board's Denial of Parole
Standard of Review
In our recent opinion in In re Perez (2016) 7 Cal.App.5th 65, 83-84 (Perez), we described the applicable rules and standard of review that govern our review of the Board's decision.
"[Penal Code] [s]ection 3041, subdivision (a)(2) provides that one year before an inmate's minimum eligible parole date, a panel of commissioners shall meet with the inmate and shall 'normally' grant parole. Subdivision (b)(1) further provides that the Board 'shall grant parole to an inmate 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 for this individual.' ([Pen. Code,] § 3041, subd. (b)(1).) 'As a result, parole applicants have a "due process liberty interest in parole" and " '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.' " ([In re] Lawrence[ (2008) 44 Cal.4th 1181, 1191, 1204] [(Lawrence)], quoting In re Rosenkrantz (2002) 29 Cal.4th 616, 654.)' (In re Stoneroad (2013) 215 Cal.App.4th 596, 615 (Stoneroad).)" (Perez, supra, 7 Cal.App.5th at pp. 83-84.) The regulations that govern petitioner's parole suitability are found at title 15, section 2281 of the California Code of Regulations, for murders committed on or before November 7, 1978. (See In re Shaputis (2008) 44 Cal.4th 1241, 1256, fn. 13 (Shaputis I); Cal. Code Regs., tit. 15, § 2400 [explaining scope of Article 11, which governs parole consideration criteria for murders committed on or after November 8, 1978, as compared to Article 5 for murders prior to that date].) Age is one of the listed "Circumstances Tending to Show Suitability" for release. As fully stated in the regulation: "Age. The prisoner's present age reduces the probability of recidivism." (Cal. Code Regs., tit. 15, § 2281, subd. (d)(7).) This is a "general guideline[]," and it is "left to the judgment of the panel" to consider the importance to attach to any "circumstance or combination of circumstances in a particular case." (Id., § 2281, subd. (d).)
The parole consideration criteria in section 2281 is the same as for murders committed on or after November 8, 1978, which are governed by California Code of Regulations, title 15, section 2404. (Shaputis I, supra, 44 Cal.4th at p. 1256, fn. 13.)
"We review the Board's decision under a 'highly deferential "some evidence" standard.' " (In re Young (2012) 204 Cal.App.4th 288, 302 (Young), quoting In re Shaputis (2011) 53 Cal.4th 192, 221 (Shaputis II).) "[T]he appellate court must uphold the decision of the Board or the Governor 'unless it is arbitrary or procedurally flawed,' and it 'reviews the entire record to determine whether a modicum of evidence supports the parole suitability determination.' ([Shaputis II, supra, 53 Cal.4th] at p. 221.) 'The reviewing court does not ask whether the inmate is currently dangerous. That question is reserved for the executive branch. Rather, the court considers whether there is a rational nexus between the evidence and the ultimate determination of current dangerousness. The court is not empowered to reweigh the evidence.' (Ibid.) At the same time . . . the Board's decision must ' "reflect[] due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards." ' (Shaputis II, at p. 210, citing [In re] Rosenkrantz, supra, 29 Cal.4th at p. 677, Lawrence, supra, 44 Cal.4th at p. 1204, and Shaputis I, supra, 44 Cal.4th at pp. 1260-1261.)" (Stoneroad, supra, 215 Cal.App.4th at p. 616.) We are required to affirm a denial of parole "unless the Board decision does not reflect due consideration of all relevant statutory and regulatory factors or is not supported by a modicum of evidence in the record rationally indicative of current dangerousness, not mere guesswork." (Ibid.; Perez, supra, 7 Cal.App.5th at pp. 83-84.)
When we evaluate a parole suitability determination by the Board, we do not look for "some evidence" in the abstract. As we explained in Perez, "The nexus to current dangerousness is critical. 'Lawrence and Shaputis I "clarified that in evaluating a parole-suitability determination by either the Board or the Governor, a reviewing court focuses upon 'some evidence' supporting the core statutory determination that a prisoner remains a current threat to public safety—not merely 'some evidence' supporting the Board's or the Governor's characterization of facts contained in the record." (Prather, [supra, 50 Cal.4th] at pp. 251-252.)' (Stoneroad, supra, 215 Cal.App.4th at p. 615.) ' "It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public." (Lawrence, supra, 44 Cal.4th at p. 1212, italics added.) The Board "must determine whether a particular fact is probative of the central issue of current dangerousness when considered in light of the full record." (Prather, . . . at p. 255, italics added.)' (Young, supra, 204 Cal.App.4th at p. 303.) ' "[T]he proper articulation of the standard of review is whether there exists 'some evidence' demonstrating that an inmate poses a current threat to public safety, rather than merely some evidence suggesting the existence of a statutory factor of unsuitability. (Lawrence, . . . at p. 1191.)" ([Prather], at pp. 251-252.)' (Shaputis II, supra, 53 Cal.4th at p. 209.)" (Perez, supra, 7 Cal.App.5th at pp. 84-85.)
Keeping these standards in mind, we review the Board's decision.
Analysis
a. No Evidence Petitioner Lacked Remorse
The Board voiced an inchoate concern, expressed as "scratching its head," about the extent of Petitioner's remorse and observed that petitioner failed to mention the victims' names at the parole hearing. There was no factual basis for a finding that petitioner lacked remorse.
Dr. Rokop reported that petitioner "thinks about the victims 'all the time' and realizes that it must have had a devastating effect on them and their families and even their friends. He recalled the woman he shot testifying in the trial and her testimony severely impacted him and he is thankful she survived. At the time he felt bad that he had done this to the victim's family." At the hearing, petitioner admitted that the facts of the crime as described in the appellate opinion were true, and even before the presiding commissioner could finish his question, volunteered, "I take responsibility." Petitioner spontaneously expressed "regret" to the Board and described his actions as "stupid and crazy," elaborating: "over the years that I've been incarcerated I've went over this in my mind many, many times. And I feel so bad, so sorry that that happened and that I was at that particular state of mind back then. And sometimes when I think about that, even today when I think about it, it hurts me really—it hurts me deeply that I was at that state of mind back then and I was that violent."
When petitioner was directly asked by the presiding commissioner if he experienced remorse "after the murder," he answered, "Yes, I felt bad. I was sorry about it, but it was too late." Pressed to answer whether he "demonstrate[d] that in any way back then," referring to the time of the life crime in 1973, he conceded "[n]ot then." (Emphasis added.) Then the presiding commissioner moved the time frame to the present, asking petitioner if "[y]ou feel badly about it today" and if "[y]ou feel remorse today," to which petitioner responded "[v]ery much so" and "[y]es, sir." After that, the presiding commissioner responded by cutting off further discussion, with a peremptory: "We'll talk about that later," and turned the questioning over to another commissioner to ask questions about the "life crime." Petitioner was asked nothing more about his remorse, until 50 pages in the transcript later, when he answered affirmatively that he had written a letter to the Siewert family and sent it to the victim services unit in Sacramento before his last parole hearing in 2011.
b. Rules Violations and Criminal History
Respondent contends that the Board "recognized [petitioner's] recurring rules violations" were "some evidence" supporting the denial of parole. But as petitioner points out, by the time of the October 2014 parole hearing, more than seven years had passed without any disciplinary violations. The Board had to concede that neither of the last two violations were "comparatively recent," and yet it characterized them in a way to suggest otherwise. These incidents, though not recent, occurred "within the last decade," and within the "last 20 percent or so of his incarceration;" and petitioner "still experiences conflict with others at regular junctures." (Emphasis added.) The point of the parole inquiry is to assess current dangerousness, and yet the Board disregarded the most recent seven discipline free years based on these meaningless, though literally true, ways of characterizing the passage of time. The "last 20 percent" of petitioner's then 41-year incarceration was seven discipline-free years, which defies description as a "regular juncture." Although the Board complimented petitioner for his lack of any discipline, it simultaneously ignored it. (See Shaputis II, supra, 53 Cal.4th at p. 211 ["Board . . . may not arbitrarily dismiss more recent evidence in favor of older records when assessing the inmate's current dangerousness"].) Attempting to justify the Board's decision, respondent argues that "[e]xcluding the approximate[ly] seven years before the 2014 hearing, the longest duration [petitioner] did not commit a rule violation was five-and-a-half years." This serves only to drive the point home, because as petitioner argues, it was only by "excluding ' the approximate seven years before the 2014 hearing' " that the Board could conclude that petitioner still suffered "from the same personality characteristics that made him dangerous at the time of the commitment offense."
As we recently wrote in Perez, "Prison discipline, 'like any other parole unsuitability factor, "supports a denial of parole only if it is rationally indicative of the inmate's current dangerousness." [Citation.] Not every breach of prison rules provides rational support for a finding of unsuitability. [Citation.]' (In re Hunter (2012) 205 Cal.App.4th 1529, 1543, quoting Shaputis II, supra, 53 Cal.4th at p. 219; see also Lawrence, supra, 44 Cal.4th at p. 1225 ['the mere existence of a regulatory factor establishing unsuitability does not necessarily constitute "some evidence" that the parolee's release unreasonably endangers public safety'].)" (Perez, supra, 7 Cal.App.5th at pp. 94-95.) Here, the Board did not expressly find a nexus between the even-then remote prison discipline and the current dangerousness of this 69-year-old mobility impaired inmate, who the Board's psychologists determined had a "Low risk for violence," and had "demonstrated progressive maturity in his prosocial behavior."
Even if the Board had looked back at petitioner's entire disciplinary history over his 40-plus years of incarceration, there was only one violation involving violence, dating back to 1987 and a fist fight with an inmate. This took place 27 years before the 2014 parole hearing.
Respondent's attempt to forge a link between petitioner's disciplinary history and his criminal history, by noting that the Board described petitioner's "history of pro-criminal behavior" as lengthy, is unpersuasive. Petitioner's one prior felony conviction (for statutory rape) that eventually resulted in his one prior prison sentence, was sustained in 1967, 47 years before his 2014 parole hearing. His juvenile record, which we described above, was even older than that, to the point that Dr. Rokop noted it was becoming hard for petitioner, then 69, to remember. But even if it could be said that petitioner's pro-criminal behavior was lengthy, the Board failed to explain how his commitment offense and his prior record in and of themselves bear a relationship to the critical issue which is "whether [he] remains a threat to public safety." (See Lawrence, supra, 44 Cal.4th at p. 1206.)
We note that as of September 9, 2015, nearly one year after the denial of parole in October 2014, petitioner continued to remain disciplinary free, as reflected in the Administrative Review Decision form denying his request to advance the next parole suitability hearing.
c. No Nexus Between Lack of Insight and an Unreasonable Risk to Public Safety
In Shaputis II, our Supreme Court "expressly recognized that the presence or absence of insight is a significant factor in determining whether there is a 'rational nexus' between the inmate's dangerous past behavior and the threat the inmate currently poses to public safety. [Citations.]" (Shaputis II, supra, 53 Cal.4th at p. 218.) But as our Supreme Court made clear, "lack of insight, like any other parole unsuitability factor, supports a denial of parole only if it is rationally indicative of the inmate's current dangerousness." (Id. at p. 219.) And as this court observed in In re Morganti, supra, 204 Cal.App.4th at p. 923, "lack of insight is not necessarily indicative of present dangerousness, as is 'most obviously the case when an inmate, due to advanced age and infirmity, is no longer capable of being dangerous, no matter how little insight he has into previous criminal behavior.' ([Shaputis II, supra,] at p. 226 (conc. Opn. of Liu, J.)), italics added.)" Respondent argues that the Board's decision was supported by Dr. Rokop's "observations of Coleman's lack of insight and minimization of his actions."
Dr. Rokop noted that petitioner's "thinking in this area" regarding the "psychological factors that may have contributed" to his life crime was "limited and rather concrete." Nonetheless, Dr. Rokop noted that petitioner "expressed willingness to entertain hypotheses about his functioning around the time of his offenses and life crime and appeared motivated to learn from the interview experience and progress in his goals."
The flaw with this argument is that Dr. Rokop concluded that, even to the extent petitioner had reached the limits of insight so many years after the commitment offenses, this was not evidence of current dangerousness, and it did not prevent Dr. Rokop from concluding that petitioner "represents a Low risk for violence." There was also a relationship to petitioner's age which Dr. Rokop stated should be a consideration: petitioner was then 69 years old and having difficulty recalling his motivations as a juvenile. It does not seem at all unrealistic that he could not remember the "finer details of what happened" (Dr. Rokop's phrase) when he was 13 and 14 years old, and "struggled to explain" why he committed juvenile offenses. By the same token, it was unrealistic and arbitrary to penalize petitioner for falling back on "a self-characterization of being a 'very selfish, self-centered kid' " as evidence of a lack of insight suggesting a danger to public safety.
In making this argument on appeal, the attorney general excerpts snippets of old records dating back to 1984 and 1993 to bolster the conclusion that petitioner did not take responsibility for his actions or respect the opinions of others. There is no suggestion in the record that the Board relied on any of these records in denying parole in 2014. Moreover, they are quoted out of context. For example, in a January 1993 handwritten "rebuttal" to a psychological report, petitioner tried to refute that he was "an abuser of alcohol" and should participate in alcoholics and narcotics anonymous program before being release on parole. He eventually did participate in a substance abuse program (per Dr. Rokop's 2014 report), even though Dr. Rokop eventually concluded that it was "questionable" whether alcohol was a historical risk factor, and noted that by 2002, alcohol abuse did not appear in petitioner's evaluation. Another excerpt cited by the attorney general, a handwritten statement to the members of the board dated March 15, 1993, actually begins with a statement of remorse: "I want to start out by saying, I've been incarcerated 20 years, for a crime which I've stated numerous times, I feel great remorse for, and I definitely feel sorry for the harm which I caused the family members of the two victims I shot, causing the fatality of one."
At the hearing, the presiding commissioner supported his conclusion that petitioner was still "prone to" minimization and blaming others by referring to the rules violation report following the altercation with his cellmate. In fact, the then 7-year-old contemporaneous rules violation report, as we have discussed, notes that petitioner accepted responsibility for the incident with the cellmate, which resulted in him receiving a "lower-end" of credit loss. And, at the October 2014 hearing, petitioner stated, "I should have handled it different. I know I should have handled it different."
Thus on this record, because the Board did not rely on facts that connect lack of insight to current dangerousness, the Board's reliance on lack on insight cannot suffice to deny petitioner parole. (See In re Swanigan (2015) 240 Cal.App.4th 1, 16 ["So even assuming Swanigan failed to show insight the question remains: Did the Board rely on any facts that connect that lack of insight to the conclusion that Swanigan is currently dangerous?"].)
d. No Evidence Petitioner Had Lacked Planning for Parole
Although the Board concluded petitioner's release plans were "fundamentally realistic," it cast aspersions on how much energy he had put into the plans. The evidence does not support a so-called "lack of energetic output" by petitioner, and, in any event, none of this is probative of present dangerousness.
Petitioner had a trust fund worth about $128,000 from his deceased sister. This started him out on a financial footing that the presiding commissioner described as "blessed" —an undoubtedly atypical advantage for most life term inmates. He had the commitment of a job and housing from Sister Mary Sean Hodges's PREP program, and the commitment from another transitional housing program that it would work with his parole officer. He had investigated possible bed space in Contra Costa County. Petitioner showed the Board a letter from his 50-year-old son, offering his father a place to live.
When petitioner stated that he had a letter from his son, the presiding commissioner appeared to express surprise. "Your son?" "Yeah, my son. I got a 50-year-old son." "We didn't talk about that. . . . [¶] I just glossed right over that. You've reproduced."
In defense of the Board's decision, respondent contends that petitioner had not used "family resources" in parole planning and that he had only a "superficial relationship" with his adult son. This was not accurate, either. Petitioner's son was then 50; this was his only "family resource[]" given that during petitioner's incarceration his daughter had died as had all of the family who used to visit him (his mother, stepfather, and sister). Inexplicably the Board denigrated a 69-year-old inmate's last existing family tie, which, although attenuated, still involved "a lot" of letters, the son storing petitioner's possessions, sending him money from time to time, and, importantly, offering him a place to live.
The Attorney General contends that the Board "recognized that [petitioner] . . . had an acrimonious relationship with the family member in charge of distributing [petitioner's] trust funds." This did not appear to figure at all in the Board's decision. The relative in question was petitioner's ex-brother-in-law, and there had been a dispute over the approximately $128,000 to which petitioner was entitled. The presiding commissioner described the ex-brother-in-law's letter to the Board as "written in a rather unusual fashion, kind of rambling and almost verging on nonsensical." The presiding commissioner commiserated with petitioner about the dispute over the money and wished him luck in resolving it.
Further, as petitioner argues, the Board was "illogical" in attempting to forge a link between present dangerousness and its generalizations that he "came to prison because, essentially, he'd rather steal and play than work," and he suffered from a "lack of energetic output" that was a "hallmark of [petitioner's] life going back to the time of the commitment offense." Despite his age and physical infirmity, petitioner's current plan if paroled was to do "some kind of janitorial work or whatever I could" while relying on his cane. This was another Catch-22 of petitioner's age: his age and infirmities might limit his prospects for future employment on parole, and yet it was a basis to find him unsuitable for parole. Sister Mary identified petitioner's "marketable skills" in building maintenance, shoe repair, baking and janitorial work, and yet the presiding commissioner attempted to get petitioner to concede that it was "safe to say that you're unlikely to be able to actively [participate] in any of those areas though due to your physical situation. Would you agree?" Petitioner would not agree.
We note that Dr. Rokop identified that petitioner had completed "bakery training and shoe repair vocations" in prison, and had a background in building maintenance.
e. The Board Paid Lip Service to Petitioner's Age
Petitioner's age is a recurring theme throughout Dr. Rokop's report, extending beyond the section entitled "Other Risk Conditions (Elderly [sic] Parole)." Dr. Rokop stated that petitioner "presented as an elderly gentleman who required a cane for mobility secondary to back (spine and lumbar) pain. He "struggled to remember the finer details of what happened [as a juvenile] given his current age." He had "minor cognitive limitations consistent with his age and educational background." Although "his reputation is as a 'kind of loner,' " he "tends to relate well with people in his age group." He "lacks . . . computer skills" that might be useful for post-prison employment, as one might expect for a person in prison since 1975. Because of his age and his use of a cane, his plans for employment on parole as a janitor are "unrealistic" because he may be too old and infirm to work. This makes his "job aspirations . . . unrealistic given his mobility issues." Dr. Rokop concluded that issues relating to petitioner's "advanced age, long- term confinement, and possible physical conditions" all militated in favor of parole. His age and current level of mobility "should be considered protective against risk to reoffend violently." (Emphasis added.)
The presiding commissioner parroted Dr. Rokop's findings to petitioner at the hearing: "The clinician talks about your limited mobility and suggests that your age and your mobility limitations may reduce the likelihood that you would recidivate violently when you're paroled. The clinician suggested that even though at times you might be a little bit irritable and defensive, that this doesn't necessarily mean that you're of higher risk. I mean everyone gets cranky at times, and you've been in prison for a long time, and you're 69 years old. So perhaps you are entitled to be a little bit cranky at times as long as you're not being dangerous. . . . Overall the clinician considered the test instruments that were administered, the HCR-20 and the new version presumably and the information which was received during the interview and opined that you would present a low risk for violence if you were paroled at this time and again repeated that any slight defensiveness on your part and limitations in insight don't necessarily suggest a higher risk in your case. So the clinician is saying you can be a little cranky if you want. That doesn't make you dangerous, all right?" Petitioner asked to respond. "Can I add something to that, sir? Like I said, this hurts me deeply. The criminal mind of doing crime and thinking, that's no longer me no more. That's gone. . . ." When the presiding commissioner asked him what caused it to leave, petitioner replied: "Old, tired, and realized how stupid I've been and how many bad mistakes I've made in my life and bad decisions. And just getting old and growing and maturing made me realize hey, man, I've made a mess of my life, man, and I just want one more chance to make everything right."
But the Board did not meaningfully consider his age and infirmity and the conclusion that petitioner presented a statistically low risk of violence. The Board's statements suggest it used petitioner's age against him by repeatedly commenting that he was not then working. The record shows the following:
Deputy Commissioner Sellwood asked about the fact that petitioner had not worked recently, whereas in the past, the deputy commissioner noted, petitioner had worked in the kitchen, in the dining room, as a porter, yard worker, rec aid, medical aide, and teacher's aide. Deputy Commissioner Sellwood then asked whether petitioner was "medically unassigned or did I miss that you've not worked lately?" Petitioner replied that it was "mostly . . . medically unassigned . . . [¶] [b]ecause I have a lot of pain in my neck and my legs and my back. And once they kind of like put you in a medically unassigned type category, they just don't call you for work." Deputy Commissioner Sellwood interjected, "Right," and petitioner continued, "I'm on a supporting waiting list, and I think what happens is when they get these jobs, they look to see if you have any physical disabilities or something. And if they think your physical disability might—excuse me—conflict with the job, they just won't call you."
Deputy Commissioner Sellwood: "And there's always a new 25-year old."
Petitioner: "Yeah, and they're constantly coming in all the time."
Deputy Commissioner Sellwood: "And they're constantly coming in. Yeah, I understand that."
Later in the hearing, the Presiding Commissioner confirmed with petitioner that he was "not working," and petitioner explained that "they haven't given me a job because of my medical chronos," and that "I have so much pain in my legs and my neck . . . and since I got these medical chronos, they said that the doctor didn't want me to do a job again unless it's a job that doesn't conflict."
Petitioner said he spent his time in the library and "read a lot," and that he had not sought a volunteer position that he might do, although there was no evidence that there was one available.
The commissioners' statements were not simply benign observations that younger, physically able prisoners (the "new 25-year old[s]") get job assignments and older, medically unassigned or disabled prisoners do not. In denying petitioner parole, Presiding Commissioner Labahn cited the fact that petitioner was not working, and used it to draw in virtually every factor suggesting unsuitability for parole. Not working was a character flaw, a hallmark of this petitioner; it was the constant that proved that nothing had changed since petitioner, a then unemployed 28-year old, committed the life offense. Presiding Commissioner Labahn stated: "Mr. Coleman came to prison because essentially, he'd rather steal and play than work. He experienced conflict once he came into the system, and he experienced violence. Mr. Coleman is still not thrilled to work. He still experiences conflict with others at regular junctures. He's still resistant to self-examination . . . . His mindset in these respects is similar to that which he had at the time of the commitment offense. He still represents an unreasonable risk of dangerousness despite his age and despite his mobility impairment. His situation could change depending upon his degree of impairment. Certainly his age is moving in one direction at this point, and therefore, the outcome is ultimately predictable."
We are not certain what it means to say the "outcome is ultimately predictable." The Board had the duty to consider the suitability factors under its own regulations, and one of them was petitioner's age. (Cal. Code Regs., tit. 15, § 2281, subd. (d)(7).) There was no "some evidence" to suggest that petitioner's then current work status had any connection to his current dangerousness, let alone that not working at age 69 in light of his age, disability (and the steady stream of younger prisoners) was indicative of a character flaw that made him currently dangerous.
A similar age-related theme recurred in connection with the Board's dismissiveness of petitioner's parole planning. Despite the commitment letters and plans, it was reflective of a general "lack of energetic output on Mr. Coleman's part, which appears to have been a hallmark of his life going back to the time of the commitment offense as a matter of fact," an implicit reference to the fact that petitioner was not working at the time of the 2014 hearing and was unemployed when he committed the life offense.
Here the Board failed to fairly and meaningfully consider petitioner's suitability as it pertained to his age. As we noted in Stoneroad, supra, 215 Cal.App.4th at page 634, "due to their age, the recidivism rate of lifers is dramatically lower than that of all other state prisoners, indeed infinitesimal. (Weisberg et al., Stanford Criminal Justice Center, Life in Limbo: An Examination of Parole Release for Prisoners Serving Life Sentences with the Possibility of Parole in California (Sept. 2011) 1, 17 (the Stanford Study).)"
We further noted in Stoneroad that the Stanford Study "observes that 'among the 860 murderers paroled by the Board since 1995, only five individuals have returned to jail or returned to the California Department of Corrections and Rehabilitation [] for new felonies since being released, and none of them recidivated for life-term crimes.' This figure represents a lower than one percent recidivism rate, as compared to the state's overall inmate population recommitment rate to state prison for new crimes of 48.7 percent. (Stanford Study, supra, p. 17, fn. omitted.) The study also notes that other studies 'demonstrate that as a general matter, people age out of crime. For most offenses—and in most societies—crime rates rise in the early teenage years, peak during the mid-to-late teens, and subsequently decline dramatically. Not only are most violent crimes committed by persons under 30, but even the criminality that continues after that declines drastically after age 40 and even more so after age 50.' (Stanford Study, supra, p. 17, fn. omitted.)" (Stoneroad, supra, 215 Cal.App.4th at p. 634, fn. 21.) Petitioner is now almost 72.
In sum, we conclude that the Board decision " 'does not reflect due consideration of all relevant statutory and regulatory factors [and] is not supported by a modicum of evidence in the record rationally indicative of current dangerousness, not mere guesswork.' " (Perez, supra, 7 Cal.App.5th at p. 84.). The matter will be remanded to the Board for further proceedings.
II. Issues Related to the Base Term
The Board set a base term (15 years) and adjusted base term (8 years) at the end of the 2014 parole hearing. Petitioner contends that the base term should have been set at the beginning of the hearing; that the adjusted base term was incorrectly set at 8 years, when it should have been perhaps as low as 3 years; and without a properly set base term, the court is "disabled" from utilizing a base term as an indicator of proportionality in considering petitioner's constitutional challenge to the length of his sentence. Petitioner also alleges that "even the flawed adjustment of Coleman's base term set by the Board indicates the constitutional disproportionality of his imprisonment." Petitioner requests that at the least we vacate the adjusted base term, and direct the Board to recalculate his base term in accordance with its regulations.
Background
At the end of the 2014 parole hearing, the presiding commissioner stated: "The base life offense for which Mr. Coleman has been convicted is Murder in the First Degree and Attempted Murder. The term is derived from the matrix located in the California Code of Regulations, title 15 at section 2282, [subdivision] (b). The Panel finds that category 3B is appropriate in that Mr. Coleman had no prior relationship with the victims. And with respect to the victim who died, death appears to have been swift. The Panel applies 15 years for the base offense and notes that this is the middle term. To this middle term of 15 years, the Panel added 96 months for the consecutive term of Second Degree Murder, yielding an adjusted base term of 276 months."
Petitioner does not dispute that the Board "acted within its discretion" in selecting a 15-year base term for first degree murder in accord with the Board's regulations. He contends that the adjustment of 8 years (96 months) was in error for two reasons. First, petitioner was convicted of attempted second degree murder, which at the time of conviction was an indeterminate sentence of not more than 20 years, rather than an indeterminate life offense under the indeterminate sentencing law (ISL). Petitioner argues that when the determinate sentencing law (DSL) became operative in 1977, the term for attempted second degree murder was retroactively converted to a determinate sentence under the DSL, by operation of Penal Code section 1170.2. Petitioner contends applying section 1170.2 had consequences for the enhancement to his base term. Second degree murder carried a midterm of six years. Because this was an attempt crime, the application of Penal Code section 664 (by which attempts are punished at one-half the term of imprisonment for commission of the completed crime) means the sentence for attempted second degree murder would have been three years (one-half the midterm of 6 years). Thus petitioner concludes that the adjusted base term should be 18 years (15 years on the life offense, plus 3 years). Second, petitioner contends that the eight-year enhancement imposed by the Board appears to have been chosen with no articulated rationale, because looking at the Board's own regulations, the suggested base range general guideline for attempted murder under the ISL is now 38 to 60 months (Cal. Code Regs., tit. 15, § 2329). Thus at most the enhancement would be five years.
The base term of 15 years was apparently derived from the matrix for first degree murders committed prior to November 8, 1978. (Cal. Code Regs., tit. 15, § 2282.) Petitioner does not contest the base term or the matrix used to calculate it.
When petitioner was sentenced, second degree murder was punishable by state prison from five years to life. (Former Pen. Code, § 190.) The punishment for attempted second degree murder was not more than 20 years ("if the maximum sentence [for the crime attempted] is life imprisonment . . . the person guilty of such attempt shall be punishable by imprisonment in the state prison for a term of not more than 20 years"). (Former Pen. Code, § 664.)
The 1977 amendment to Penal Code section 190, operative July 1, 1977, changed the punishment for second degree murder to a determinate term of five, six, or seven years in state prison. (See Former Pen. Code, § 190.) And the statute operative July 1, 1977, governing punishment for attempts meant that the sentence for attempted second degree murder was for a term not exceeding "onehalf the term of imprisonment prescribed upon a conviction of the offense so attempted," meaning 30, 36, or 42 months in state prison. (Former Pen. Code, § 664, subd. (1).)
Penal Code section 1170.2, subdivision (a) provides in part that "In the case of any inmate who committed a felony prior to July 1, 1977, who would have been sentenced under Section 1170 if he or she had committed it after July 1, 1977, the Board . . . shall determine what the length of time of imprisonment would have been under Section 1170 without consideration of good-time credit and utilizing the middle term of the offense bearing the longest term of imprisonment of which the prisoner was convicted increased by any enhancements justified by matters found to be true and which were imposed by the court at the time of sentencing for such felony." The statute continues with various enhancements, none of which were mentioned by the parties to this petition.
The Attorney General contends that the Board properly calculated petitioner's terms. Acknowledging that the Board stated once in the 2014 hearing that one of the offenses was second degree murder, rather than attempted murder, the Attorney General argues the rest of the transcript reflects that the Board understood the enhancement was for attempted murder. The Attorney General further argues that the Board is not required by regulation to state a reason for choosing a particular term, citing California Code of Regulations, title 15, section 2286, subdivision (b)(1). In any event, the attorney general contends the term is supported by a Board regulation in effect in 1976 showing that the suggested term range for attempted murder was seven to nine years. (See Cal. Code Regs., tit. 15, § 2225, attached as Exhibit 26 to Return.) Thus, the Attorney General concludes eight years is an appropriate midterm enhancement. But this in effect was the Attorney General attempting to reverse engineer how the Board might have arrived at an eight-year enhancement, because there is nothing in the record to suggest how the panel arrived at this number, much less that the panel was looking to a page from its 1976 regulations.
At the outset of the hearing, the presiding commissioner referred to the offense as "attempted murder" and "664/187."
Respondent is referring to the fact that petitioner acknowledged that the term for the non-life offense is the term that existed at the time the crime occurred, and from this concludes that it is more appropriate to use the 1976 suggested range, rather than the current range. (See Cal. Code Regs., tit. 15, § 2286, subd. (b)(1) ["[t]he term for the nonlife offense shall be the term in effect at the time the prisoner committed the offense"].)
In the return, the Attorney General purported to dispute petitioner's reliance on Penal Code penalties to arrive at a base range guideline enhancement of 38-60 months, but never explains why they are inapplicable. When pressed at oral argument, the Attorney General conceded that respondent was not taking a position as to whether petitioner's enhancement calculation and reliance on Penal Code penalties was correct or not.
In his traverse, petitioner contends that even if his offense of attempted second degree murder had been a life sentence, which it was not, the Board's regulation would have provided for an enhancement of only seven years. (Cal. Code Regs., tit. 15, § 2286, subd. (b)(2) [for "Life Sentence Offenses," the "enhancement . . . to the base term should be seven years"].) Petitioner then clarifies his position: "For nonlife determinate offenses, which is what this offense is, the regulation provides: '[I]n adding enhancements for nonlife offenses, the panel should be guided by Penal Code Section 1170.1. The panel shall select a principal term and subordinate terms based on the nonlife offenses and add the total term to the term established for the life offense. The term for the nonlife offense shall be the term in effect at the time the prisoner committed the offense.' (Cal. Code Regs., tit. 15, § 2286 subd. (b)(1).)" Petitioner reiterates that the term was three years when the DSL was enacted.
Petitioner also disputes the Board's reliance on regulations from 1976, described above and attached as Exhibit 26, which refer to calculation of base or primary terms under the ISL, rather than the calculation of the enhancement to the base term.
Analysis
a. The Setting and Calculation of a Base Term
We first address whether the Board set the enhancement to the base term in error.
Based on the record before us, we simply cannot tell how the Board selected an eight-year enhancement to the 15-year base term; when the Board announced its decision, it gave no reason. In respondent's return, the Attorney General posits that the eight-year figure was appropriate, because regulations from 1976 suggest that the term range for attempted murder was seven to nine years, but that appears to be speculation not supported by the record.
Further, it is not clear whether the 1976 regulation that the Attorney General posits the Board relied on for the panel's eight-year enhancement is applicable, since the regulation consists primarily of a chart pertaining to suggested "base term or base period of confinement," not an enhancement to a base term.
Upon remand of this case for an additional parole suitability hearing, the Board is ordered to recalculate the enhanced base term and make clear how it arrives at the number.
b. Timing of Setting the Base Term
Petitioner contends that the Board violated this court's order in Butler by finding him unsuitable for parole without first calculating his base and adjusted base terms. (See Butler, supra, 236 Cal.App.4th at p. 1229 [recounting a stipulated order providing that Board will set base and adjusted base term's at inmate's initial parole hearing].) We need not address this argument because it is moot. Although the Board set the base term belatedly at the end of the parole hearing after finding him unsuitable, it has now set a term, which it will consider in connection with the parole suitability hearing we are ordering upon remand. (Perez, supra, 7 Cal.App.5th at pp. 101-102.)
c. Constitutional claim
Petitioner asserts that "even the flawed adjustment" of his base term set by the Board "indicates the constitutional disproportionality of his imprisonment." As our Supreme Court stated in In re Dannenberg (2005) 34 Cal.4th 1061, "Of course, even if sentenced to a life-maximum term, no prisoner can be held for a period grossly disproportionate to his or her individual culpability for the commitment offense. Such excessive confinement, we have held, violates the cruel or unusual punishment clause (art. I, § 17) of the California Constitution." (Id. at p. 1096.) However, parole release of inmates sentenced to indeterminate life terms is premised upon the inmate being deemed suitable for release. (Id. at pp. 1081-1083; Butler, supra, 236 Cal.App.4th at pp. 1234-1235.) And this court has emphasized that the base and adjusted base terms represent only "an approximation of the punishment the Board deems proportionate to the particular prisoner's offense," but neither "necessarily represent[s] the maximum punishment that may constitutionally be imposed on a prisoner." (Butler, supra, at pp. 1235, 1243.)
Although there is a point at which suitability may be trumped by the length of sentence, in this petition we are not presented with that argument in any coherent way. The claim is conclusory and not developed adequately, and we do not consider it.
III. Marsy's Law
Petitioner contends that the Board's decision to defer his parole suitability hearing for three years due to the application of Penal Code section 3041.5, known as Marsy's Law, constitutes an ex post facto violation as applied to him, since at the time he committed the life offense parole hearings were conducted annually. Petitioner makes this argument notwithstanding our Supreme Court's decision in In re Vicks (2013) 56 Cal.4th 274, 305 (Vicks), that Marsy's Law on its face was not an ex post facto law, nor was it an ex post facto law as applied to the petitioner in that case.
In Vicks, our Supreme Court considered whether Marsy's law violated the ex post facto clause by creating a " 'significant risk of prolonging [petitioner's] incarceration.' " (Vicks, supra, 56 Cal.4th at p. 299, quoting Garner v. Jones (2000) 529 U.S. 244, 251 (Garner).) "Therefore, we focus on whether the changes in the hearing schedule effected by Marsy's Law create a significant risk that there will be a period between parole reviews when the elimination of a hearing that would have been required under the former law creates a significant risk of prolonging incarceration." (Vicks, supra, 56 Cal.4th at p. 300.) The court in Vicks concluded that there was nothing " 'inherent in the framework' " of the parole system as amended by Marsy's Law that created significant risk of prolonging incarceration," and the law survived a facial ex post facto clause challenge. (Id. at p. 301, quoting Garner, supra, 529 U.S. at p. 251.) Vicks's challenge to the law as applied also failed, because he did not show with evidence how the practical application of the law to him created a significant risk of prolonging his incarceration. (Vicks at p. 312.)
Describing the "Administrative Review Process" by which the Board annually reviews three-year denials and processes a petition to advance a hearing, petitioner contends that it is impossible for him to receive a parole suitability hearing sooner than 18 months, which presents a significant risk of prolonging his incarceration because he is "sufficiently close to a determination of parole suitability as to preclude the Board from finding it unreasonable to expect a finding of parole suitability in a year." Petitioner also contends that while the other provision for advancement under Marsy's Law, the "Petition to Advance Process" could theoretically permit parole consideration within one year, as a practical matter that is not likely because an applicant must show a change in circumstances or new information that establishes a reasonable likelihood of a grant in parole, which, if shown, results in the setting a of "placeholder on calendar 9 months out." Thus, according to petitioner, a parole applicant would have to file a Petition to Advance three months after his parole denial to obtain a new placeholder hearing date one year from the last hearing, making the potential for showing a change in circumstances or new information in that short time period "practically nil."
The Attorney General disputes petitioner's claims, noting that nothing precludes the Board from advancing parole consideration hearings earlier than the timeframes reflected in the administrative flowcharts cited by petitioner, and relying on Vicks, supra, 56 Cal.4th at pages 302, 308 ("Marsy's Law does not constrain the Board's authority to set a parole date at whatever point in time the prisoner is suitable for parole").
We need not reach this issue because as a result of our disposition, petitioner will receive further parole consideration immediately.
In his traverse, petitioner contends that the judgment imposed was unlawful because the attempted murder sentence was consecutive, not concurrent, to his murder sentence; and the court wrongly imposed a firearm enhancement on the murder sentence. Noting the "procedural irregularity in Coleman's bringing to the attention of this Court his unlawful sentence in this pleading," petitioner requested the Court to "grant respondent leave to file a supplemental return that addresses [petitioner's] claim of entitlement to modification of the judgment to conform his sentence to law." We decline to do so, without prejudice to petitioner raising the issue in a separate proceeding if necessary. --------
DISPOSITION
The petition for writ of habeas corpus is granted and the decision of the Board of Parole Hearings is hereby vacated. The matter is remanded to the Board to conduct another parole consideration hearing as set forth herein, consistent with due process of law and this decision. (See Prather, supra, 50 Cal.4th at p. 244.) If the Board seeks to rely on confidential information to which petitioner has had no access, it must be mindful of the potential due process issues attendant to its use. (See Ochoa, supra, 199 Cal.App.4th 1274.)
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.