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In re Garbutt

California Court of Appeals, Second District, Fourth Division
Apr 21, 2009
No. B211509 (Cal. Ct. App. Apr. 21, 2009)

Opinion

NOT TO BE PUBLISHED

ORIGINAL PROCEEDINGS in Habeas Corpus. Los Angeles County Super. Ct. No. BH004938, Peter Paul Espinoza, Judge.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Jessica Blonien and Kathleen R. Frey, Deputy Attorneys General, for Appellant.

Marilee Marshall & Associates, Inc. and Marilee Marshall for Respondent.


WILLHITE, J.

In May 2007, the Board of Parole Hearings (the Board) denied parole to petitioner Dennis Garbutt for a period of three years. Petitioner filed a petition for writ of habeas corpus in the superior court. The court granted the petition in part, finding that “some evidence” supported the denial of parole, but not the deferral of parole consideration for three years. The court ordered the Board to conduct a new hearing to determine the length of the parole denial. The Board appeals, and we reverse.

PROCEDURAL AND FACTUAL BACKGROUND

Petitioner’s Commitment Offense

In September 1984, petitioner (then 18 years old) was sentenced to a term of 27 years to life following his guilty plea to first degree murder (Pen. Code, § 187, subd. (a)) with personal use of a firearm (§ 12022.5). The court dismissed an additional charge of robbery (§ 211) and a robbery-murder special circumstance (§ 190.2, subd. (a)(17)).

All undesignated section references are to the Penal Code.

As set forth by the Board at its May 2007 hearing, and undisputed by petitioner, the facts of his crime were as follows. “‘On February 22nd, 1984, [petitioner],... his companion Billy Morgan, and others discussed committing a robbery. They went to a factory parking lot at 333 South Hill Street, where they came upon the victim, Peter Short, going to his vehicle. They accosted the victim, at which time [petitioner] was in possession of a shotgun. The victim allegedly grabbed the gun... and it was fought over. The gun went off and the victim was hit and fatally wounded.

“‘[Petitioner] and another companion left in a companion’s vehicle. [C]ompanion Billy Morgan took the victim’s car and briefcase. On February 23rd, 1984 police officers on patrol responded to a radio call concerning car strippers at 861 West Second Place. Upon their arrival, they saw two black males run away from a 1979 Toyota. Another black male and [petitioner] were noted to be in the front passenger section of the vehicle and appeared to be attempting to remove the radio from the dash. Officers ran the vehicle license and received information that the vehicle had been taken in a [robbery/murder] the previous day.

“‘Officers detained [petitioner] on the indicated charge. Companion Billy Morgan was arrested the following day on the same charges. The victim was a 39 year old businessman who was a partner in a garment cutting business at 333 South Hill Street. He was a native of England.’”

“‘[Petitioner] admits to the events leading up to the murder of the victim in this matter [as] essentially as outlined in the arrest report. He indicates he had absolutely no intention of hurting anybody during the course of the robbery, but accidentally shot the victim.’”

In prison psychological evaluations, petitioner took full responsibility for his commitment offense, and expressed remorse. He stated that one of his accomplices gave him a shotgun, which he was to point at the robbery victim. The victim put his hand on the barrel of the gun. Petitioner pulled the gun away, and his “finger must have hit the trigger.”

Prior History

Petitioner had no criminal record before the commitment offense. Born in Belize, he came to the United States in the Eighth grade, where he lived with his mother, stepfather, and three brothers in Los Angeles. Because of his arrest for the commitment offense, he left high school at age 17, and had no employment history.

According to a 1991 evaluation, he told the examining psychologist that he and his crime partners were drinking a little bit before the crime. In 1997, he told another examining psychologist that he drank alcohol moderately before his incarceration. He denied abusing drugs, though he admitted having smoked marijuana occasionally. More recently, in evaluations in 2003 and 2007, he denied any history of alcohol or drug abuse, but stated that he experimented with beer at age 16 and also with marijuana.

Institutional History

Petitioner had no significant disciplinary history in prison (his last citation, in 1998, was for grooming), and no history of violence. In 1985, he obtained his GED. He had taken anger management courses, and had participated in Narcotics Anonymous since 2004. He had obtained vocational certificates in welding and landscaping and had also participated in textile and culinary activities. In the 2007 report, the examining psychologist gave petitioner a Global Assessment Functioning (GAF) score of 70. The GAF is a measure of how well the inmate will function in society.

Parole Plans

According to the most recent parole suitability report, prepared in 2007, on release petitioner planned to live with his older brother or “other family” members in Los Angeles, and to look for a job. As stated in the 2007 evaluation, petitioner’s “parole plans are somewhat weak. He has no employment offers and no specific work goals or plan. His plan to live with his brother or ‘other family’ also needs solidifying.”

Risk for Violence

The psychologist who authored the 2007 evaluation concluded that petitioner was a “minimal risk,” but emphasized that “[h]e needs to develop clear parole plans. It is hoped that [petitioner] will work on this area. I do believe that with firm parole plans [petitioner] will be a good candidate for parole consideration in the very near future.”

The Parole Hearing

At the 2007 parole hearing, the Board reviewed petitioner’s commitment offense, his prior history, his institutional history, and the parole consideration reports. Among other things, the Board asked petitioner about his participation in Narcotics Anonymous since 2004. Petitioner was unable to recite the twelve steps of recovery. He denied that he was involved in any drinking or smoking marijuana before the commitment crime.

The Board also inquired about petitioner’s parole plans. The Board noted that petitioner had an INS hold, and that he likely would be deported to Belize. Petitioner stated that he had family members in Belize, but did not know where they were located. His last correspondence with anyone from Belize was from his grandmother, who had died four or five years earlier. He stated that his mother had told him that she put money in a credit union in Belize for him. He had a letter from her, but had not brought it to the hearing. If paroled to Belize, he intended to look for work.

If paroled in California, petitioner planned on looking for work. One of his younger brothers, age 31, had written to the Board, and offered spiritual and economic support. Petitioner intended to live with his brother for a while and then seek his own residence. The brother did not believe petitioner was guilty of the commitment offense. Petitioner explained: “I would like to keep him thinking that... because I’m the first born and most of them look up to me.... [W]hen I left, he was still a child and he [did not have] the full information of what I’m in prison for and I’d like to keep it that way so he can stay focused.”

The Board’s Decision

The Board acknowledged petitioner’s positive achievements. He obtained his GED in 1985, he participated in Literacy lab 2000, and he was trained in landscaping and welding (obtaining state certification in the latter). He had participated in a variety of work experiences, including grounds crew, dining hall, porter, textiles, sanitation, and sheet metal. He also participated in self-help counseling – Narcotics Anonymous, stress management, creative conflict resolution, and relationship awareness. Petitioner had no prior record. The psychologist who authored the 2007 report considered him to be a minimal risk for violence.

Nonetheless, the Board concluded that petitioner would pose an unreasonable risk of danger to society, and that it was not reasonable to expect that parole would be granted at a hearing during the next three years. The Board found that the commitment offense was carried out in a cruel and callous manner. Petitioner tended to downplay his involvement, stating that he did not intend to harm anyone, even though he was the one armed with a shotgun. Moreover, although petitioner hoped that he could live with his brother in Los Angeles upon release, he had not admitted to the brother that he was guilty of the commitment offense, and the brother asserted petitioner was innocent.

As to his institutional behavior, the Board noted that although petitioner had completed his GED in 1985, he had not participated in educational programs since then. Also, although he had participated in Narcotics Anonymous for the last four years, the Board questioned his level of participation, because he could not recite any of the steps of recovery.

His most recent psychological evaluation gave him a Global Assessment Functioning (GAF) score of 70. The GAF score is a measure of how well the inmate will function in society. Petitioner’s score of 70, according to the Board, “is not very good... like a C minus,” and had actually decreased since his 2003 evaluation.

The Board found petitioner’s parole plans unsatisfactory. He had an INS hold, and would likely be deported to Belize upon his release. Petitioner stated that he had family in Belize. He believed that his mother had left him a savings account there, and that he could find work. However, the Board noted that there was no substantiation of petitioner’s claims. The Board informed petitioner that he “need[ed] to get some letters from... family in Belize that offer... a place to live [and] possible employment,” and to obtain more information about the savings account. With regard to the possibility of petitioner living with his brother, the Board directed petitioner to have his brother write another letter to the Board, and that petitioner “need[ed] to level with him.”

The Habeas Corpus Petition

Petitioner filed a petition for writ of habeas corpus in the superior court. The introduction to the petition stated that it “challeng[ed] the [Board’s] 2007 decision to deny parole for three years.” In the body of the petition, petitioner recited the facts relating to the Board’s decision. Petitioner argued, inter alia, that the Board’s decision violated his due process rights because “the Board’s conclusion that he currently poses [an] unreasonable... danger is unsupported by any evidence and was arbitrary.”

The superior court issued an order to show cause on the petition. Following the filing of the Board’s return and petitioner’s traverse, the court concluded that some evidence supported “the Board’s finding that the commitment offense was carried out in a dispassionate and calculated manner,” and the Board’s finding “that petitioner did not have current documentation of viable residential and employment plans for parole.” Thus, the court upheld the Board’s decision insofar as it denied parole.

However, the court found that the record did not support a determination that petitioner will not be suitable for parole for three years. The court reasoned: “[P]etitioner has no prior criminal or substance abuse history. He has received five CDC 115’s since entering prison; however, none of these were for violence. His last was in 1998 for grooming. Since his incarceration began, petitioner has earned his GED and two vocational certificates. In finding that there is some evidence to support the Board’s denial based on the commitment offense, the Court acknowledges that after time, the predictive value of the commitment offense diminishes such that it may no longer be indicative of a present threat to society. [Citation.] Considering the length of time since the commitment offense, there is no evidence to support the Board’s determination that it is not reasonable to expect petitioner to be found suitable for parole on this basis. Additionally it is reasonable that petitioner may be able to make adequate plans for parole in less than three years. Therefore, the Court remands the order to the Board to reconsider its decision and to conduct a new hearing to consider the length of the denial in accordance with the requirements of due process.”

DISCUSSION

The Board first contends that the petition for writ of habeas corpus did not challenge the decision to defer petitioner’s next parole hearing for three years, and did not request a reconsideration of that issue by the Board. Rather, petitioner only challenged the Board’s decision finding him unsuitable for parole. Therefore, according to the Board, the superior court did not have the power to grant the petition in part and order the Board to reconsider its decision to defer parole consideration. We disagree.

“The court will determine the appropriate disposition of a petition for writ of habeas corpus based on the allegations of the petition as originally filed and any amended or supplemental petition for which leave to file has been granted. [¶]... When an order to show cause does issue, it is limited to the claims raised in the petition and the factual bases for those claims alleged in the petition. It directs the respondent to address only those issues.” (In re Clark (1993) 5 Cal.4th 750, 781, fn. 16.)

Here, the petition challenged “the [Board’s] 2007 decision to deny parole for three years,” and alleged facts sufficient to put in issue both the denial of parole and the deferring of parole consideration for three years. Therefore, the superior court’s order to show cause encompassed both issues, and the court had the authority to grant the limited relief it did.

The Board next contends that some evidence supports its deferral of parole consideration for three years. We agree.

At the time of petitioner’s 2007 parole hearing, section 3041.5, subdivision (b)(2), provided that after a parole denial, the Board “shall hear each case annually thereafter, except the board may schedule the next hearing no later than the following:... [¶] (B) Up to five years after any hearing at which parole is denied if the prisoner has been convicted of murder, and the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding in writing.” (West’s Ann. Cal. Codes, Vol. 51B, 2009 Supp., pp. 164-165.)

“The Board’s decision to defer annual parole consideration hearings is guided by the same criteria used to determine parole suitability. (Cal. Code Regs., tit. 15, § 2270, subd. (d); see id., § 2281; [citations].) The reasons for postponing the next scheduled parole hearing need not be completely different from the reasons for denying parole suitability. [Citation.] Rather, the only requirement is an identification of the reasons that justify postponement. [Citations.]” (In re Lugo (2008) 164 Cal.App.4th 1522, 1537-1538 (Lugo).)

The court reviews the Board’s decision under the “some evidence” standard. (Lugo, supra, 164 Cal.App.4th at p. 1537 .) Under this standard, as recently explained by In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), “a reviewing court’s inquiry must extend beyond searching the record for some evidence that the commitment offense was particularly egregious and for a mere acknowledgment by the Board or the Governor that evidence favoring suitability exists. Instead, under the statute and governing regulations, the circumstances of the commitment offense (or any of the other factors related to unsuitability) establish unsuitability if, and only if, those circumstances are probative to the determination that a prisoner remains a danger to the public. It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public. [¶] Accordingly, when a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings.” (Lawrence, supra, 44 Cal.4th at p. 1212, italics deleted; see Shaputis, supra, 44 Cal.4th at p. 1254.)

In the instant case, the Board’s decision to deny parole based on its finding that petitioner remains a danger is not in dispute. Because a habeas corpus petitioner has no right to appeal the denial of the writ (People v. Gallardo (2000) 77 Cal.App.4th 971, 983), petitioner could not appeal from that portion of the superior court’s ruling denying his request for immediate parole. His only remedy to challenge that portion of the ruling was to file a new petition for writ of habeas corpus in this court, which he did not do. (Ibid.) This proceeding is a People’s appeal from the portion of the superior court’s ruling ordering the Board to reconsider its deferral of parole consideration for three years. To the extent petitioner challenges the Board’s determination that he remains a danger – and most of his brief is such an attack – he has forfeited the claim by failing to file a new habeas corpus petition in this court.

Thus, for purposes of this appeal, it is undisputed that some evidence supports the Board’s determination that petitioner remains a danger. The only issue is whether that evidence supports the Board’s decision to defer parole consideration for three years. In making its determinations, the Board relied on the following factors. First, the Board found that the commitment offense was carried out in a cruel and callous manner, and that petitioner tended to downplay his involvement. Although he armed himself with a shotgun before the robbery, he stated that he did not intend to harm anyone. Further, although he hoped if released to California he could live with his brother in Los Angeles, he had misled the brother into believing that he was innocent.

Second, the Board questioned petitioner’s efforts at self help. He had completed his GED in 1985, but had he had not participated in educational programs since then. Also, although he had participated in Narcotics Anonymous for the last four years, he could not recite any of the steps of recovery. His most recent psychological evaluation gave him a GAF score of 70, which was, according to the Board, “not very good... like a C minus,” and had actually decreased since his 2003 evaluation.

Finally, the Board found petitioner’s parole plans unsatisfactory. He had an INS hold, and would likely be deported to Belize upon his release, but had no realistic parole plans. The Board informed petitioner that he “need[ed] to get some letters from... family in Belize that offer... a place to live [and] possible employment,” and to obtain more information about the savings account left by his mother.

These factors justified not only denying parole, but also the determination under former section 3041.5, subdivision (b)(2)(B), “that it is not reasonable to expect that parole would be granted at a hearing during” the next three years.

Especially important in this context is petitioner’s lack of realistic parole plans. In determining whether and when a prisoner should be paroled, the Board may consider whether the inmate has realistic plans for parole. (In re Andrade (2006) 141 Cal.App.4th 807, 815 (Andrade); see Cal. Code Regs., tit. 15, § 2402, subd. (d)(8).) The absence of realistic parole plans obviously bears a close relationship to an inmate’s future dangerousness, because without a place to live and means of legitimate employment when released, an inmate is much more likely to engage in criminal activity. For an inmate, like petitioner, who faces deportation, the relevant consideration is whether he or she has realistic parole plans for the country to which he or she will be deported. (Andrade, supra, 141 Cal.App.4th at p. 818 [absent circumstances showing deportation is uncertain, inmate subject to deportation need only have realistic plans for country of deportation].)

Here, petitioner was likely to be deported to Belize, and thus the Board was entitled to consider whether he had realistic parole plans in that country. On appeal, petitioner contends that his parole plans for Belize are adequate, and that even if they are not, “[t]here is no reason it should take three years for him to be able to provide the Board with some verification of his plans.” The record, however, shows that although petitioner stated that he had family members in Belize (cousins, aunts, and uncles), he did not know where they lived. His most recent correspondence with anyone from Belize was a letter from his grandmother who had died four or five years earlier. After her death, “all ties, all correspondence, [was] broken off.” He stated that his mother had told him that she put money in a credit union in Belize for him. He did not know the balance of the account, though he believed his mother had deposited “10,000 back home.” He had no employment plans, but intended to look for work as a welder or in landscaping. However, because he had not been back to Belize since he left, he did not know what to expect there.

The Board could reasonably view these parole plans to be unrealistic – indeed, they appear nonexistent. Further, the Board could reasonably conclude that it would take petitioner three years to obtain realistic plans. He had to locate his relatives in Belize, reestablish contact with them, make reasonable plans for residence and employment, and demonstrate those plans to the Board -- all while he remained incarcerated. As we have noted, it is undisputed for purposes of this appeal that some evidence supports the Board’s finding that petitioner remains a danger. Given the inadequacy of petitioner’s parole plans and the reasonable assessment that it would take petitioner three years to arrange realistic plans, we conclude that some evidence also supports the Board’s determination that it is not reasonable to expect that parole would be granted at a hearing in less than three years.

DISPOSITION

The superior court’s order granting the petition for writ of habeas corpus in part and instructing the Board to conduct a new hearing to determine the length of parole deferral is reversed. The Board’s determination is reinstated in full.

I concur: EPSTEIN, P. J.,

MANELLA, J., Dissenting

This case hinges on a determination whether there is “some evidence” to support the Board’s conclusion that petitioner would be unable to demonstrate his suitability for parole in less than three years. I believe there was not. Accordingly, I would affirm the decision of the trial court ordering the Board to conduct a new hearing to determine the appropriate length of the parole denial.

Of the factors relied upon by the Board, the first two cited by the majority – his characterization of the offense (to the Board and his family) and his efforts at self-help – I find neither supportive of the inference that petitioner would be unsuitable for parole in less than three years. Petitioner has consistently accepted responsibility for his conduct and has been described since at least 2000 as “appropriately remorseful.” As for his failure to memorize the steps of a program designed to curb drug abuse, this is irrelevant in light of the absence of evidence that petitioner is or has ever been a substance abuser.

More relevant, as the majority notes, are his parole plans. In light of petitioner’s probable deportation to Belize, the Board was entitled to focus on his plans in that country. However, I find nothing in the record to support the conclusion that it would take petitioner at least three years to provide, as the Board required, “letters from... family in Belize that offer... a place to live [and] possible employment,” or a statement from the credit union account established by his mother. With such documentation, the legitimate reasons for the Board’s deferral of parole would effectively disappear. Because I conclude the record did not contain “some evidence” justifying the Board’s determination that petitioner would be unable to demonstrate his suitability for parole in less than three years, I would affirm the trial court’s order.


Summaries of

In re Garbutt

California Court of Appeals, Second District, Fourth Division
Apr 21, 2009
No. B211509 (Cal. Ct. App. Apr. 21, 2009)
Case details for

In re Garbutt

Case Details

Full title:In re DENNIS GARBUTT, On Habeas Corpus.

Court:California Court of Appeals, Second District, Fourth Division

Date published: Apr 21, 2009

Citations

No. B211509 (Cal. Ct. App. Apr. 21, 2009)