Opinion
G039631.
1-29-2009
In re HARVEY DAVIS on Habeas Corpus.
Rich Pfeiffer, under appointment by the Court of Appeal, for Petitioner. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Jennifer A. Neill and Amanda Lloyd, Deputy Attorneys General, for Respondent.
Not to be Published in Official Reports
Twice, the Board of Parole Hearings (the Board) found petitioner Harvey Davis suitable for parole and set parole dates. The Governor reversed each decision. Petitioner now petitions for a writ of habeas corpus directing respondent S.R. Moore, acting warden of Deuel Vocational Institution, to release him. Because no evidence supports the Governors decision to reverse the Boards parole release order, we grant the petition and reinstate the order.
FACTS
These undisputed facts are derived from petitioners testimony at his 2006 Board hearing, his prison mental health evaluations, and court documents.
Petitioner and the Offense
Petitioner was born in 1954 and is the adopted child of prominent professional musicians. His father was the Julliard-educated first-chair violin for the New York Philharmonic; his mother played viola with the American Symphony Orchestra. He had a normal social development with no history of abuse, criminal behavior, or psychological problems. He excelled in school, skipped several grades, and undertook an accelerated premed program in college. Petitioner felt burned out after two years in college and, with his parents blessing, dropped out and moved to a kibbutz in Israel in 1972. He enjoyed living there and became an Israeli citizen.
The Israeli army drafted petitioner in 1973. He was stationed in the Golan Heights when the Yom Kippur War started between Israel and Syria. He had several traumatic experiences during the war, including being evacuated by helicopter from a battlefield, nearly being killed by shrapnel, and watching a close friend die.
Petitioner was further traumatized by postwar military atrocities involving children. His unit demolished a house purportedly containing terrorists; inside they found no sign of terrorist activity. They instead found they had killed seven unarmed adults and 13 children. A month or two later, his unit participated in a shootout with terrorists who had taken a school hostage — 35 to 40 schoolchildren were killed. Petitioner may have shot several children while shooting at the terrorists. He helped carry out the wounded children, becoming covered in their blood.
After being discharged from the army, petitioner later had intense nightmares. He found work on an oil rig, which distracted him and supplied an adrenaline rush. He staved off sleep with cocaine and methamphetamine. His marriage ended in 1980 when he returned from an oil rig to find his wife having an affair with his best friend.
Petitioner began dating a family friend. She had four children including a daughter, Megan, from a previous marriage. Petitioner continued working on oil rigs to help support them. He also continued using drugs, which led to delusions.
The couple had a daughter, Heather, in July 1982. Petitioner abstained from drugs around Heathers birth, but his drug use quickly escalated. Petitioner became increasingly paranoid and delusional, keeping track of cars license plates, standing watch at night with a shotgun, and once locking himself in a room for three days. He also started hearing the voices of dead children from the war telling him they would get him, he would burn in Hell for what he had done.
One night when Heather was about 10 weeks old, he heard her threaten him this way. He picked her up, shook her until she was quiet, put her back to bed, and fell asleep. Heather was found dead the next morning. She died from injuries consistent with whiplash shaking syndrome. Healing fractures suggested other physical abuse had occurred in the preceding 3 to 4 weeks.
The next day, petitioner became suicidal and placed a shotgun in his mouth. He was hospitalized and prescribed psychotropic medication, which he took for several months.
Petitioner pleaded guilty in 1983 to one count of second degree murder, receiving a sentence of 15 years to life in state prison. (Pen. Code, § 187.) He also pleaded guilty to one count of inflicting injury to a child, arising from a 1982 incident in which he forcibly removed Megan from a car seat. (§ 273, subd. (d).)
All further statutory references are to the Penal Code.
Petitioners Treatment Efforts and the Parole Decisions
Once in custody, petitioner participated in extensive treatment for his depression, post-traumatic stress disorder, and substance abuse. He worked several highly-skilled prison jobs, completed college courses, earned several laudatory commendations, and received no serious prison disciplinary reports. He married Heathers mother while in prison; the two are still married. The couple conceived another child during a conjugal visit. He had regular visits with his wife and children, including Megan and her own daughter.
Petitioner consistently accepted responsibility for his crime and showed significant remorse. His 1991 mental health evaluation stated petitioner "is clearly pained and remorseful over his actions," "he fully acknowledges that he was responsible," and he "acknowledged that there was still pain over his role in his daughters death." His 1999 evaluation stated he "shows immense guilt about the victim and her sister." His 2004 evaluation stated he "freely admits his guilt," "remains very remorseful for what he has done," and "does not use his history as an excuse for this crime." His 2005 evaluation stated he "clearly accepts responsibility for the offense that led to the death of his daughter, Heather. He remains deeply remorseful for his actions." It concluded, "His remorse appears genuine."
Prison psychologists attributed petitioners role in Heathers death to his drug use and underlying post-traumatic stress disorder. His 1991 mental health evaluation and an attached report stated, "His Israeli experiences are tragically transparent, and there is no question that he suffered from post-traumatic stress disorder. His intense involvement with both cocaine and methamphetamine can be seen as an effort to self-medicate the severe wounds that were inflicted to his psyche." It continued, "It appears highly likely that the committing offense was directly related to impaired judgment associated with substance abuse," as he "was effectively within the grips of a drug induced delirium during the commission of his crime." The 1996 evaluation stated "the horrors of war proved too much and he began to experiment with drugs," which "led to the instant offense." The 1999 evaluation stated he was "traumatized by [his military] experiences, eventually, ending in a drug-induced psychosis and tragic displacement of pathological hostility on the victim and the victims sister."
Petitioner treated these problems. The 1991 evaluation stated he "has done as much work as one could reasonably expect given the resources that were available." The 1996 evaluation stated he "reflects a significant amount of insight which is the result of much introspection on his part." The 1999 evaluation noted he has an "almost impeccable adjustment record of 16 years." The 2004 evaluation noted he "served over 22 years in prison and never received any disciplinary reports, which in itself is fairly remarkable. He continues to actively program within the prison system, and is continuing to upgrade his skills and education both to prepare for his release if he is paroled, and in a diligent effort toward self-improvement." The 2005 evaluation noted, "Since his incarceration, the inmate has shown concerted effort to address the issues that led to [the psychological] factors" that led to his crime. He "has confronted and worked through parental abandonment issues, the horrors associated with his war experiences, his divorce . . . and his drug use." It continued, "He no longer exhibits symptoms indicative of PTSD," "has grown emotionally and spiritually as a result of hard work and a personal commitment to face his demons," and "is not the same person he was when he entered [prison] 22 years ago." The 2006 evaluation concluded the crime "appears to be an isolated incidence in regards to his then current state of mental health. [He] has since remediated those problems and there no longer appears to be any current issues." To the contrary, petitioner "has almost every possible factor listed for suggesting he might have a lower risk of future dangerousness or possibility of recidivism."
The Board first ordered petitioners release on parole in November 2005. The record contains no information about the order, other than the Governor reversed it.
The Board again ordered petitioners release in November 2006, finding he would not pose an unreasonable danger if released. It noted petitioner "does accept full responsibility and does not diminish his responsibility or significance of what he did. [H]e has come to terms, understand[s] the causative factors and the consequences of this crime." Petitioner had "immersed [himself] in various self-help [he has] what we call internalized a lot of these lessons and applied it to that isolated moment in life when things got very crazy and two human beings were horribly hurt . . . ." The Board cited the "consistent pattern of favorable psychological reports" on petitioner, and deemed the crime "an anomaly" caused by "the significant stress in his life and the prisoner himself has acknowledged that the elements of that stress, again, he has been able to work this out through therapy, and again, has come to terms with this, and, again, has learned to deal with it."
The Governor again reversed the Boards decision. He acknowledged petitioner "received positive evaluations from various correctional and mental health professionals over the years, and he maintains seemingly solid relationships with supportive family and friends. He also made plans upon his release to live with his wife in Monterey County . . . and to work as a maintenance worker."
Despite petitioners conceded progress, the Governor found "the gravity of the murder [petitioner] committed presently outweighs any positive factors tending to support his parole." He found the murder was "especially atrocious because . . . he was out on bail for having perpetrated violence against another young child," Megan. Also, Heather was "a very vulnerable victim" and petitioner showed "an exceptionally callous disregard for [her] suffering and life" by inflicting severe injuries.
The Governor also questioned whether petitioner was truly remorseful. He noted the autopsy report indicated Heather had injuries that were approximately 3 to 4 weeks old, but petitioner stated at his 2006 hearing that he had abused her "`probably within a short period of time . . . maybe a couple of days, maybe." Finally, the Governor found petitioners past psychological issues did not mitigate the murders heinousness.
DISCUSSION
The Parole Decision
The Board "shall normally set a parole release date" one year prior to a life prisoners minimum eligible parole release date. (§ 3041, subd. (a).) It must set a release date "unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual." (§ 3041, subd. (b).)
Regulations govern the Boards determination whether a prisoner is suitable for release on parole. "Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison." (Cal. Code Regs., tit. 15, § 2402, subd. (a).)
The regulations set forth long lists of circumstances tending to show suitability or unsuitability for parole. Circumstances tending to show a prisoners suitability for parole are: (1) the lack of a juvenile criminal record; (2) a stable social history; (3) signs of remorse; (4) the suffering of significant stress at the time of the offense; (5) the suffering from battered woman syndrome at the time of the offense; (6) the lack of any other criminal history; (7) reduced probability of recidivism due to age; (8) a realistic parole plan or marketable skills; and (9) good behavior in prison. (Cal. Code Regs., tit. 15, § 2402, subd. (d).) Circumstances tending to show a prisoners unsuitability for parole are: (1) a commitment offense committed "in an especially heinous, atrocious or cruel manner"; (2) a previous record of violence; (3) an unstable social history; (4) previous sadistic sexual offenses; (5) "a lengthy history of severe mental problems"; and (6) "serious misconduct in prison or jail." (Cal. Code Regs., tit. 15, § 2402, subd. (c).)
The California Supreme Court recently held these circumstances do not supplant the need to assess whether the prisoners release threatens public safety. (In re Lawrence (2008) 44 Cal.4th 1181, 1205 (Lawrence).) "[T]he fundamental consideration in parole decisions is public safety, . . . the core determination of `public safety . . . involves an assessment of an inmates current dangerousness." (Ibid.) "[C]urrent dangerousness is the fundamental and overriding [parole] question" (id. at p. 1213), and so "current dangerousness (rather than the mere presence of a statutory unsuitability factor) is the focus of the parole decision." (Id. at p. 1210.)
The Governor has 30 days to review the Boards parole order and may affirm, modify, or reverse it. (Cal. Const., art. V, § 8, subd. (b).) The Governor must act "on the basis of the same factors which the parole authority is required to consider." (Ibid; accord § 3041.2.) "[T]he Governor undertakes an independent, de novo review of the inmates suitability for parole. [Citation.] Thus, the Governor has discretion to be `more stringent or cautious in determining whether a defendant poses an unreasonable risk to public safety. [Citation.] `[T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor." (Lawrence, supra, 44 Cal.4th at p. 1204.)
Still, the merits of the Governors decision are subject to judicial review. (Lawrence, supra, 44 Cal.4th at p. 1204.) "[W]hen a court reviews a decision of . . . the Governor, the relevant inquiry is whether some evidence supports the decision of . . . the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings." (Id. at p. 1212.) The Governors findings on the various parole circumstances "establish unsuitability if, and only if, those circumstances are probative to the determination that a prisoner remains a danger to the public." (Ibid.) The Governor must provide "reasoning establishing a rational nexus between [the] factors and the necessary basis for the ultimate decision — the determination of current dangerousness." (Id. at p. 1210.)
Thus, the Governor may not reverse a parole order by simply pointing to any one unsuitability circumstance — such as the commitment offenses heinousness. "[I]t is now apparent that the aggravated nature of the commitment offense does not, in every case, provide some evidence that the inmate remains a current threat to public safety." (Lawrence, supra, 44 Cal.4th at p. 1218.) "[T]he Legislature considered the passage of time — and the attendant changes in a prisoners maturity, understanding, and mental state — to be highly probative to the determination of current dangerousness." (Id. at pp. 1219-1220.) "At some point . . . when there is affirmative evidence, based upon the prisoners subsequent behavior and current mental state, that the prisoner, if released, would not currently be dangerous, his or her past offense may no longer realistically constitute a reliable or accurate indicator of the prisoners current dangerousness." (Id. at p. 1219.) Thus, "[t]he relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense." (Id. at p. 1221.) "[T]he Governor may base a denial-of-parole decision upon the circumstances of the offense . . ., but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety." (Ibid.)
No Evidence Shows Petitioner Poses a Current Danger to Public Safety
The Governor wrongly reversed the Boards decision by relying upon the commitment offenses heinousness, without assessing petitioners current dangerousness. He noted "the gravity of the murder," which he found "especially atrocious" because petitioner had been released on bail for abusing Megan when he shook Heather, Heathers injuries suggested prior abuse, her injuries were extensive, and she was "a very vulnerable victim." But the Governor does not even purport to explain how these decades-old circumstances affect petitioners current risk to public safety. This shortcoming is not entirely surprising. The Governor acted before the court decided Lawrence, which resolved a split in authority over whether parole decisions must be supported by some evidence of current dangerousness or merely some evidence of any unsuitability factor — typically, an especially heinous commitment offense. (Lawrence, supra, 44 Cal.4th at pp. 1214-1221.) Still, nothing in the Governors decision or the record suggests the circumstances of the commitment offense "continue to be predictive of current dangerousness many years after commission of the offense." (Id. at p. 1221.)
To the contrary, the record overwhelmingly implies the commitment offense was an "anomaly" and an "isolated incidence" not indicative of current danger. All the evidence suggests petitioner has vanquished the drug use and post-traumatic stress disorder that led to Heathers death. He "has confronted and worked through" his psychological issues, "no longer exhibits symptoms indicative of PTSD," "has grown emotionally and spiritually as a result of hard work and a personal commitment to face his demons," and "is not the same person that he was when he entered [prison] 22 years ago." He "remediated" his psychological problems "and there no longer appears to be any current issues." Indeed, he "has almost every possible factor listed for suggesting he might have a lower risk of future dangerousness or possibility of recidivism." Here, "there is affirmative evidence, based upon [petitioners] subsequent behavior and current mental state, that [he], if released, would not currently be dangerous," and so "his . . . past offense may no longer realistically constitute a reliable or accurate indicator of the prisoners current dangerousness." (Lawrence, supra, 44 Cal.4th at p. 1219.)
The Attorney General concedes the circumstances of the commitment offense alone do not justify the reversal. It states the Governor acted "consistent[ly] with . . . controlling law at the time of [his] decision," and notes the intervening decision in Lawrence. It tries to shift the analysis away from the commitment offense, asserting the Governor "also considered other recent negative factors. . . . As reflected in Lawrence, consideration of these additional factors . . . is proper even if they are not directly mentioned as a basis for the denial."
The Attorney General relies heavily upon petitioners purported lack of remorse. It asserts the "[m]ost important . . . and most relevant [factors] to [petitioners] current risk to public safety are the Governors concerns that [petitioner] has failed to take full responsibility for his crime or express adequate remorse." It notes Heathers "injuries were up to three or four weeks old, [but] [petitioner] told the Board he remembered three incidents of abuse that were `within a short period of time . . . maybe a couple of days, maybe."
Petitioners statement to the Board does not show any lack of remorse. There is no meaningful discrepancy between "a couple days" and "up to three or four weeks," especially after 24 years. Moreover, petitioner acknowledged to the Board he had abused Heather before her death, though he could not remember the details. When asked if there were times before Heathers death when he had "lost [his] patience" with her, he conceded "there had to have been because she was not just shaken, but she was abused. [¶] . . . [¶] And I couldnt remember every time." His lack of perfect recall is unremarkable, given his drug-addled delusions at the time of the abuse and the passage of two decades. A snippet of testimony stripped of context is not even a "`"modicum of evidence"" justifying a parole order reversal. (Lawrence, supra, 44 Cal.4th at p. 1205.) The "`some evidence" standard of review "is unquestionably deferential, but certainly it is not toothless." (Id. at p. 1210.)
Even if petitioners testimony were some evidence of a lack of remorse, it still is not evidence of petitioners current dangerousness. An unsuitability circumstance like lack of remorse warrants a parole denial "if, and only if, [it] [is] probative to the determination that a prisoner remains a danger to the public." (Lawrence, supra, 44 Cal.4th at p. 1212.) Thus, the Governor must provide "reasoning establishing a rational nexus between [the lack of remorse] and the necessary basis for the ultimate decision — the determination of current dangerousness." (Id. at p. 1210.) He cannot rely upon the purported lack of remorse or any other facts to deny parole "absent articulation of a rational nexus between those facts and current dangerousness." (Id. at p. 1227.) Neither the Governor nor the Attorney General offers any such nexus.
We need not address petitioners other claims, given our holding.
We decline the Attorney Generals request to remand the matter to the Governor to afford him a post-Lawrence opportunity to identify some evidence of current dangerousness. The California Supreme Court did not do so in Lawrence, supra, 44 Cal.4th 1181, but simply affirmed the Court of Appeals decision vacating the Governors parole denial and reinstating the Boards order granting parole. Also, "[o]ur review indicates that the record does not contain some evidence to support the Governors decision and further consideration by the Governor will not change this fact." (In re Vasquez (Jan. 1, 2009, D051015) ___ Cal.App.4th ___ [p. 9].)
DISPOSITION
The petition for a writ of habeas corpus is granted. The Governors decision reversing the Boards grant of parole to petitioner is vacated and the Boards parole release order is reinstated. The Board is directed to release petitioner forthwith pursuant to the conditions set forth in that order. In the interests of justice, this opinion shall be final five days after it is issued. (Cal. Rules of Court, rule 8.264(b)(3).)
WE CONCUR:
SILLS, P. J.
RYLAARSDAM, J.