Opinion
H036267
10-19-2011
In re CONLEY E. DUKES, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. 88545)
Respondent Conley E. Dukes has been incarcerated since 1983, when he was convicted in three separate cases of kidnapping for robbery (Pen. Code, § 209, subd. (b)), five counts of robbery (§ 211) with personal use of a deadly or dangerous weapon (§ 12022, subd. (b)), two counts of burglary (§ 459), vehicle theft (Veh. Code, § 10851), and possession of stolen property (§ 496). In November 2009, the Board of Parole Hearings (the Board) concluded he was unsuitable for parole because he would pose an unreasonable risk of danger or a threat to public safety if released. Dukes challenged that decision in the superior court, which granted his petition for a writ of habeas corpus and ordered the Board to conduct a new hearing.
Subsequent statutory references are to the Penal Code unless otherwise noted.
On appeal, the Acting Warden contends the superior court erred in granting the petition, because "some evidence" supports the Board's decision. We agree, and we reverse the superior court's order.
I. Background
A. The Crime Spree
We take the facts from the February 18, 1983 probation report and from the unpublished January 2, 1985 appellate decision affirming Dukes's convictions, which was incorporated into the record of his November 4, 2009 parole consideration hearing.
Dukes and his cohorts engaged in a violent crime spree from mid-November 1982 until their arrests in late December of that year. On November 10, 1982, he and two accomplices forced their way into Edwin Cabral's workshop and kicked and beat him. Dukes put a knife to Cabral's throat. The intruders left with a cassette recorder, a small television, a watch, and four dollars from Cabral's pocket. Cabral positively identified Dukes.
Dukes committed the life crime on December 15, 1982. David Sanchez was sitting in his car around 9:00 p.m. that night when a woman approached and asked him for a "date." As she got into Sanchez's car, Dukes and a cohort rushed up, armed with knives, and grabbed Sanchez by the hair. Demanding money, they got into the car, and Sanchez gave them $45. Dukes took Sanchez's watch and gold chain, then handcuffed him. While the woman drove, Sanchez was yanked by his hair into the back seat, cut near his eye, and threatened with death. Forty minutes later, he was pushed out of his car, still handcuffed, in a mountain area 35 miles away. Sanchez later identified Dukes.
Duane Clements's house was broken into on December 16, 1982, and a .22 caliber rifle was among the items stolen. Dukes and an accomplice were in possession of the rifle on the day they were arrested.
Around 10:25 p.m. on December 23, 1982, Dukes and two other men forced their way into the home of Clemente Jimenez and Alexandra Diaz. Dukes was armed with a rifle, and the other two had knives. Jimenez was forced to the floor with the rifle in his back, and both victims were tied up. The robbers stole three dollars and a pocketknife. Jimenez later identified Dukes.
Around 11:00 p.m. that same night, Dukes and two cohorts forced their way into the home of Antonio Diaz and Theresa Cruz. Dukes and one man were armed with rifles; the other man carried a knife. They entered a bedroom where Bonito Rodriquez and Sylvia Manana were sleeping and stole $400 from a pants pocket. They then used a belt to tie Diaz's hands behind his back. They left with his wallet, television, stereo, and car.
An hour later, Dukes and an accomplice forced their way into the home Manuello Torres shared with his cousin. They demanded money and left with a stereo.
Around 2:45 a.m. on December 26, 1982, Dukes and two accomplices beat and robbed Jose Molina, who had been lured into a car by Dukes's then-wife and a female accomplice. The robbers drove Molina to his apartment to get more money, stole his roommate's wallet, and drove off in Molina's car.
Dukes was arrested the next day and ultimately convicted. He was sentenced to life in prison with the possibility of parole for the kidnapping for robbery conviction. His convictions were affirmed on appeal.
The life sentence was consecutive to a sentence of 12 years and eight months imposed in the first of two jury trials. Dukes pleaded guilty to vehicle theft and possession of stolen property in the third case.
B. Dukes's Prior History
Born in 1953 in Longview, Washington, Dukes lived on a farm until he was five. His father died that year in a lumber mill accident, and his mother lost the farm. Dukes has one brother and five half siblings from his mother's subsequent marriages. None has ever been involved in crime. His mother is now deceased.
Dukes had his first beer when he was 14, and he began drinking malt liquor shortly after that. At the peak of his addiction, he reported drinking "eight to ten beers" "throughout the whole day." It would take "approximately a quart of malt liquor" to get him drunk, and he got drunk often. He experienced "a few blackouts." He reported driving under the influence without getting caught.
Dukes started sniffing glue when he was 12. At 13 or 14, he began smoking marijuana. He averaged two joints a day and became "happy, but stupid" under the drug's influence. Dukes started experimenting with barbiturates, "reds," and psychedelics at 14, and used psychedelics weekly until 1974. He was introduced to methamphetamines and "bennies" at 15 and reported using from three to five "rolls" intravenously until the late 1980's.
When he was around 18, Dukes began using heroin, and it quickly became his drug of choice. It cost him $100 a day to support his habit. He overdosed twice, in 1978 and 1989.
Dukes was sent to a boy's ranch at 13 after running away from home. He was arrested at 14 for drug possession. At 15, he was committed to the California Youth Authority (CYA) for grand theft, burglary, violating probation, and escaping detention. Released six months later, he was soon sent back to the CYA for violating probation. He was released again, but sent back to the CYA for possession of marijuana when he was 19.
Dukes claims a high school education but he has no diploma and has never obtained a G.E.D. He told the Board that his mother "had [his diploma] when she died," that his high school told him "all their case records were destroyed because the school was like modules," and that the state "said they don't keep records . . . that far back."
Dukes married at 18. His drug habit kept him from maintaining gainful employment, so he and his wife began "shooting up" together and committing robberies. They had three children and divorced in 1993. His ex-wife died in 1999.
Dukes has an extensive history of adult arrests and convictions. He was convicted of theft (§ 484) in 1972 and 1975, credit card forgery and theft (§ 484) in 1976, appropriating lost property (§ 485) and receiving stolen property (§ 496) in 1977, credit card forgery (§ 484) in 1978, being an accessory to a felony (§ 32) and petty theft with a prior (§ 666) in 1980, and theft and petty theft (§§ 484, 488) in 1981.
Dukes was unsuccessfully involved in numerous drug rehabilitation programs before his incarceration, including CAPS, Parlandra, Serenity House, and the New Day Drug Rehabilitation Program. He violated probation at least twice.
C. Postincarceration Record
Dukes has not upgraded educationally. He has worked as a groundskeeper, painter, porter, maintenance mechanic, cook, clerk, and sewing machine operator in prison. He received eight laudatory chronos for positive work performance between 1987 and 1999, but his work grades deteriorated after that. He was unassigned due to administrative segregation from October 2001 until February 2003. He was later assigned to work as a porter, and has received satisfactory work grades thereafter.
Dukes has participated in various Bible study, spirituality, and developing a positive attitude programs during his incarceration. He completed a 22-week Victims' Offender Education Group and a Creative Conflict Resolution class in 2008. He has also been involved in the IMPACT program.
Dukes participated in Substance Abuse Victory Education in 1991 and attended Narcotics Anonymous (NA) from 1993 to 1995. He received a certificate of attendance for regularly participating in Alcoholics Anonymous (AA) from 2003 to 2005 and continues his participation in that organization. He has participated in the Addiction Recovery Counseling and Overcomers Outreach programs. He resumed his participation in NA in 2006.
Dukes has been disciplined 18 times in prison, most recently in 2000 for making unauthorized copies. Ten of his eighteen 115's were controlled substance violations. He has received four counseling chronos, the last in 2001 for threatening to kill his cellmate.
"In prison argot, [CDC Form 128-A] 'counseling chronos' document 'minor misconduct,' not discipline . . . . [Citation.]" (In re Smith (2003) 109 Cal.App.4th 489, 505; Cal. Code Regs., tit. 15, § 3312, subd. (a)(2).) A "CDC Form 115" documents serious misconduct that is believed to be a violation of law or otherwise not minor in nature. (In re Gray (2007) 151 Cal.App.4th 379, 389; Cal. Code Regs., tit. 15, § 3312, subd. (a)(3) (Regs.).) Subsequent references to "Regs." will be to this title.
Dukes's other 115's were received in 1984 (marijuana and poker cards found in cell), 1985 (two, for home brew in cell and failing to report for count), 1987 (contraband, stimulants, and sedatives), 1988 (radio at excessive volume), 1989 (under the influence of unknown narcotic), 1992 (unexcused absence from substance abuse class), 1994 (participating in work strike), 1995 (three, for possession of hypodermic syringe, possession of hypodermic syringe kit, and possession of morphine), 1996 (four, for control of hypodermic needle, possession of controlled substance, refusal to work culinary, and refusal to work), 1997 (manufacturing alcohol), and 1999 (making unauthorized copies).
Dukes's other 128-A's were received in 1999 (found with library magazine) and 2000 (two, for failure to report to work and unsatisfactory attitude at work).
E. Psychological Evaluations
Dr. Geca evaluated Dukes in 2007. Her "addendum for update" (which includes brief summaries of earlier evaluations) is the only psychological evaluation in the record.
Dr. Geca observed that Dukes's account of his crimes "seemed consistent with official records." He "openly discussed his participation in the crimes and accepted full culpability for his actions." He "recognized that his judgment was strongly marred by his drug use," and that his behavior was rash and "ultimately hurtful." He also "reported that he was remorseful." But he had "only a perfunctory comprehension" of his victims' suffering and "did not seem to investigate" how his crimes affected them.
Dr. Geca reported that in his 24 years of incarceration, Dukes had come to realize he was "heavily dependent" on illicit drugs. He also "came to understand" that he needed assistance in dealing with the problem, and he "began to seek help." By the time of his 2007 interview, he had identified only "a few" factors that contributed to his addiction. "He became cognizant of his defeatist attitude and underlying, brooding anger, and started addressing these problems." He also realized that his growing-up years had affected his understanding of right and wrong, telling her, "I thought it [crime and drug use] was okay." When she asked how he had concluded that stealing from and robbing others were "okay," however, he had no answer. "After several different attempts . . . , [he] said, 'I really don't know.' "
Dr. Geca diagnosed Dukes with polysubstance dependence in institutional remission and antisocial personality disorder. She noted that other evaluators had made similar diagnoses. In 1997, Dr. Amezaga had opined that if Dukes could not remain "completely drug free," his level of dangerousness "would likely escalate to a pre-incarceration level." In 1999, Dr. Bradley concluded that if Dukes "should again return" to substance abuse, his violence potential would be "considerably above average." Dr. Savage made no diagnosis when he evaluated Dukes in 2003, but he echoed the other evaluators' concerns, emphasizing that "[r]egardless of his confidence that he will no longer use, [Dukes] has a lifelong history of using drugs and of relapsing . . . . [He] takes a somewhat cavalier attitude about his drug abuse problem, not feeling that he is in any particular risk of re-offending or relapsing. This lackadaisical attitude does not bode well for a man who spent 20 years in an institutional setting and will face the stresses and confusing situations on the streets."
Dr. Geca was specifically asked to address (1) Dukes's violence potential in the free community, (2) the significance of alcohol and drugs related to the commitment offense and an estimate of his ability to refrain from using and abusing them if released, (3) the extent to which he had "explored the commitment offense and come to terms with the underlying causes," and (4) his "victim stance" and "insight into [the] impact of his crime[s] on the victim[s] rather than only himself and his family."
She used three different assessment guides, the Hare Psychopathy Checklist-Revised (PCL-R), the History Clinical Risk-20 (HCR-20), and the Level of Service Inventory/Case Management Inventory (LS/CMI), to assess Dukes's violence potential in the free community. His score on the PCL-R placed him in the "moderate range" for psychopathy, "a personality trait . . . strongly linked with risk for future violence." Dr. Geca explained that while his scores did not reflect attitudes indicative of psychopathy, "several characterological traits like callousness, lack of empathy, conning and manipulative attitudes and behaviors have been noted throughout his lifetime." These "elevated" factors were "related to his previous adventurous or stimulation seeking behaviors such as abuse of drugs and alcohol, lack of sustainable gainful employment, early behavior problems . . . , juvenile delinquency . . . , poor compliance with conditions of his probation, escape from detention . . . , impulsive behaviors, lack of responsibility for his actions and criminal versatility . . . ."
Dukes's score on the HCL-20 test, which examines historical, clinical, and risk management factors associated with violence, similarly put him in the "moderate range" for violent recidivism. Historical factors figuring "prominently" in his life included a history of violence, "relationship instability (i.e., his common-law wife used drugs and was one of his co-defendants)," extensive drug and alcohol abuse with "failed attempts at recovery," and "antisocial personality structure."
Dr. Geca expressed concern about Dukes's clinical and risk factors which, unlike historical factors, can change. A clinical factor of "moderate" concern was his impulsivity, demonstrated by his "numerous" 115 and 128-A infractions, many of which "evidence[d] his impulsive thinking/acting without realizing or caring about the consequences of his actions." Dr. Geca also had three "moderate" concerns about Dukes's risk factors. Although his parole plans were feasible and comprehensive, and his "more recent response" to treatment attempts "appear[ed] successful," he had an "extensive" history of drug and alcohol abuse and had "struggled with his commitment to sobriety even during his incarceration." Since "a significantly easier access to illicit substances" in the free community and "the presence of stress" could increase his risk of recidivism, Dr. Geca recommended that "[a] more solid and personal community support system should be in place prior to his release."
Dukes's LS/CMI score indicated that he was in the "medium" category for general recidivism. Overall, Dr. Geca assessed Dukes's risk for future violent recidivism as "moderate."
Addressing the Board's second question, Dr. Geca noted Dukes's "extensive" history of drug and alcohol abuse, his "numerous" drug-related crimes, his heroin overdoses, and his failed attempts at recovery. During his incarceration, he "violated institutional rules . . . regarding controlled substances ten . . . times." She observed that in "more recent years," he had become involved in recovery programs and "reported being clean and sober" since 1997.
Addressing the Board's third question, Dr. Geca observed that Dukes had "utilized a number of available resources to gain some understanding of his offense." He had "re-examined his thoughts and beliefs" and "tried to understand his emotions at that time" and their effect on his decisionmaking process and on his reliance on heroin and other drugs. He "seemed" to understand the gravity of his behavior and its painful consequences, but only "to some extent."
Addressing the Board's fourth question, Dr. Geca observed that Dukes did not blame others or regard himself as a victim. "However," she continued, "his 'insight into [the] impact of his crime on the victim[s] rather than only himself and his family,' has been limited." She reported that Dukes was unable to describe the effect of his crimes on his victims beyond suggesting that they " 'might have [posttraumatic stress disorder].' " While Dukes was "going in the right direction in developing insight into his crime and its effects," he had in Dr. Geca's opinion "barely started on his journey."
F. November 4, 2009 Parole Consideration Hearing
Dukes first became eligible for parole in 1998. This was his seventh subsequent parole consideration hearing. He was 56 years old. A description of the crimes was read into the record of the hearing, and Dukes acknowledged that it was an accurate account.
The Board asked Dukes why he committed his crimes. He told them he did it "for drugs," and because of "irresponsibility, being scared." His father died, he had "numerous" stepfathers, he was "beaten and sexually molested," and he started using drugs "as a character defect." Pressed to explain how being "scared" or "irresponsible" equated to victimizing others, Dukes responded, "I believe it all plays, it all plays in the same role, being irresponsible, immature, not caring for people, not caring for myself." He attributed his extensive criminal history entirely to drugs: "[A]ll that is from using drugs. All of it." Asked what it was about his addiction that was "so unique" from the addictions of those with far less extensive criminal histories, he replied, "[e]verything I did wrong I got caught for."
Asked about his preincarceration attempts at drug rehabilitation, Dukes acknowledged his failure to complete two different treatment programs in 1980. He claimed to have completed the Serenity House program in 1981, but the record contradicted that claim. He "eventually" completed the New Day program later in 1981, only to relapse shortly after his discharge. Dukes explained that he "didn't want help" with his addiction at the time. When the District Attorney asked whether Dukes believed himself to be an addict or an alcoholic "as he sits there today," Dukes unequivocally responded, "No" to both questions. Asked when he stopped being an addict, he admitted he was "a recovering addict" who had been clean and sober "since 1997." On follow-up, he conceded that he "took a drink" after his ex-wife died in 1999.
The District Attorney asked why Dukes stopped going to NA and AA between 1995 and 2003. Dukes answered that he spent "probably five years of that time" locked in a cell, "circumstances beyond my control." Asked whether he had done any self-study during that time, he replied that he had "read some books."
These "circumstances" are not explained by the record before us, which simply notes that Dukes was transferred in 1996 to High Desert State Prison "due to disciplinary and poor work performance." The record reflects that his classification score [CS] "increased to 75 by 1997, before steadily declining to the current [in 2005] CS of 27."
The District Attorney asked whether Dukes had "given any thought" to the underlying cause of his threats to kill Sanchez. Dukes responded that he was "a monster" back then. "I am not the same person . . . . I'm a God-fearing man today. I would not, never hurt no one." Following up, the District Attorney asked why, "if there's been this change, . . . did [Dukes] threaten to kill a cellee" in 2001? Dukes claimed the records weren't "exactly true." "[The psych tech] came up and asked me . . . how me and my cellee were getting along, do I feel like committing suicide and I said, 'Yes, against my cellee,' and she ran off and the next thing I knew they were moving me."
Following up further, the District Attorney noted that in 2002, Dukes had been placed in "Ag Seg for safety and security" after reportedly incurring "drug debts . . . then attempted to pass on his drug debts to his former cellmate who was eventually assaulted as a result." "Can Mr. Dukes shed any light on that in terms of his statement about his, number one, being a changed person and, number two, having been clean and sober since 1999?" Dukes claimed his cellmate was assaulted "because of his mouth." "I . . . played no part in that . . . . [T]hey were not my drug debts."
Asked what would be "the greatest stressor" facing him if he were released, Dukes replied that "[t]he greatest challenge for me would be triggers. Going by some place that I had been before, people that I've known from the past pop up, dealing with them . . . ." He said he had a relapse plan. Asked how he knew "at this stage" that he would not fail again, Dukes answered, "I won't fail. I failed before, I will never fail again. I have a relapse plan . . . . I go to meetings, I got my sponsors, I'm not letting no one, myself down, I'm not letting no one down." He disagreed with Dr. Geca's judgment that he had "barely started his journey" into developing insight into his crime and its effects: "Not no more. I'm pretty well in my journey. I have considerable insight how people feel, self-empathy, I put empathy before my victims."
In his closing statement, Dukes told the Board he deserved a second chance. "I'm one of God's children. . . . I've been swept under the rug all my life. I have people that will help me out there. That's why I believe I deserve another chance. I think about these people I hurt all the time, you know, I put myself in their place. How their families think. Violence just ain't hurting people physically. Violence is a rippling effect, their families. That's why I believe I deserve another chance and I'm sorry that . . . I wasn't able to answer your questions right out. I've done a lot of time. If I could, I know you've heard this a million times but it's coming from my heart, if I could give back, I'd give back. I just believe in me. Have a little faith in me. I'm not going to hurt nobody again." Dukes told the Board, "I won't use drugs again. I hate drugs. Drugs have caused so much pain not only in myself, to people around me and I will, I will never use drugs again."
The Board found Dukes unsuitable for parole. It began by describing the factors disfavoring suitability, explaining that the commitment offense was "a consideration" in the decision. Dukes's prior criminality was also a factor but "you know, as we know, that can't change and it is what it is." The Board also noted his unstable juvenile history and his failure to profit from society's previous attempts to correct his criminality.
Of primary concern was the Board's belief that Dukes lacked "real insight" into his commitment offense and instead blamed his drug addiction. The Board acknowledged that his drug addiction "was a factor, there's no doubt about it." But "you're not in here . . . because you're a drug addict." His crimes were very violent; they were "sophisticated" and "well thought out." He "occupied a position of leadership" among his cohorts, moreover, and "induced others to participate." "[I]t wasn't like you were some strung out heroin addict, nodding off in the corner."
The Board asked again, "Why did you do these crimes?" There are "a lot" of heroin addicts on the streets "who manage to get drugs without committing all these violent crimes," the Board told him. "That you were scared, that makes absolutely no sense. [S]cared of what? What you inherited from your past, your father's death, beating and sexual molestation[?]" There was no evidence to substantiate those claims, and his siblings had not been affected by the trauma that he alleged occurred. "Then you said it was negative influences . . . . [Y]ou were immature, irresponsible, not caring, not . . . spiritual. All of those factors still do not explain why you would resort to such violence. If you don't really know why you did what you did, then that means that you still remain an unreasonable risk of danger to society . . . today." (Italics added.)
The Board also questioned Dukes's credibility. Asked if he was an addict, he had said no, adding only when pressed that he was recovering. He claimed he had been working hard on his recovery for the last nine years, but he had returned to NA only three years earlier and to AA only six years earlier.
The Board cited other "major issues" that suggested Dukes remained an unreasonable risk of danger: his work performance had deteriorated in 1996 (when he refused to work), he had "unsatisfactory to satisfactory" work grades in 1999 and 2000, and he was unassigned due to administrative segregation from 2001 to 2003. He had been cited for drug use in prison as recently as 2001 and had attempted to pass on a drug debt in 2002. The Board told him that given his long history of substance abuse history, none of this was "historical." "[I]t's not that long ago." The Board acknowledged that Dukes had made substantial improvement, "[b]ut the point is, it is recent in the eyes of this Panel. It's too recent to release you into society because it still appears[] you still are an unreasonable risk of danger." (Italics added.)
The record before the Board showed that two "128(b)" informational chronos reporting the 2001 and 2002 incidents had been placed in Dukes's file.
The Board also cited Dukes's psychological evaluation, which was not supportive of release. Impulsivity was an issue, as evidenced by his numerous 115's and 128-A's. Since he had struggled with his commitment to sobriety in prison, had been cited 10 times for controlled substance violations, and had only recently returned to NA and AA, there was a real concern that significantly easier access to illicit substances in the free community could increase his risk of recidivism.
The Board noted Dr. Geca's observation that Dukes could not explain why he had believed it was "okay" to rob and steal from others. "That shows a lack of insight. That's from '07, that's two years ago." He also had only "limited" insight into the effects of his crimes on others. Noting Dr. Geca's assessment that Dukes had "barely started on his journey," the Board also reminded him that he had had "a very difficult time" articulating why he thought he was ready for release, beyond stating that he had done a lot of time and deserved a second chance. The Board issued a three-year denial.
II. Superior Court Proceedings
Dukes challenged his parole denial in the superior court, which granted his habeas corpus petition and ordered the Board to conduct a new hearing. The court's 25-page opinion criticized the Board for stating, when it announced its decision, that the commitment offense was the " 'first' 'consideration' weighing against parole." "This was error," the court ruled, "because the Lawrence definition of due process does not allow the crime to have independent weight as an unsuitability factor without an articulated nexus." Referring to what it labeled "a pattern of Board practices," the court complained that "[d]espite specific directives, and unheeded advice, the Board remains entrenched in its Dannenberg[]approach to parole determinations even though Dannenberg was overruled. One might reasonably have expected that when the California Supreme Court reversed the authority the Board had been following, the practices, and even the regulations themselves, ought to have been revised so as to conform to the new rules. Because there has been little to no institutional modification of Board practices the result is that, in this case, the Board failed to provide the due process a parole suitability determination required."
In re Dannenberg (2005) 34 Cal.4th 1061 (Dannenberg).
The court also criticized the Board for mentioning Dukes's prior criminality and unstable social history along with his commitment offense. "[I]t is evident," the court declared, that "the Board was going down the list of § 2402(c) unsuitability factors and giving each of them independent weight." The court allowed that the Board had also "mentioned" "other pieces of evidence (e.g., the psychological report)." "However," the court continued, "there was no attempt to link any of the points together and instead the Board affirmatively stated they were each receiving various amounts of independent weight -- as though piling items on a scale as opposed to intellectually examining them for an interrelation and current relevance."
The court acknowledged that there was "some evidence to support the [Board's] conclusion that [Dukes's] insight is not optimal." But the court found "very little link" between the Board's concerns about Dukes's insufficient insight and his future dangerousness. Dukes committed his crimes "because he was a drug addict" and needed money to support his habit, the court wrote. He "is no longer a drug addict," the court asserted, and "to the extent he is still diagnosed with antisocial personality disorder this appears to be based on historical . . . factors." Quoting the Diagnostic and Statistical Manual of Mental Disorders, which was not included in the record before the Board, the court stated that antisocial personality disorder " 'may become less evident or remit as the individual grows older, particularly by the fourth decade of life.' " Given Dukes's age, the court concluded there was "little danger he will re-offend even if his insight and empathy is [sic] not perfect." "These are the considerations a nexus analysis requires," the court declared, "and which the Board did not undertake." The court concluded that the Board's "central error" ("giving the crime weight against parole in and of itself") and its "other errors" (giving his unstable social history and his prior criminality weight) could not be found harmless. The court vacated the Board's decision and remanded the matter for a new hearing "in accordance with due process."
The Acting Warden filed a timely notice of appeal and petitioned for a writ of supersedeas. We granted the petition and stayed the superior court's order pending appeal.
III. Discussion
A. Standard of Review
"[T]he judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law, but . . . in conducting such a review, the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation. If the decision's consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner's petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law." (In re Rosenkrantz (2002) 29 Cal.4th 616, 658 (Rosenkrantz).)
"Only a modicum of evidence is required. Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the [Board]. . . . [T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the [Board], but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious. It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole. As long as the [Board'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 [Board's] decision." (Rosenkrantz, supra, 29 Cal.4th at p. 677.)
"When a superior court grants relief on a petition for habeas corpus without an evidentiary hearing, . . . the question presented on appeal is a question of law, which the appellate court reviews de novo. [Citation.]" (In re Lazor (2009) 172 Cal.App.4th 1185, 1192 (Lazor); Rosenkrantz, supra, 29 Cal.4th at p. 677.)
B. Parole Suitability and Unsuitability Criteria
The general standard for a parole unsuitability decision is that "a life prisoner shall be found unsuitable for and denied parole if in the judgment of the [Board or the Governor] the prisoner will pose an unreasonable risk of danger to society if released from prison." (Regs., § 2402, subd. (a).)
"[C]ircumstances tending to establish unsuitability for parole are that the prisoner (1) committed the offense in an especially heinous, atrocious, or cruel manner;[] (2) possesses a previous record of violence; (3) has an unstable social history; (4) previously has sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (Cal. Code Regs., tit. 15, § 2402, subd. (c).)" (Rosenkrantz, supra, 29 Cal.4th at pp. 653-654, fn. omitted.)
An offense is considered "especially heinous, atrocious, or cruel" if it "was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering" or "[t]he motive for the crime is inexplicable or very trivial in relation to the offense." (Regs., § 2402, subd. (c)(1).)
"[C]ircumstances tending to establish suitability for parole are that the prisoner: (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his life, especially if the stress has built over a long period of time; (5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use upon release; and (9) has engaged in institutional activities that indicate an enhanced ability to function within the law upon release. (Cal. Code Regs., tit. 15, § 2402, subd. (d).)" (Rosenkrantz, supra, 29 Cal.4th at p. 654.)
C. Lawrence
Lawrence killed her lover's wife because her lover had chosen not to leave his wife for Lawrence. Lawrence shot her lover's wife multiple times and repeatedly stabbed her. She became a fugitive but surrendered 11 years later and was convicted of first degree murder. (In re Lawrence (2008) 44 Cal.4th 1181, 1192-1193 (Lawrence).)
During 23 years of imprisonment, Lawrence had a few administrative violations, but she was free of serious discipline. (Lawrence, supra, 44 Cal.4th at p. 1194.) Her psychological reports were troubling at first but improved over the years to the point that she was found to have no psychiatric or psychological disorder. (Lawrence, at pp. 1194-1195.) After about a decade in prison, a psychological report found she no longer posed a significant danger to public safety. Numerous psychological reports over the next decade made the same finding. (Lawrence, at p. 1195.) During that same decade, the Board three times found her suitable for parole, but in each instance the Governor reversed. (Lawrence, at pp. 1195-1197.) In 2005, the Board granted parole for the fourth time, and the Governor reversed again, reasoning that the commitment offense had been " 'carried out in an especially cruel manner and committed for an incredibly petty reason.' " (Lawrence, at p. 1200.)
Lawrence sought habeas relief in the Court of Appeal, which held that the Governor's decision was not supported by some evidence that she " 'presently represent[ed] an unreasonable risk to public safety if released on parole.' " (Lawrence, supra, 44 Cal.4th at p. 1201.) The court vacated the Governor's reversal and reinstated the Board's grant of parole. (Lawrence, at p. 1201.) The California Supreme Court affirmed the Court of Appeal's decision. (Lawrence, at pp. 1201, 1229.)
The high court's opinion in Lawrence explicitly recognized that "the core determination of 'public safety' under the statute and corresponding regulations involves an assessment of an inmate's current dangerousness." (Lawrence, supra, 44 Cal.4th at p. 1205.) Reconsidering its holding in Dannenberg, the court explained that it "presumed [in Dannenberg] that the evidence of egregiousness supported the ultimate determination that the inmate posed a threat to public safety, as opposed to merely providing support for the Board's or the Governor's conclusion that the crime was particularly aggravated." (Lawrence, at pp. 1207-1208.) The court concluded that this presumption was invalid, though the Rosenkrantz standard of review remained valid. "This [Rosenkrantz] standard [of review] is unquestionably deferential, but certainly is not toothless, and 'due consideration' of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision—the determination of current dangerousness." (Lawrence, at p. 1210.)
"[T]he statutory and regulatory mandate to normally grant parole to life prisoners who have committed murder means that, particularly after these prisoners have served their suggested base terms, the underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when there is strong evidence of rehabilitation and no other evidence of current dangerousness." (Lawrence, supra, 44 Cal.4th at p. 1211.) "[I]t is not the circumstance that the crime is particularly egregious that makes a prisoner unsuitable for parole—it is the implication concerning future dangerousness that derives from the prisoner's having committed that crime. Because the parole decision represents a prospective view—essentially a prediction concerning the future—and reflects an uncertain conclusion, rarely (if ever) will the existence of a single isolated fact in the record, evaluated in a vacuum, suffice to support or refute that decision." (Lawrence, at pp. 1213-1214.) "Accordingly, we conclude that although the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or postincarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety." (Lawrence, at p. 1214.) "Absent affirmative evidence of a change in the prisoner's demeanor and mental state, the circumstances of the commitment offense may continue to be probative of the prisoner's dangerousness for some time in the future." (Lawrence, at p. 1219.)
"[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. This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate's psychological or mental attitude." (Lawrence, supra, 44 Cal.4th at p. 1221.) "In sum, the Board or the Governor may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate's criminal history, 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. (Regs., § 2281, subd. (a).) Accordingly, the relevant inquiry for a reviewing court is not merely whether an inmate's crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor." (Lawrence, at p. 1221.)
Applying this standard to the Governor's decision to deny Lawrence parole, the court concluded that "[i]n light of petitioner's extraordinary rehabilitative efforts specifically tailored to address the circumstances that led to her criminality, her insight into her past criminal behavior, her expressions of remorse, her realistic parole plans, the support of her family, and numerous institutional reports justifying parole, as well as the favorable discretionary decisions of the Board at successive hearings—decisions reversed by the Governor based solely upon the immutable circumstances of the offense—we conclude that the unchanging factor of the gravity of petitioner's commitment offense had no predictive value regarding her current threat to public safety, and thus provides no support for the Governor's conclusion that petitioner is unsuitable for parole at the present time." (Lawrence, supra, 44 Cal.4th at p. 1226.)
"Our deferential standard of review requires us to credit the Governor's findings if they are supported by a modicum of evidence. (Rosenkrantz, supra, 29 Cal.4th at p. 658.) This does not mean, however, that evidence suggesting a commitment offense was 'especially heinous' or 'particularly egregious' will eternally provide adequate support for a decision that an inmate is unsuitable for parole . . . . When, as here, all of the information in a postconviction record supports the determination that the inmate is rehabilitated and no longer poses a danger to public safety, and the Governor has neither disputed the petitioner's rehabilitative gains nor, importantly, related the commitment offense to current circumstances or suggested that any further rehabilitation might change the ultimate decision that petitioner remains a danger, mere recitation of the circumstances of the commitment offense, absent articulation of a rational nexus between those facts and current dangerousness, fails to provide the required 'modicum of evidence' of unsuitability." (Lawrence, supra, 44 Cal.4th at pp. 1226-1227.)
"Accordingly, under the circumstances of the present case—in which the record is replete with evidence establishing petitioner's rehabilitation, insight, remorse, and psychological health, and devoid of any evidence supporting a finding that she continues to pose a threat to public safety—petitioner's due process and statutory rights were violated by the Governor's reliance upon the immutable and unchangeable circumstances of her commitment offense . . . . Accordingly, the Governor's decision is not supported by 'some evidence' of current dangerousness and is properly set aside by this court." (Lawrence, supra, 44 Cal.4th at p. 1227.)
The court noted the limited nature of its holding. "In some cases, such as those in which the inmate has failed to make efforts toward rehabilitation, has continued to engage in criminal conduct postincarceration, or has shown a lack of insight or remorse, the aggravated circumstances of the commitment offense may well continue to provide 'some evidence' of current dangerousness even decades after commission of the offense." (Lawrence, supra, 44 Cal.4th at p. 1228.)
D. Shaputis
The California Supreme Court's decision in In re Shaputis (2008) 44 Cal.4th 1241, 1247-1248 (Shaputis) provided a counterpoint to Lawrence and explained how the egregious nature of the commitment offense could combine with other evidence to demonstrate the prisoner's current dangerousness despite the passage of a long period of time, thereby supporting a decision to deny parole.
Shaputis murdered his second wife by firing a single shot from a handgun into her neck at close range. (Shaputis, supra, 44 Cal.4th at pp. 1247-1248.) He claimed the shooting was an accident, which the evidence overwhelmingly refuted. (Shaputis, at p. 1249.) He had a long history of domestic violence, including violence against his first wife and daughters and many years of violent abuse of, and threats toward, his second wife before her death. (Shaputis, at pp. 1246-1247.) His prior criminal conduct included a sexual assault on his daughter. Shaputis also had a history of alcohol abuse and was intoxicated on the night of the murder. Although he acknowledged being an alcoholic, "he considers himself to be a 'mellow . . . outgoing' drinker." (Shaputis, at p. 1248.) He remained discipline free throughout his incarceration, but psychological reports indicated that there was a " 'schizoid quality to his interpersonal relationships.' " (Shaputis, at pp. 1249-1251.)
The Board denied parole in 2004 based on the egregiousness of the offense and his history of unstable relationships. (Shaputis, supra, 44 Cal.4th at pp. 1250-1251.) Shaputis petitioned for a writ of habeas corpus, and the Court of Appeal ordered a new hearing at which the Board could base a denial of parole only on new or different evidence. The Board reluctantly granted parole. The Governor reversed, finding that Shaputis remained a danger to society due to the aggravated nature of the crime, which included premeditation, and his lack of insight into both the murder and the years of domestic violence that preceded it. (Shaputis, at pp. 1251-1253, 1255.) The Court of Appeal granted Shaputis's writ petition, and the California Supreme Court granted review. (Shaputis, at pp. 1253-1254.)
On review, the California Supreme Court reiterated the Rosenkrantz standard of review it had applied in Lawrence. (Shaputis, supra, 44 Cal.4th at p. 1258.) The court distinguished Lawrence. "This is not a case like Lawrence . . . in which the commitment offense was an isolated incident, committed while petitioner was subject to emotional stress that was unusual or unlikely to recur. [Citation.] Instead, the murder was the culmination of many years of petitioner's violent and brutalizing behavior toward the victim, his children, and his previous wife. [¶] The record establishes, moreover, that although petitioner has stated that his conduct was 'wrong,' and feels some remorse for the crime, he has failed to gain insight or understanding into either his violent conduct or his commission of the commitment offense. Evidence concerning the nature of the weapon, the location of ammunition found at the crime scene, and petitioner's statement that he had a 'little fight' with his wife support the view that he killed his wife intentionally, but as the record also demonstrates, petitioner still claims the shooting was an accident. This claim, considered with evidence of petitioner's history of domestic abuse and recent psychological reports reflecting that his 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 petitioner remains dangerous and is unsuitable for parole." (Shaputis, at pp. 1259-1260, fn. omitted.)
E. The Case Before Us
The Acting Warden contends the superior court's order must be reversed because some evidence supports the Board's decision that Dukes remains currently dangerous. We agree.
The Board's conclusion that Dukes remained currently dangerous was based primarily on his insufficient insight into the commitment offense and its underlying causes, his inconsistent participation in substance abuse treatment programs, and his questionable credibility, especially concerning his continued use of drugs and alcohol in prison.
Some evidence supports the Board's finding that Dukes had only "limited" insight into his crimes and their causes. Dr. Geca noted that although he had "utilized a number of resources" to gain insight into his offenses, he understood the seriousness of his criminal behavior "only to some extent." He could not explain why he once believed it was "okay" to steal from and rob others and after "several different attempts," had to concede, " 'I really don't know.' " He had only a "perfunctory" comprehension of what his victims might have experienced, focusing instead on how his criminality had affected himself and his family. Dr. Geca concluded that he had "barely started" on his journey to develop insight.
Dukes's insight into the underlying causes of his offenses was equally limited. He insisted that his crimes were entirely motivated by drugs, but he could not satisfactorily explain what distinguished his addiction from the addictions of others with far less extensive and violent criminal histories. Given the sophistication of his crimes, the Board could reasonably have concluded that his addiction was only partly to blame for his criminal behavior and that he needed to understand what other factors had also contributed to it. Dukes's statements at the hearing confirmed that he had not yet done so. He could not explain why he had threatened to kill Sanchez. And while he claimed to have done "an inventory" of himself, he could not explain what character defects had caused him to make the choices he had made. There was more than a modicum of evidence that Dukes lacked insight into his crimes and their underlying causes. (Rosenkrantz, supra, 29 Cal.4th at p. 676.)
Some evidence also supports the Board's concerns about Dukes's credibility and his ability to abstain from drugs and alcohol if released. His credibility was initially called into question by his excuses about his missing diploma, his entirely unsupported claims about childhood beatings and sexual abuse, and his statements about getting his substance abuse under control. He flatly asserted that he no longer considered himself an addict or an alcoholic, adding only when pressed that he was recovering. He told the Board he had been clean and sober since 1997 but when pressed, conceded that he had taken a drink in 1999 and that he had been placed in administrative segregation as recently as 2002 for reportedly incurring "drug debts." He claimed he had been working hard over the previous nine years to battle his addictions, but the evidence showed he had returned to NA only three years earlier. These events were "well within recent history," the Board told him.
The Board concluded that Dukes's lack of sufficient insight made him currently dangerous. Some evidence supports that conclusion. As the Board told Dukes at the hearing, "[i]f you don't really know why you did what you did, then that means that you still remain an unreasonable risk of danger to society . . . today." In our view, Dukes's lack of insight is in itself some evidence that he " 'continues to pose an unreasonable risk to public safety.' " (Shaputis, supra, 44 Cal.4th at pp. 1255, 1260.) But additional evidence supports the Board's conclusion here. The interrelation of Dukes's insufficient insight, his ongoing struggles with substance abuse in prison, his long hiatus from and only recent return to NA and AA, his unsupportive psychological evaluation, and his questionable credibility provide much more than the "modicum" of evidence the law requires. (Rosenkrantz, supra, 29 Cal. 4th at pp. 676-677.)
This is not a case like In re Powell (2010) 188 Cal.App.4th 1530 (Powell), on which Dukes erroneously relies. Powell, who had a key to his ex-girlfriend's house, found her in bed with another man and beat them both to death with a baseball bat. He was convicted of two counts of second degree murder in 1982. In 2009, the Board found him unsuitable for parole based in part on a lack of insight, as evidenced by statements he allegedly made about not intending to hit anybody. The Court of Appeal granted his petition for a writ of habeas corpus, finding no evidence in the record to support that finding. (Powell, at pp. 1540-1541.)
Dukes's reliance on In re Calderon (2010) 184 Cal.App.4th 670 is misplaced. (Cal. Rules of Court, rule 8.1115.) It was depublished on October 13, 2010.
Powell is factually distinguishable. The record in that case did "not demonstrably show[]" a lack of insight while here, by contrast, even the superior court acknowledged that it did. (Powell, at p. 1542.) Unlike Dukes, Powell had consistently participated in substance abuse treatment since 1988 and " 'essentially mastered' " his alcohol problem. (Powell, at p. 1535.) "[N]umerous" psychologists who evaluated Powell agreed, moreover, that he had "dramatically changed his attitude and his behavior," (id. at 1539), and his risk of future violence had been "consistently described," since 1989, as " 'below average,' 'significantly below average,' and a 'low risk.' " (Powell, at p. 1535.)
Here, the superior court acknowledged that the record contained "some evidence to support the conclusion that [Dukes's] insight is not optimal." The court should have stopped there. (Rosenkrantz, supra, 29 Cal.4th at pp. 676-677.) Weighing the evidence and resolving any conflicts was the Board's task, not the court's. (Rosenkrantz, at p. 677.) "It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole." (Ibid.) Where, as here, the record reflects that the Board duly considered 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 [Board's] decision." (Rosenkrantz, at p. 677.)
IV. Disposition
The superior court's June 10, 2010 order is reversed, and the court is directed to enter a new order denying Dukes's habeas corpus petition.
Mihara, J. WE CONCUR:
Bamattre-Manoukian, Acting P. J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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