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In re Dubov

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 22, 2020
B297731 (Cal. Ct. App. Jan. 22, 2020)

Opinion

B297731

01-22-2020

In re MICHAEL DUBOV, on Habeas Corpus.

Charles F. Carbone and Rebecca N. Rabkin, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Phillip J. Lindsay, Assistant Attorney General, Amanda J. Murray and Charles Chung, Deputy Attorneys General, for Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BH012342) ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. William C. Ryan, Judge. Petition denied. Charles F. Carbone and Rebecca N. Rabkin, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Phillip J. Lindsay, Assistant Attorney General, Amanda J. Murray and Charles Chung, Deputy Attorneys General, for Respondent.

INTRODUCTION

In December 1993, inmate Michael Lawrence Dubov strangled his ex-girlfriend to death. He was convicted of first degree murder and sentenced to an indeterminate term of 25 years to life. (People v. Dubov (Dec. 3, 1997, B100481) [nonpub. opn.].) In October 2018, the California Board of Parole found Dubov eligible for parole. In February 2019, Governor Gavin Newsom reversed the Board's decision. Dubov filed a petition for writ of habeas corpus in the Los Angeles County Superior Court, which denied the petition. Dubov then filed a petition for writ of habeas corpus in this court. We find that some evidence supports the Governor's decision, and therefore deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

The following information was provided at the hearing before a panel of the Board of Parole on October 10, 2018.

A. The murder

Dubov, the son of dentists who were older parents, graduated from high school in Southern California. Dubov had no major problems at home or in school growing up. He enlisted as an Army reservist in 1989, trained as a dental assistant while in the Army, and was honorably discharged. The year of discharge is not clear in the record.

Dubov met his victim, Mika Bissett, in 1991 on his 20th birthday; she was an 18-year-old high-school senior. Dubov blamed Bissett for introducing him to methamphetamine. After dating for several months Dubov and Bissett moved in together, which "brought out my true nature of - of who I was, and I was a very controlling person. Very power-orientated. [Arguments with Bissett] led to me saying, it's my way or the highway." Dubov said he viewed love as "obedience, duty, tradition." He was attracted to Bissett for her "submissiveness"; "I viewed her as an extension of me."

Six months into the relationship, Dubov began getting abusive toward Bissett, starting with verbal threats and harsh criticism. Dubov recalled physically abusing Bissett twice—once by running over her foot or feet with a car, and once by "grabbing her by the neck and moving her out of the way." Later, when questioned regarding information from a witness who knew Dubov and Bissett, Dubov admitted that he had also slapped Bissett in the face.

Meanwhile, Bissett was going to college and working as a waitress. Dubov was using methamphetamine because "[i]t gave me energy to even just function." He needed drugs to function day-to-day. Dubov said he cheated in the relationship while he and Bissett were living together.

Near the end of their dating relationship, Dubov and Bissett got into an argument in which Dubov intentionally ran over Bissett's foot or feet with a car. They were arguing while Bissett was standing outside the car and Dubov was in the driver's seat. He backed up, and the car ran over either one or both of Bissett's feet (the record is not clear). The parole board commissioner asked Dubov if he did it on purpose, and Dubov responded, "I did." The commissioner asked if Bissett screamed, and Dubov stated, "She did not say anything. She was incredibly defiant." The commissioner asked if Bissett fell down, and Dubov responded, "I didn't even look." Bissett went to the hospital as a result, but the record does not divulge the extent of her injuries.

The same day, Dubov went to Bissett's mother's house to retrieve some of his things. He broke into the house, took his belongings, and poured nail polish on the carpet and some shoes. The police were called regarding both the car incident and the break-in, but apparently no charges were filed. Dubov said he did both of these things out of anger, "a sense of, I'll show you," and "you're not going to control me."

Dubov and Bissett were evicted from their apartment, and around January or February of 1993 Dubov's parents allowed him to move back home on two conditions: that he stop seeing Bissett, and that he take drug tests to show he had stopped using drugs. Dubov and Bissett stopped dating. Dubov said he thought that Bissett dropped out of college to avoid seeing him there. They lost all contact from February to August.

At some point, Dubov's father had him drug tested, and the test was positive for methamphetamine. Dubov was arrested in October 1993 for stealing CDs from the store where he worked; he said that at the time, he was "heavily addicted to methamphetamine." He said he stole the CDs because "they were there, and I wanted them, and I couldn't afford them." Dubov's father bailed him out, and Dubov was given summary probation.

In October, Bissett went to Dubov's house and said she wanted to talk to him about her live-in boyfriend. Dubov said he saw "a great opportunity for me to get [her] back." They both "did a line of speed," although Dubov said he had not used drugs for four or five months. Dubov went and stayed in Bissett's apartment for a day and a half, which caused problems with Bissett's boyfriend. When Dubov went back home, his father "immediately said, find another place to live" because "I broke the curfew, I didn't call, I was gone for a day and a half, and I was with Mika." Dubov told Bissett that he had been kicked out and asked if he could come live with her; she said yes. Bissett's boyfriend was "extremely aggravated" about it, and he moved out shortly thereafter.

Thus, Dubov began living in Bissett's apartment in October 1993. Bissett was going to school full-time. They did not have a dating relationship at the time, although Dubov wanted to get back together. Bissett rebuffed Dubov's advances, but he continued to believe that she would eventually take him back. Dubov said that from his perspective, he was attempting to establish a relationship with Bissett. But after Bissett said she wanted to just be friends, Dubov went out with other women in an attempt to make Bissett jealous. Around Thanksgiving, Dubov asked his parents if he could come back to their house, and they said they wanted to have nothing to do with him.

On December 11 or 12, 1993, Bissett brought home another man, Eric. Dubov was asleep in the living room, and Eric and Bissett went straight to her bedroom. Dubov woke up and "[s]tarted fuming" and "ruminating [about] what's going on in there, are they having sex." Dubov said he was on methamphetamine at the time; he had used methamphetamine daily since moving in with Bissett. Dubov "busted down the door and said, how can you do this with me in the other room? I was shocked that she would have a relationship when she was supposed to be with me, which - when I look at it now, is so completely irrational." Dubov told Eric to leave "or we're going to have to call 911." Bissett got between them, told Eric that she would calm Dubov down, and asked Eric to leave.

After Eric left, Bissett said to Dubov, "[W]hat are you doing? You have no right. I want you out of the house." She told him to find another place to live, and said, "I'm done." When Bissett told Dubov to move out, he "realized she had all the control." He said, "[W]e're supposed to have a relationship, what're you doing[?]" It was about one o'clock in the morning, and Bissett went to her bedroom and closed the door. Dubov was "incredibly mad," and he "sat in the living room, getting madder." He said he was jealous, he felt worthless, and he was resentful.

The next morning, Dubov and Bissett started talking again, which escalated into arguing. Dubov "was just yelling. Saying this is how it's going to be." Bissett "wasn't having any of it." Around 11 a.m. or 12 p.m., Bissett kicked Dubov out of the apartment. When asked why Bissett kicked him out, Dubov said, "She was just tired of the argument," and "I wasn't letting it go, she got tired of it."

Dubov did not have a key to get back in, so he stayed outside the apartment and argued with Bissett through the kitchen window. Dubov estimated that he stayed outside the apartment for about four hours. Dubov said he did not remember seeing anyone. However, he also said he talked to a maintenance person "about, hey can I get in to get my stuff, and I did say, I'm going to have to kill this bitch." The parole board commissioner noted that this information was in "other transcripts," which are not in the record on appeal.

Dubov said he was "hellbent on . . . winning this argument" with Bissett because he "was an entitled person," and wanted to show her that "you don't treat me that way." He threatened to tell Bissett's school and mother that Bissett was a drug addict; Bissett was a student at Loyola Marymount, which had a strict anti-drug policy. In response to the threat, Bissett "acquiesced" by letting him back in, but "I don't think she wanted to." Once he was back in, "now it's my time to lash out. It's my turn to . . . set the rules, because Mika was setting all of them." Dubov said he has "control issues and power issues." He told Bissett he would leave, but threatened to take items like dishes and rugs, "a lot of the things that were in that apartment we bought together during our relationship." "[A]t the end of that - that argument, it was - she went to her room, and I went to the living room."

Dubov did not sleep; he did more methamphetamine. He was "ruminating on how - how can I get control back, why - why do I feel so helpless? . . . . I started blaming Mika, this is her fault, she brought me here, you know, I screwed up with my family because of her, it was all completely blaming someone else for my issues." "And I decided it's time to take her life. She did this to me." He later clarified that he "made th[e] decision" to kill Bissett earlier in the day, when he made the statement to the maintenance person. He did not kill Bissett immediately when she let him back in, because it "[w]asn't a comfortable opportunity for me."

At about six o'clock the next morning, Dubov and Bissett passed each other in the hallway of the apartment and "[s]he pushed me. And it was automatic arguing, you're not going to take this, you're not going to do that, and that was the last thing she ever said because I took her by the throat and I put her down, and I strangled the life out of her." Dubov said that he grabbed Bissett's neck with one hand, and "turned her and threw her down." Dubov said, "I was dead-set on - on strangling the life out of her." He had "one hand and my weight" pressing on her throat; Dubov said, "I looked right through her." Bissett resisted, but she was not able to speak. Dubov said, "When I look back at it now, she was trying to - when she was resisting, she was just trying to say hey, stop." "She was trying to use compassion. She was trying to use love. She touched my hand." He added, "I also realize that that would be how she was. She would've tried to tap into my heart, that was not there."

Dubov agreed that it probably took about two and a half minutes to kill Bissett. Then, "she's dead. . . . I picked her up and threw her on - on her bed. She fell on her left hand side." Dubov went into the living room and "[d]id some more meth." "[H]ours later, I went in to check on her"; "[s]he was dead" and her skin was cold. Dubov's testimony conflicted as to whether he knew Bissett was dead right after he strangled her, or whether he did not realize it until he checked on her later. The autopsy revealed that Bissett was approximately 18 weeks pregnant at the time of her death. Dubov said he did not know about the pregnancy.

Dubov stated that he "never took an opportunity to do the right thing." When Bissett's mother called, he told her that Bissett had gone up north to see a friend. Bissett's body remained in the apartment for two days; Dubov covered her head because "I didn't want to look at the body." Then, "[s]he was starting to decompose and smell. So, it was - it was the time to" get rid of the body. Dubov "put her in an army duffel bag," but "only half her body could fit into the duffel bag," so "I wrapped the other - the - the leg part in - in a blanket. Uh, put her in a trashcan, and moved her to the garage."

Dubov took Bissett's body to a remote location he was familiar with and dumped it in some shrubbery. The body apparently was found with no shirt, and when the parole board commissioner asked why, Dubov explained, "I tore it off" because "her shirt was standing out in the shrubbery." He also pulled her body out of the duffel bag "cause I didn't want my - my duffel bag in the crime scene," because "[i]t had my name on it."

The parole board did not ask about Dubov's actions thereafter or his arrest. However, a June 2016 comprehensive risk assessment (CRA) stated that when Bissett's mother called again, worried that she had not heard from Bissett, Dubov discouraged her from filing a missing person report by telling her that Bissett would be back soon. He then called Bissett's mother later, stating that he had heard from Bissett and "everything was okay." He also called Eric, "and, pretending to be Mika, said that she was doing fine." On December 29, police questioned Dubov. After initially denying any involvement in Bissett's disappearance, Dubov failed a polygraph test. Dubov finally admitted that he had strangled Bissett while under the influence of methamphetamine.

At the parole hearing, Dubov said that he "did the most despicable things in the world and I - I dragged on hope, and - and I created so much pain when it came to lying and giving false statements, especially to Mika's mom." In the 2016 CRA, when asked about the crime, Dubov said he felt "horrible, responsible, accountable for the rest of my life." He also stated, "I think every single lie took a toll on me. It wasn't easy at all. That's why it was such a big relief when it was all done."

When asked at the parole hearing about "causative factors" that led to the murder, Dubov said he had anger and control issues, power issues, fear of failure, and "entitlement and grandiosity." He said he needed external validation, and "since I didn't get it, I destabilized." He also said, "[W]hen I couldn't get [validation] from her, I couldn't self-soothe anymore." He added, "Instead of having an internal focus, I had an external one. When that ran out, I destabilized." He also mentioned "causative factors of my youth," when he "started having my defects of character." He said that as a child he was afraid of disappointing his family, which is "an interesting thing to have when you're six.

The commissioner asked Dubov about his use of methamphetamine over the days leading up to the murder. Dubov replied that his drug use was "a contributing" factor, "[n]ot a causative one." Dubov also made clear, "I didn't lose control during the murder," because "in the instant, I actually - that was gaining control. As sick as that sounds. For me."

Dubov's attorney asked Dubov why it took him "as long as it - it did to finally gain . . . appropriate insight into your acceptance of responsibility." Dubov said it had been "an evolution and a progression," and he has to "get away from shame. Shame is a - a toxic thing." He said he felt bad about not giving Bissett the opportunity to donate her organs, because "I even took that choice away from Mika for hiding her body and letting it get destroyed by nature, that she couldn't even do that."

B. Post-conviction activity

At the parole board hearing, Dubov agreed that he had earned three associate's degrees, a bachelor's degree in psychology, and a master's degree in psychology. He had completed vocational training in several subjects, such as building maintenance and computer repair. He also had completed a lot of "self-help programming," including anger management, victim impact, AA, NA, offender mentor work, and veteran support. Dubov said he took classes "to make sure that I understood completely what was wrong with me, and how to improve." He had "numerous laudatories" relating to classes and from staff. The commissioner noted that "many officers had noted your behavior - positive behavior, your programming." Dubov had also received laudatories from various work supervisors.

Dubov had no disciplinary violations while in prison, which the commissioner remarked was "exceptional." However, in 2012 there was an incident in which contraband was found in Dubov's work area, consisting of a microwave, CDs, DVDs, mail, and a "blank inmate docket." Dubov said he "didn't see anything wrong with it at that time. We had supervisor approval." He said it was a "learning experience," and "it's my responsibility to have my own integrity, even if you have a supervisor's approval."

When asked how he is different now than he was in 1993, Dubov responded, "I think the biggest change for me is [that] I've learned who I was. Instead of who I should be or what I was expected to [be]." He acknowledged that he had caused "so much damage for my actions." He "wanted to look at who I was, in all of my flaws," and "learn compassion, and empathy, and a connection with - with a community, rather than thinking I'm unique." He also said, "I don't need drugs anymore to solve a problem."

Dubov said he had been in a relationship with a woman for 23 years while he was in prison. She knew about his crime, and they had plans for how to deal with relationship problems if Dubov was released. He talked about his plans upon release, which included enrollment in a long-term transitional housing facility, Beit T'Shuvah. Regarding work, Dubov was "certified as a drug and alcohol counselor," and that is "where I'm going to put all my stock in, is counseling."

C. Comprehensive risk assessments

Three CRAs are included in the record on appeal, and were apparently available to the board. In a CRA from May 2009, Dubov described the crime by saying that "he was out of control and at the time, blamed others for his problems." He said that he and Bissett had an altercation, he grabbed her by the throat, and he "thought she had passed out." He threw her on the bed, went and watched TV, and when he checked in on her again, she was cold and had rigor mortis. Dubov said he "blanked out from there and came to a day and a half later - I sat in that room for a day and a half." He said he went to Arizona and tried to commit suicide, but did not succeed. Dubov said he "turned himself in" because he felt guilty. The CRA clarified that Dubov "considers that he turned himself in by keeping the appointment" the police set to question him, even though he initially lied to police that day.

Dubov said the crime occurred due to his frustration, self-centeredness, immaturity, and blaming his problems on Bissett. The CRA stated that "[d]rug use likely contributed to his lack of judgment, impulse control, and frustration tolerance overall, and in relation to his actions toward his victim." The CRA noted that Dubov said that he and Bissett were both using methamphetamine, but the autopsy revealed no narcotics in Bissett's body. Bissett was approximately 18 weeks pregnant.

The 2009 CRA stated that Dubov had participated in many self-help groups and had attended AA. He had a "somewhat unreflective view of personal changes that he could/should make, suggesting some vestiges of a sense of grandiosity with some lack of insight." "Diagnostic impressions" included an Axis II diagnosis of "Personality Disorder NOS with Narcissistic and Dependent traits." The CRA deemed Dubov a low risk for violence in the free community.

A CRA from March 2015 noted that Dubov had "a history of problems with violence and a violent attitude. Both of these factors are considered to be of significant relevance to his risk for future violence." The CRA also stated that Dubov "demonstrated a high level of participation in many treatment programs," and that he "has been able to maintain long-term, positive, prosocial relationships with family members and friends in the free community." The 2015 CRA noted the 2009 CRA's finding of personality disorder with narcissistic and dependent traits, but stated that the psychologist "did not find evidence of the historical roots or current presence of these traits, or any other signs or symptoms that might suggest the existence of a personality disorder at this time."

Regarding the crime, the 2015 CRA stated that Dubov reported that he had an altercation with "my girlfriend," in which he was trying to control her. Dubov was "estranged from my parents, and had no contact with my brother." Dubov said they fought around December 11, he left, and then "[o]n the 13th I came back." He strangled her and "I thought she had passed out. I picked her up and threw her back on the bed, face down on the corner of her bed. [¶] I came back a couple of hours later and discovered her dead." He said he attempted suicide by overdosing on methamphetamine, and he talked about lying to the police. He also said, "After I was arrested, I found out that Mika was 18 weeks pregnant. I robbed Mika of everything. I took her life away."

When asked about causative factors, Dubov said, "I lived my life looking for external rewards." He also said, "I do not blame my actions on meth. I chose to use the drug. I think it was a factor. . . . My killing Mika was my responsibility." He said that when he strangled Bissett, "I didn't just want control. I wanted to hurt her. My thoughts were so ugly. I wanted to teach her a lesson." The CRA noted that Dubov had "no recent problems with violent ideation or intent toward others." The CRA deemed Dubov a low risk for violence.

A CRA completed in June 2016 stated that the parole board had granted Dubov parole in April 2015, and Governor Jerry Brown reversed the decision in September 2015. According to the CRA, "the Governor remained concerned that Mr. Dubov's crime was cruel and destructive and that the inmate's behavior at the time was not unusual for him." The Governor thought Dubov was minimizing his role in the crime. The Governor was also concerned about Dubov's deception in concealing the crime, and Dubov's references to his actions as cowardly. "The Governor stated, 'Being able to deceive under these circumstances is more than cowardly.'"

The 2016 CRA noted that Dubov "tended to use phrases and psychological jargon that exhibited a pseudo-intellectual flavor. He was opinionated and haughty at times." Due to his past use of methamphetamine, he "met the criteria for a DSM-5 diagnosis of Stimulant Use Disorder (Amphetamine Type), Severe, in a Controlled Environment." When asked about the impact of his drug use on the murder, Dubov called it "an incendiary," and said, "it would have happened anyway. I don't think drugs have a primary role."

The CRA also stated that Dubov "meets full criteria for a diagnosis of Narcissistic Personality Disorder." It stated that Dubov "has demonstrated a pattern of entitlement, arrogance, and a need for admiration." Dubov talked about a need to "win," which "suggest[s] that he has an innate belief that he or his desires are more important or take precedence." The risk assessment used the example of Dubov waiting outside the apartment for hours when Bissett would not let him back in. "When asked why he didn't just leave, he insisted that he could not do so because he could not let his girlfriend win." The risk assessment also stated that Dubov's "interpersonal style indicates a sense of arrogance and self-importance. He reported his belief that others envy and respect him. He has also indicated that much of his behavior in the past has been driven by a need to be admired or to appear 'perfect.' The inmate has demonstrated a lack of empathy or regard for others or their experiences, at least in respect to his own. In other words, his needs have always come first."

The risk assessment noted Dubov's extensive involvement in self-help groups and charitable organizations. In addition, Dubov "has been active in facilitating and even creating curricula for self-help presentations," such as anger management, domestic violence, and intimate partner violence programs. He had received associate's degrees in 2007, 2008, two in 2009, 2011, and 2012. He had earned two bachelor's degrees in psychology, and a master's degree in psychology. Dubov had also received "a large number of laudatory chronos remarking on his exemplary involvement in self-improvement activities."

The 2016 CRA said that after completing a transitional program, Dubov wanted to "live with his family and assist his brother in caring for their aging mother. He also reported that he will work in his parents' commercial property management business where he will run the office." He wanted to work in psychology, but "he recognized that a large impediment to his goal is that he will be unable to obtain a license due to his criminal history."

In assessing the risk of violence, the CRA noted that Dubov's "Narcissistic Personality Disorder is a factor that remains relevant to his functioning at this time and elevates his risk for potential violence in the future." Regarding the crime, the CRA noted that "the intimacy of murder by strangulation suggests a total lack of compassion and empathy. The murderer must be willing to watch and be present as the victim dies, literally, at their hands. The inmate has demonstrated a capacity for severe violence without any sense of feeling." Dubov's violent history was a "moderately relevant factor," his substance abuse "remains a moderate risk factor," and another risk was Dubov's "self-stated history of violent attitudes" toward others in order to get his way. His "insight into factors that have led him to commit violence is relatively high." Ultimately, the CRA found that "Dubov presents a Low risk for violence," although he "continues to present with some relevant factors that affect his risk for violence." At the parole hearing, when asked about a plan upon release relating to behaviors, Dubov noted that he had an anger plan, a relationship plan, "and also narcissism because of the last - the last, uh, psych eval."

D. Board decision

In closing statements, the deputy district attorney argued that "every time [Dubov] gets caught in a lie or a misstatement, uh, he changes his answer and comes up with some kind of an explanation." He noted that Dubov's statements of fact and explanations conflicted in some ways with previous statements. The deputy district attorney also noted that Dubov's explanations about getting caught with contraband items "reveal . . . a little bit more about the inmate, and how he explains his failings when he got caught."

Dubov's counsel argued that Dubov "continues to engage in growth and maturation." He had no history of violence that was not tied to his use of methamphetamine. At the time of the crime he was "literally not sleeping for days on end." Also, Dubov had been a model prisoner.

When asked for a closing statement, Dubov noted that Bissett would have been 45 years old at the time of the hearing, and "her unborn son should've been 24." He said he was responsible for the son's death, and "I should've protected her, instead I preyed upon her. And, uh, I'm sorry for that and even though Mika's mom can't be here today, I - I want to say sorry to her, too."

The board deliberated for less than an hour, and returned with a decision. It found that Dubov did not pose a threat to public safety, and therefore that he was eligible for parole. The board said that it "did give great weight to the diminished culpability of juveniles as compared to adults." The board also noted Dubov's "exemplary" behavior during incarceration, and stated that he had a realistic parole plan.

E. Governor's reversal

Governor Gavin Newsom reversed the parole board's decision. The Governor acknowledged that Dubov was a youthful offender, and that he had "made some efforts to improve himself in prison." Nonetheless, "these factors are outweighed by negative factors that demonstrate he remains unsuitable for parole." The Governor called the crime "callous and cruel," noting that Dubov killed Bissett despite her allowing him to live in her apartment. The Governor stated, "I am troubled that Mr. Dubov still does not have a better understanding of how he came to inflict such violence on another human being."

The Governor noted that Dubov said he felt he needed to win, and that he had power and control issues. At the parole hearing, Dubov explained that he felt entitled, that he had a "'fear of failure as a child, which stemmed to me creating ego, and entitlement, and grandiosity. And validation - external validation.'" The Governor stated, "These statements show me that Mr. Dubov has not gained adequate insight into his actions." Dubov had a stable childhood with no exposure to violence, and although he described Bissett as his "'last string of hope' in giving him the validation that he was seeking," he murdered her.

The Governor also noted that Dubov had characterized his methamphetamine use as "an incendiary," and said, "I don't think drugs have a primary role." The Governor stated, "Until he demonstrates that he fully understands how his drug addiction contributed to his criminal actions, and shows that he is capable of refraining from similar behavior in the future, I do not believe he should be released from prison." The Governor concluded, "When considered as a whole, I find the evidence shows that [Dubov] remains an unreasonable danger to society if released from prison. Therefore, I reverse the decision to parole Mr. Dubov."

F. Petition for writ of habeas corpus

Dubov apparently filed a petition for writ of habeas corpus in the Los Angeles Superior Court; neither the petition nor any supporting documents are included in the record on appeal. In a memorandum of decision, which is included in the record, the superior court denied the petition. The court found that there was "some evidence to support the Governor's decision that Petitioner poses an unreasonable risk of danger to society, and if released, a threat to public safety due to the heinousness of the commitment offense and lack of insight." The superior court found there was evidence that the crime and Dubov's actions afterward in lying to Bissett's family and hiding her body "demonstrates an exceptionally callous disregard for human suffering." The court also found that in the 2009, 2015, and 2016 CRAs, Dubov "appeared to have attributed more significance to the role of drug addiction in the commitment offense than Petitioner currently does," and that "Petitioner's minimization of the role of drug addiction in the crime is some evidence supporting the Governor's finding of current dangerousness." The court noted that the Governor considered Dubov's youthfulness at the time of the crime and his attempts to improve himself in prison, yet concluded that these positive factors did not outweigh those showing unsuitability for parole. The court stated that there was a "rational nexus between the evidence in the record and the Governor's determination of Petitioner's current dangerousness."

Dubov filed a petition for writ of habeas corpus in this court. (See People v. Garrett (1998) 67 Cal.App.4th 1419, 1423 ["The denial of a petition for writ of habeas corpus is reviewable by means of a petition for writ of habeas corpus."].) After receiving a preliminary response and reply, we issued an order to show cause directing the Attorney General to file a written return; Dubov filed a traverse.

DISCUSSION

Dubov contends that the Governor's decision is unsupported by the evidence because Dubov has demonstrated "more than sufficient insight and remorse," as well as "two-plus decades of rehabilitative effort." The Attorney General asserts that the Governor's decision was supported by the evidence.

"The essential question in deciding whether to grant parole is whether the inmate currently poses a threat to public safety. [¶] That question is posed first to the Board and then to the Governor, who draw their answers from the entire record, including the facts of the offense, the inmate's progress during incarceration, and the insight he or she has achieved into past behavior." (In re Shaputis (2011) 53 Cal.4th 192, 220-221 (Shaputis II).) "Judicial review is conducted under the highly deferential 'some evidence' standard. The executive decision of . . . the Governor is upheld unless it is arbitrary or procedurally flawed. The court reviews the entire record to determine whether a modicum of evidence supports the parole suitability decision. [¶] 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." (Id. at p. 221.)

Here, reviewing the entire record, we find that some evidence supports the Governor's findings. The Governor based his decision on two factors: the crime and Dubov's lack of insight. We consider each below.

The record before us contains the October 2018 parole board hearing transcript; the 2009, 2015, and 2016 CRAs; some worksheets completed by Dubov; a police report; the Governor's letter, and the superior court decision on Dubov's petition for writ of habeas corpus. We have no information from the original criminal proceeding, transcripts from previous parole hearings, or the former Governor's reversal of the parole board's previous findings. Because the parole board mentioned previous transcripts, it does not appear that the record on appeal includes all of the information that was before the board. The appellate record also includes no information regarding the record before the Governor. --------

A. The crime

"[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, § 2281, subd. (a).) This regulation "lists several circumstances relating to unsuitability for parole—such as the heinous, atrocious, or cruel nature of the crime, or an unstable social background; and suitability for parole—such as an inmate's rehabilitative efforts, demonstration of remorse, and the mitigating circumstances of the crime. (Regs., § 2281, subd. (d).)" (In re Lawrence (2008) 44 Cal.4th 1181, 1202-1203.)

According to regulation 2281, subdivision (c)(1), a prisoner is unsuitable for parole when "[t]he prisoner committed the offense in an especially heinous, atrocious or cruel manner." Factors to be considered include whether the "offense was carried out in a dispassionate and calculated manner, such as an execution-style murder," the "victim was abused, defiled or mutilated during or after the offense," the "offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering," or the "motive for the crime is inexplicable or very trivial in relation to the offense." (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1)(B)-(E).)

Where "certain circumstances of petitioner's offense, as well as his postoffense conduct, . . . involve particularly egregious acts beyond the minimum necessary to sustain a conviction for [first] degree murder," the Governor may "consider the nature of the offense in denying parole." (In re Rosenkrantz (2002) 29 Cal.4th 616, 683.) However, "the core statutory determination entrusted to the Board and the Governor is whether the inmate poses a current threat to public safety," thus there must also be "'some evidence' . . . that the inmate is unsuitable for parole because he or she currently is dangerous." (In re Lawrence, supra, 44 Cal.4th at p. 1191.)

Here, the Governor called the murder "callous and cruel." This conclusion is supported by the evidence. Dubov stated that in response to a perceived slight by Bissett being "in control," he grabbed her by the throat, pinned her to the floor, and strangled her to death over a period of two and a half minutes. He said he had decided the day before that he was going to kill her. He left Bissett's body in the apartment for two days until it "started to smell," then he put it in a duffel bag, disposed of it off a fire road, and pulled off her shirt because it stood out in the shrubbery. Dubov lied to Bissett's mother by saying Bissett had gone to see a friend, and later told her he had heard from Bissett and everything was fine. He impersonated Bissett in a call to Eric to say she was fine. These facts demonstrate that the offense and Dubov's post-offense conduct involved particularly egregious acts, including carrying out the offense in a dispassionate and calculated manner; abusing, defiling or mutilating the victim during or after the offense; showing an exceptionally callous disregard for the suffering of both Bissett and her mother; and the motive for the crime was very trivial in relation to the offense. As the 2016 CRA stated, Dubov's actions "demonstrated a capacity for severe violence without any sense of feeling." The Governor's conclusion that the crime was callous and cruel is therefore supported by evidence.

B. Lack of insight

The Governor stated, "I am troubled that Mr. Dubov still does not have a better understanding of how he came to inflict such violence on another human being." He noted that Dubov said he committed the crime due to a need to win, a sense of entitlement, power and control issues, grandiosity, and a desire for external validation. The Governor stated, "These statements show me that Mr. Dubov has not gained adequate insight into his actions," especially in light of Dubov's stable and supportive background and lack of exposure to violence.

Evidence supports the Governor's finding that Dubov did not display adequate insight into the factors that led to the murder. Dubov discussed relatively benign psychological issues, such as a desire to win, a sense of entitlement, and power and control issues, but he offered no insight into how those issues led him to murder Bissett rather than manifesting in less destructive ways. In addition, Dubov's explanations at the parole hearing included a need for external validation and when "I didn't get it, I destabilized," and "when I couldn't get [validation] from Mika, I couldn't self-soothe anymore." Dubov also talked about "causative factors of my youth," when he "started having my defects of character." Dubov's use of psychological jargon suggests an effort to construct a clinical assessment that appears insightful, rather than a manifestation of actual insight.

In addition, Dubov mentioned his narcissistic personality disorder only in passing, as something to address "because of the last . . . psych eval." This also supports the Governor's conclusion that Dubov lacked insight into what caused him to commit the crime. Indeed, Dubov had the impression that as he was strangling Bissett, "She was trying to use compassion. She was trying to use love. She touched my hand." To suggest that a murder victim, while in the process of being strangled, was feeling loving and compassionate toward the murderer demonstrates a serious lack of insight. Dubov focused primarily on how the lies relating to the murder weighed on him, how relieved he felt after he was caught, and how he prolonged Bissett's mother's hope. These are peripheral issues surrounding the murder that focus primarily on Dubov, with little compassion or insight into what Bissett experienced in the abusive relationship or during the crime.

Evidence that an inmate's "character remains unchanged and that he is unable to gain insight into his antisocial behavior despite years of therapy and rehabilitative 'programming,' all provide some evidence in support of the Governor's conclusion that [an inmate] remains dangerous and is unsuitable for parole." (In re Shaputis (2008) 44 Cal.4th 1241,1260.) In addition, "an inmate's 'lack of insight' can provide a logical nexus between the gravity of a commitment offense and a finding of current dangerousness." (In re Ryner (2011) 196 Cal.App.4th 533, 547 (Ryner).) The record contains evidence to support the Governor's conclusion.

Dubov asserts that "the Governor's conclusion regarding Dubov's insight is based on a parsed and selective reading of the record and rests on speculation and misinterpretation." He insists that "Dubov's testimony shows no material lack of insight or evidence of minimization, but the Governor simply refused to accept it." We disagree. Even if the record could be read to support a finding that Dubov had gained adequate insight, it is not the court's role to re weigh the evidence. "As long as the Governor's decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court's review is limited to ascertaining whether there is some evidence in the record that supports the Governor's decision." (In re Rosenkrantz, supra, 29 Cal.4th at p. 677.) That standard has been met here.

Dubov relies heavily on Ryner, supra, 196 Cal.App.4th 533, a case decided six months before Shaputis II. In Ryner, the Sixth District questioned whether lack of insight is a valid basis for denying parole. The Ryner court stated, "[W]e consider the very concept of 'insight' to be inherently vague and find that whether a person has or lacks insight is often in the eye of the beholder. Hence, although a 'lack of insight' may describe some failure to acknowledge and accept an undeniable fact about one's conduct, it can also be shorthand for subjective perceptions based on intuition or undefined criteria that are impossible to refute." (Ryner, supra, 196 Cal.App.4th at p. 548.) Thus, the Ryner court concluded, "Evidence of lack of insight is indicative of a current dangerousness only if it shows a material deficiency in an inmate's understanding and acceptance of responsibility for the crime. To put it another way, the finding that an inmate lacks insight must be based on a factually identifiable deficiency in perception and understanding, a deficiency that involves an aspect of the criminal conduct or its causes that are significant, and the deficiency by itself or together with the commitment offense has some rational tendency to show that the inmate currently poses an unreasonable risk of danger." (Id. at pp. 548-549.)

Six months later in Shaputis II, the Supreme Court made clear that consideration of an inmate's insight is an important factor in a parole decision, as "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." (Shaputis II, supra, 53 Cal.4th at p. 218.) Even under the standard articulated in Ryner, Dubov's statements showed a material deficiency in his understanding and acceptance of responsibility for the crime. Dubov cited several general psychological issues—a desire to win, power and control issues, a sense of entitlement—but did not connect those issues to the actual crime. Dubov's desire to "win" the argument with Bissett for example, could have manifested in multiple ways short of murdering her. Moreover, although Dubov said in the 2015 CRA that he wanted to hurt Bissett, he did not acknowledge this motive in the 2018 parole hearing. His earlier statements about the crime in the 2009 and 2015 CRAs stated that he did not even intend to kill Bissett. By contrast, at the 2018 parole hearing Dubov said he decided on the afternoon of December 13 that he would kill Bissett and he did not do so that day because it was not an opportune time. Dubov showed no insight into why he did not reflect upon or reconsider his decision to kill Bissett in the many hours that passed between that decision and the murder the following morning.

We are mindful of Justice Liu's statements in the concurrence in Shaputis II that the concept of "lack of insight" requires careful consideration. "Precisely because lack of insight is such a readily available diagnosis, its significance as an indicator of current dangerousness must be rationally articulated under the individual circumstances of each case—lest 'lack of insight' become, impermissibly, a new talisman with the potential to render almost all life inmates unsuitable for parole." (Shaputis II, supra, 53 Cal.4th at p. 230 [J. Liu, concurring].) Here, however, evidence supports the Governor's conclusion that Dubov "has not gained adequate insight into his actions," and that it is troubling that Dubov "still does not have a better understanding of how he came to inflict violence on another human being."

The Governor also pointed to Dubov's statements about his drug use, noting that Dubov said his use of methamphetamine was "an incendiary," but the murder "would have happened anyway." The Governor stated, "Until he demonstrates that he fully understands how his drug addiction contributed to his criminal actions, and shows that he is capable of refraining from similar behavior in the future, I do not believe that he should be released from prison."

This statement is also supported by evidence. Dubov said he was actively using methamphetamine over the days leading to the murder, and that he had not slept as a result. He minimized the role of the drug in the crime, stating that the murder would have happened anyway. Although Dubov's willingness to take responsibility for the crime instead of simply blaming methamphetamine is laudable, his minimization of the role his addiction, drug use, and sleep deprivation played on his state of mind at the time of the crime supports the Governor's finding that Dubov has not shown adequate insight into this issue.

"[T]he standard governing judicial review of parole decisions made . . . by the Governor is whether 'some evidence' supports the determination that a prisoner remains currently dangerous." (In re Prather (2010) 50 Cal.4th 238, 243.) "Due process of law requires that [the Governor's] decision be supported by some evidence in the record. Only a modicum of evidence is required." (In re Rosenkrantz, supra, 29 Cal.4th at p. 676-677.) Here, that standard has been met.

DISPOSITION

The petition for writ of habeas corpus is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J. We concur: WILLHITE, ACTING P.J. CURREY, J.


Summaries of

In re Dubov

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 22, 2020
B297731 (Cal. Ct. App. Jan. 22, 2020)
Case details for

In re Dubov

Case Details

Full title:In re MICHAEL DUBOV, on Habeas Corpus.

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

Date published: Jan 22, 2020

Citations

B297731 (Cal. Ct. App. Jan. 22, 2020)