Opinion
B226944
08-29-2011
In re ROBERT GORDON, on Habeas Corpus.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Julie L. Garland, Senior Assistant Attorney General, Jessica N. Blonien and Krista L. Pollard, Deputy Attorneys General, for Appellant Board of Parole Terms. Law Office of Tracy Lum and Tracy Renee Lum for Petitioner Robert Gordon.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BH006573)
APPEAL from an order of the Superior Court of Los Angeles County, Patricia Schnegg, Judge. Reversed.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Julie L. Garland, Senior Assistant Attorney General, Jessica N. Blonien and Krista L. Pollard, Deputy Attorneys General, for Appellant Board of Parole Terms.
Law Office of Tracy Lum and Tracy Renee Lum for Petitioner Robert Gordon.
This is an appeal from an order granting the petition for writ of habeas corpus of inmate Robert Gordon and directing the Board of Parole Terms (Board) to hold a new parole hearing and find Gordon suitable for parole unless new or different evidence indicates current dangerousness. It is well settled that "[i]t 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.' ([People v.] Rosenkrantz [(2002)] 29 Cal.4th [616,] 677 [(Rosenkrantz)].)" (In re Singler (2008) 169 Cal.App.4th 1227, 1238-1239.) Because the necessary modicum of evidence exists in the record to support the Board's conclusions that the commitment offense was especially heinous and Gordon lacks insight into the causative factors of his conduct, we reverse.
I. Background—Proceedings on the Commitment Offense
Gordon was convicted by jury of the first degree murder (Pen. Code, § 187) and robbery (§ 211) of Larry Goolsby, a fellow drug dealer whom Gordon believed owed him money. The jury found true a special circumstance allegation of murder during the commission of the robbery (§ 190.2, subd. (a)(17)(A)) and allegations that Gordon personally used a firearm in the commission of the offenses (§§ 1203.06, subd. (a)(1), 12022.5). The trial court struck the special circumstance finding pursuant to section 1385. On February 24, 1982, Gordon was sentenced to 27 years to life in state prison on the murder conviction with use of a firearm.
All statutory references are to the Penal Code, unless otherwise indicated.
On direct appeal, the judgment was affirmed, but modified to impose a section 654 stay of the punishment for the robbery.
II. Versions of the Commitment Offense
The record contains multiple iterations of Gordon's life offense. Because resolution of this appeal depends on Gordon's insight into the life crime, we set forth the various versions below.
A. The Probation Report
The probation report provided the following statement of facts. "According to available information, on March 7, 1981 . . . , Joyce Goolsby was at the apartment she shared with her brother, the victim, Larry Goolsby. . . . Ms. Goolsby was in the kitchen and her brother was in the living room watching television. [¶] At about 4:00 p.m. there was a knock at the front door and the victim admitted a man identified by Joyce Goolsby as the defendant. . . . The defendant and the victim had a conversation at the front door which the witness could not hear. After a short time, the defendant asked to use the bathroom. When he came out, he pulled a pistol from his waistband and said, 'This is a robbery.' He demanded the victim's wallet, which was given to him. He then herded the victim and the witness into the bathroom. The victim after a brief stay in the bathroom came out and started to struggle with the defendant over the gun. The witness ran to her bedroom. She then heard a shot, looked out, saw the victim and the defendant still struggling over the gun, went back in the bedroom and heard 'about two more' shots fired. She then heard her brother fall, looked out, and saw the defendant running out the front door. [¶] A number of people hanging around the front of the apartment heard the shots and saw the defendant running out with the pistol still in his hand. The victim was shot through the upper left arm, the bullet entering his chest. He was also shot in the back of the neck."
The probation reported included Gordon's account of the incident. "The guy (victim) owed him some money and told him to come pick it up. He then told him, 'little nigger, you sweat me in the morning and in the evening.' He reached for his gun, and they wrestled with the gun. The gun went off, killing him."
B. Prosecutor's and Trial Court's Statements at the Probation and Sentence Hearing
The prosecutor described how one of Goolsby's two gunshot wounds was to the center of the back of his neck at a downward angle, without a powder burn, indicating the shot was fired from 20 or more inches. The trial court said there was no way possible for the neck wound to have been accidental during a struggle over the gun, as argued by Gordon's counsel. The court described the evidence as overwhelming that Gordon killed Goolsby during the course of a robbery. The court believed Gordon fired the shot into the neck after Goolsby was already shot once, describing that shot as the "coup de grace."
C. The Court of Appeal Opinion Affirming the Judgment
The Court of Appeal summarized the facts as follows: "Defendant and the victim (Larry Goolsby) were acquainted and, according to defendant, both were engaged in traffic in narcotics. According to defendant, he was the person who directed possible purchasers to Goolsby, receiving compensation for such references. On the afternoon in question, defendant went to the apartment occupied by Goolsby and his sister. It is admitted that, during that visit, a fight occurred, in which Goolsby was shot. The People's case was that defendant had suddenly produced a gun, saying, 'This is a robbery,' took Goolsby's wallet, shot him, and left. Defendant contended he had gone to the apartment to collect unpaid commissions for sales made to persons recommended by him, that Goolsby resisted payment, and a fight occurred in which Goolsby was accidentally shot."
D. Gordon's Statement in the 1996 Psychological Report
Gordon was interviewed on June 11, 1996, by Peter M. Bradlee. "'The [gentleman's] life that I took, we had a business deal. We got into an argument over money. He was 6'3", 300 pounds. He pulled a gun. Being that I was shot before, I didn't want that to happen again; we tousled and he got shot. I'm deeply sorry for what I done. I can't bring him back but what I can do is help others to realize that that's not the way to live.'"
E. Gordon's Statement in the 1999 Board Report
"During an interview on December 4, 1995, Gordon stated he was young and an older guy propositioned him to sell drugs. According to him, as one could read in the court transcript, he pulled his gun to defend himself. He feels some remorse about the situation. He stated he is aware that it is not lawful for anyone to take anyone's life, but in this situation, he did what he had to do. At this age and time, he said, given the same situation, he would have done it differently."
F. Gordon's Statement in the 2002 Psychological Report
"He and the victim got into a confrontation over money. Both were armed. The victim was shot. According to the inmate, the victim was threatening him. In retrospect, the inmate felt he didn't have the right to take another's life. He expressed the desire to atone for the crime even though he believed the shooting occurred in self-defense."
G. Gordon's Statement in the 2008 Board Report
"Inmate Gordon stated he was young and an older guy propositioned him to sell drugs. According to Gordon, he pulled his gun and fired at Goolsby to defend himself. He feels some remorse about the situation. He said, given the same situation today, he would have done it differently."
H. Gordon's Statement in the Current Psychological Report
"I went to go to the house for drug money. A verbal altercation ensued. I didn't have a gun. He grabbed his gun out of his shoulder holster. We struggled and the gun went off when I was trying to get the gun out of his hand. We both fell back into the chair and the gun went off again. I hit him in the upper part of his body and I pushed him off of me. That is when I ran out of the house."
I. Description of the Shooting by Goolsby's Sister
Multiple Board reports provide the following description of the shooting from the perspective of Goolby's sister: "After a brief stay in the bathroom, the victim came out and struggled with Gordon over the gun. The witness ran into her bedroom and then heard a shot fired. She looked out of her bedroom and saw her brother and Gordon still struggling over the gun. She went back into her bedroom and heard 'about two more' shots fired. She then saw her bother fall to the ground and saw Gordon run out the front door."
III. The Current Board Hearing—January 2009
A. Initial Proceedings
At the commencement of the hearing, Gordon's counsel advised the Board that Gordon "will not discuss his social factors, his prior criminality, and the commitment offense, but he will stipulate that the facts that the Board has before them are true and correct." Counsel further told the panel that Gordon would speak regarding his feelings about the commitment offense and its impact and on his life and the lives of others, his programming and parole plans, and his psychological evaluation.
One panel member cautioned counsel and Gordon that if he "stipulates to the facts of the commitment offense based on the documents[,] there . . . is some contradictory information." Counsel replied that Gordon was stipulating to the version of the life offense in the most recent psychological evaluation, where he said "he did not intend to murder Mr. [Goolsby]." To make the record clear, and in light of the panel's concern, a panel member directly asked Gordon if he understood he would be stipulating to the version in the report prepared for the current hearing, to which Gordon responded, "Yes." The panel member again mentioned that "[w]e have some contradictory information about the circumstances." Gordon said, "Okay."
The panel incorporated various documents into the record, including the facts of the commitment offense as found in the appellate opinion and in the probation report. Also incorporated into the record were pages of the 2008 Board report and the statements of Gordon in the current psychological report. In response to an objection by Gordon's counsel to incorporation of the findings of the 2006 Board into the record, the presiding panel member stated the document would not be incorporated, but the Board "will use all prior decisions, which the Board has already reviewed and will review again in making a decision."
B. Questioning of Gordon
Under questioning regarding how he felt about the victim and the loss of his life, Gordon expressed deep sorrow for the wrong he committed, explaining he robbed the victim of the opportunity of being a good man and whatever he would do in his life. Gordon feels the hurt he caused every day, he realizes what he has done to be in prison, and would prefer it had been him instead of the victim, because there was no justification. Gordon expressed sorrow for hurting Goolsby and his family, to the taxpayers who have paid for his incarceration, to hurting everyone as a citizen, and for taking money from the budget that should go to children's education. He was young and allowed his stupidity to cause him to go in the wrong direction, looking at money, drugs, and material things. He made some bad choices for which he is deeply sorry. In looking back, Gordon was totally out of control.
Gordon had a problem with alcohol and marijuana before the life offense. The solution to those problems "is just don't do it." He has taken anger management courses and learned to defuse situations He has a job offer through his son-in-law in the music industry.
C. Criminal History and Institutional Conduct
Gordon had juvenile arrests for violating Vehicle Code section 10851 and Health and Safety Code section 11357. As an adult he was convicted of second degree misdemeanor burglary and sentenced to 365 days in county jail, violations of Health and Safety Code sections 11378 and 11357, and driving under the influence of drugs. Gordon was received in state prison on the life offense on March 2, 1982.
His classification score of 19 is the lowest possible. His last parole hearing, held on December 18, 2006, resulted in a two year denial. Gordon had two nonviolent 128's, the last being in 1991 for disobeying an order, and two 115's, the last one being in 1991 for abusing telephone privileges. His disciplinary record was positive, and his file contained multiple laudatory chronos and certificates of completion of programs.
The current psychological evaluation placed Gordon in the low range with regard to psychopathy and risk of future violence. His overall assessment of future violence is in the low range of risk in the population of convicted felons. This evaluation was consistent with other evaluations of dangerousness over the past 20 years. The report indicated no evidence of psychopathy. Gordon's behavior had been antisocial, but his minor record of discipline indicates the antisocial tendencies have diminished over the years.
D. Prosecutor's Argument
A Los Angeles County deputy district attorney took the position that Gordon is unsuitable for parole as he poses a current danger to the community. Gordon had been found by the jury to have committed a murder with special circumstances, although the trial court dismissed the special circumstance finding in the interest of justice. Gordon and Goolsby were drug dealers, with the latter owing money to Gordon. Gordon went to the residence where Goolsby lived with his sister and her small infant. The sister testified Gordon entered with a gun, robbed Goolsby of his wallet and money, and ordered the parties into the bathroom. Goolsby left the bathroom to confront Gordon. The sister heard gunshots and saw the two men struggling. Goolsby was shot in the back of the neck, but Gordon claimed it was self defense.
According to the prosecutor, Gordon told the Board in 2003, "Well, I didn't have a gun. I came in. I took the victim's gun actually away from him and I shot him in self-defense because I was scared to death of him. He was 360 pounds."
The prosecutor contended Gordon has not come to grips with the fact he murdered the victim in the course of a robbery. It was an execution style killing, not an act of self-defense, because the victim was shot in the back of the neck in a downward motion. Gordon's lack of insight and understanding makes him a risk today. Gordon's prior statements fly in the face of the physical evidence and his claim of self defense.
E. Argument of Gordon's Counsel
Gordon's counsel argued that nothing suggests Gordon poses a risk of danger. The commitment offense does not demonstrate current dangerousness. Gordon's motive in going to Goolsby's was to be paid, not to commit murder. The trial court stated at sentencing that the murder would not have occurred had Goolsby not exited the bathroom to engage Gordon in a physical confrontation. Counsel disputed the existence of "hard evidence" of an execution style murder. Gordon does not have a record of violence, he has been married 18 years, and he has not engaged serious misconduct in prison. Gordon is 52 years old, and the risk of violence declines after the age of 40. Gordon has received numerous commendations, has been free of institutional violence and has completed self-help courses.
F. Gordon's Statement to the Board
Gordon told the panel he is sorry for the past and those he had hurt, and he asked for a chance at life. He has done all that's been asked of him in prison. Gordon took the wrong path and would like a second chance. He would have been a much better person if he had a father for guidance.
G. Board Decision
The Board concluded Gordon was not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety. Gordon was given a three year denial. The denial was based on the commitment offense and Gordon's numerous statements which conflict with the official version. In the psychological report, Gordon described one shot and an accidental killing. As set forth in the December 2008 Board report, Gordon said he was young, an older guy propositioned him to sell drugs, and Gordon pulled his gun and fired at Goolsby to defend himself.
The Board concluded Gordon provided two conflicting versions of the offense— self-defense and an accident. The Board found the offense was heinous, atrocious and cruel. Petitioner knew the victim and had dealings with him. The crime could have injured Goolsby's sister and her child. It was calculated and dispassionate because defendant went there with a gun to commit a robbery and retrieve his money, which is a trivial motive. Gordon did not turn himself in, but instead was taken into custody after being found hiding in his mother's attic. He had an escalating pattern of criminal conduct including arrests as a juvenile for burglary, drug possession, driving under the influence, and he failed to profit from prior attempts to rehabilitate.
The Board believed Gordon minimized his conduct by saying he did not bring a gun and then saying he protected or defended himself. He continues to maintain the crime was an accident or self defense after conviction and appeal. Gordon is not credible about the crime and how it occurred. He lacks insight into the causative factors of his conduct as evidenced by his lack of understanding of the commitment offense and how those events are interrelated to the how the crime occurred. Gordon has taken inconsistent positions and did not address the crime at the hearing, as is his right. The panel is not convinced of his understanding of the nature and magnitude of his offense because he is in denial and minimizes his actions.
Gordon was commended for his discipline free behavior since 1991, including his optical training and self-help programs. The Board found his parole plans realistic and well thought out, with letters of support. A ten-year denial was not necessary because of Gordon's positive adjustment and programming, and his lack of extensive disciplinary history and assaultive behavior. His age reduces the risk of recidivism. One commissioner expressed the view that Gordon had not come to grips with what actually took place, what decisions he made, and what were his actions. Without Gordon understanding what he had done, no panel would be comfortable assuming he would make the right decisions in the community.
IV. Proceedings on Gordon's Petition for Writ of Habeas Corpus
Gordon filed a petition for writ of habeas corpus in the Los Angeles Superior Court, challenging the decision of the Board. The superior court granted the petition, finding the record did not contain "some evidence" to support the Board's determination that Gordon currently presents an unreasonable risk of danger to society, rendering him unsuitable for parole release. The court found that Gordon had admitted in his 2008 hearing that he had pulled his own gun and fired at the victim to defend himself. At the 2009 hearing petitioner took responsibility for the murder and expressed remorse.
The trial court found no evidence the offense was carried out in a dispassionate and calculated manner, as it occurred during a struggle. This was no more aggravated than any other first degree murder. There was some evidence to find the motive for the offense, a dispute over money, was trivial. The Board properly considered Gordon's prior record, but because it did not involve the infliction or attempted infliction of serious injury, it could not be a basis for parole denial.
As to insight and minimization of responsibility, In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis)holds that lack of insight and minimization may constitute some evidence of unsuitability. But Shaputis had a history of abusing his wife and deemed the murder "a little accident," with a negative psychological report. None of this applies to Gordon. Gordon's 2008 statement that the gun was his "provides evidence of his full acceptance of responsibility and does not support a finding of minimization." Gordon's decision not to discuss the crime does not indicate a lack of insight. The trial court ordered the Board to set a new hearing and find him suitable for parole unless new or difference evidence indicates current dangerousness.
A timely notice of appeal was filed by the Board from the order granting the petition.
DISCUSSION
The Board argues its determination that Gordon lacked insight into the circumstances of his commitment offense and minimized his responsibility is supported by some evidence under the applicable deferential standard of review. The Board contends Gordon offered two versions of events at his 2008 hearing—one in which Gordon brought a gun, and one in which the gun was Goolsby's. It was appropriate for the Board to determine Gordon did not appreciate the magnitude of the commitment offense because he could not decide how the crime occurred. The Board further argues it could find Gordon's remorse was inadequate because it relates to an accidental shooting which is completely inconsistent with the bullet wound to the back of Goolsby's head.
Gordon replies that the statement in the 2008 Board report that Gordon brought the gun with him was unreliable because it was based on a 1995 Board report which was misinterpreted to mean the Gordon brought the gun with him. Other than that misunderstanding, Gordon has always maintained it was Goolsby who had the gun.
I. Controlling Principles and Standard of Review
The determination of parole suitability is made by the Board of Parole Hearings. (§ 3041.) "The panel or the board, sitting en banc, shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting." (Id., subd. (b).) California Code of Regulations, title 15, section 2402 (Regulations) provides the parole consideration criteria for murders committed after November 8, 1978. (In re Lawrence (2008) 44 Cal.4th 1181, 1201, fn. 5.)
Among the factors the Board shall consider, as relevant here, are the following circumstances tending to show unsuitability, the importance of which under section 2402 of the Regulations are "left to the judgment of the panel": "(1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered include: . . . (B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder. . . . (D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. (E) The motive for the crime is inexplicable or very trivial in relation to the offense." (Regs., § 2402, subd. (c).)
Circumstances tending to show suitability for release, as relevant here, include the following under section 2402, subdivision (d) of the Regulations: "(1) No Juvenile Record. The prisoner does not have a record of assaulting others as a juvenile or committing crimes with a potential of personal harm to victims. (2) Stable Social History. The prisoner has experienced reasonably stable relationships with others. (3) Signs of Remorse. The prisoner performed acts which tend to indicate the presence of remorse, such as attempting to repair the damage, seeking help for or relieving suffering of the victim, or indicating that he understands the nature and magnitude of the offense. . . . (6) Lack of Criminal History. The prisoner lacks any significant history of violent crime. (7) Age. The prisoner's present age reduces the probability of recidivism. (8) Understanding and Plans for Future. The prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release. (9) Institutional Behavior. Institutional activities indicate an enhanced ability to function within the law upon release."
Review on appeal is under a deferential standard of review which looks to the record before the Board for some evidence of current dangerousness. (In re Lawrence, supra, 44 Cal.4th at p. 1210.) "This standard 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." (Ibid.) "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." (Id. at p. 1221; Shaputis, supra, 44 Cal.4th at p. 1255.)
II. Analysis
A. The Board's Finding That the Offense was Committed in an "Especially Heinous, Atrocious or Cruel Manner"
There is some evidence to support the Board's finding that the commitment offense was committed in an especially heinous, atrocious or cruel manner. First, there is some evidence the murder was committed "execution-style." (Regs., § 2402, subd. (c)(1)(B).) As the prosecutor and trial court both stated at the probation and sentence hearing, there was no way for the victim to have been shot in the neck, at a distance of more than 20 inches, during a struggle for the gun. Goolsby's sister's description of the gunshots was consistent with Gordon delivering what the trial court described as the "coup de grace" to an already wounded victim, by shooting him execution style in the neck. The nature of the wound to Goolsby's neck has never been refuted by Gordon at any point.
Second, there is some evidence that the "motive for the crime is inexplicable or very trivial in relation to the offense." (Regs., § 2402, subd. (c)(1)(E).) There is evidence that Goolsby was killed in Gordon's ill-fated attempt to collect a drug debt by bringing a firearm to the victim's residence. This is a trivial motive in relation to Goolsby's murder.
B. Lack of Insight
In Shaputis, supra, 44 Cal.4th at page 1260, our Supreme Court held that a life inmate's lack of insight into his antisocial behavior may constitute some evidence the inmate "remains dangerous and is unsuitable for parole." "We note that expressions of insight and remorse will vary from prisoner to prisoner and that there is no special formula for a prisoner to articulate in order to communicate that he or she has gained insight into, and formed a commitment to ending, a previous pattern of violent behavior. In this case, however, the Governor's reliance on petitioner's lack of insight is amply supported by the record—both in petitioner's own statements at his parole hearing characterizing the commitment offense as an accident and minimizing his responsibility for the years of violence he inflicted on his family, and in recent psychological evaluations noting petitioner's reduced ability to achieve self-awareness." (Id. at p. 1260, fn. 18.)
This case is similar to Shaputis in that Gordon's versions of the life offense as being either committed in self-defense or by accident minimizes his responsibility and is also at odds with the facts that were settled at trial by the guilty verdicts of murder, robbery, and the findings of personal use of a firearm. The record before the Board contains evidence that Gordon brought a gun to collect a drug debt, and physical evidence in the nature of the gunshot wound to the neck is inconsistent with an accidental shooting or self-defense. The Board's finding of a lack of insight into the commitment offense is supported by some evidence.
This case is also dissimilar to Shaputis in that Gordon has received a lengthy string of psychological reports finding him to be a low risk for violence and expressing remorse. Gordon commendably has no other acts of violence before his life offense and in state prison, and other than a small number of dated transgressions, his prison record has been excellent.
Despite the existence of various factors that favor suitability for parole, the fact remains that there is some evidence supporting the Board's decision based on Gordon's lack of insight into the commitment offense. The Board could reasonably determine that Gordon's minimization of his own responsibility for the life offense demonstrates a lack of credibility regarding his remorse. As one panel member stated, "We have a real concern that you have not been able to come to grips with what actually took place, with what actually your decisions were, what your actions were. And until you can, you're not going to be suitable for parole."
Gordon argues the statement attributed to him in the 2008 Board report—that Gordon pulled his gun to defend himself from Goolsby—should have been disregarded by the Board because the statement in fact came from the 1995 psychological study, which had been misinterpreted to be that the gun belonged to Gordon rather than Goolsby. He also argues that his statement in the 2008 psychological report— indicating it was Goolsby who pulled his gun, there was a struggle, and the weapon discharged twice—accurately represents his consistent version of the facts. However, this argument was never presented to the Board. Gordon and his counsel were expressly cautioned that the 2008 Board report contained conflicting information, but no objection was raised nor was there any argument that the report was based on a longstanding misunderstanding of a 14-year-old statement in a psychological report. This court is simply not in a position to resolve the issue for the first time on appeal.
The difficulty in resolving the claimed misinterpretation on appeal is highlighted by the inconsistency in dates. Dr. Bradlee's report indicates he interviewed Gordon on June 11, 1996. The statement in the 1995 Board report, which Gordon argues was the beginning of the misunderstanding of his position, references an interview on December 4, 1995. The person who took the statement from Gordon on December 4, 1995, is not identified. We have no way of conclusively determining the source or accuracy of the December 4, 1995 interview.
In addition, the 2002 psychological report reflects yet another version of the incident, again attributable to Gordon. This version indicates Gordon and Goolsby were both armed. Given the multiplicity of descriptions of the life crime in the record before this court, we cannot resolve Gordon's argument that a statement he made in 1995 has been misinterpreted. To be clear, we do not determine that the claim is without merit. We merely hold that this type of fact driven inquiry is ill suited for an appellate forum.
In any event, Gordon interprets the Board's reasons for finding him unsuitable for parole too narrowly. The Board did reference the inconsistency between versions that the killing was an accident or in self defense, but the Board's reasoning was broader than merely pointing out that there is a distinction between those two concepts. The Board concluded Gordon was not credible about the life offense and how it occurred, which included his description of the shooting as an accident. As in Shaputis, supra, 44 Cal.4th at page 1260, footnote 18, Gordon's minimization of the offense by asserting it was an accident demonstrates a lack of insight which can serve as a basis for finding parole unsuitability.
Gordon argues that his claim of accident can be construed to be a claim of innocence of first degree murder, which may not serve as a basis to deny parole. (Regs., § 2236.) Our Supreme Court's decision in Shaputis demonstrates the fallacy in Gordon's argument and is a sufficient answer to the contention. (Shaputis, supra, 44 Cal.4th at p. 1260, fn. 18 [characterization of murder as an accident and minimization of responsibility is a basis for finding unsuitability].) The Board did not find Gordon unsuitable for parole because he claimed innocence. Parole was denied in part because Gordon consistently minimized his culpability by claiming an accidental killing in a case in which he brought a firearm to commit a robbery and shot the victim in the back of the neck, execution style. The Board was entitled on this record to find a lack of insight into the commitment offense which indicated Gordon remained a threat to public safety.
Regulations section 2236 provides as follows: "The facts of the crime shall be discussed with the prisoner to assist in determining the extent of personal culpability. The board shall not require an admission of guilt to any crime for which the prisoner was committed. A prisoner may refuse to discuss the facts of the crime in which instance a decision shall be made based on the other information available and the refusal shall not be held against the prisoner. Written material submitted by the prisoner under section 2249 relating to personal culpability shall be considered."
DISPOSITION
The judgment (order granting petition for writ of habeas corpus) is reversed.
KRIEGLER, J.
I concur:
KUMAR, J. ARMSTRONG, Acting P. J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I respectfully dissent.
I share the view of the trial court, which found: "Having independently reviewed the record, and giving deference to the broad discretion of the Board in parole matters, the Court concludes that the record does not contain 'some evidence' to support the determination that Petitioner currently presents an unreasonable risk of danger to society and is, therefore, not suitable for release on parole. See In re Lawrence (2008) 44 Cal.4th 1181, 1205-06; In re Rosenkrantz (2002) 29 Cal.4th 616, 617. Thus, the Board's decision must be vacated." (Trial court's order dated June 29, 2010. A copy of this order is attached as an Appendix.)
Gordon has been a model inmate for the last 29 years. Every psychological report prepared about Gordon since 1992 has opined that his potential for violent re-offense is lower than average, low, or minimal. Gordon has consistently expressed remorse for the life crime. His 1999 psychological evaluation expressly found that he did not try to minimize responsibility for the life crime, and every psychological report thereafter made the same finding. Gordon is now 54 years old, which further indicates that he has a reduced probability of recidivism.
Gordon had only a minor non-violent criminal record at the time he committed the commitment offense. Although Gordon was convicted of first-degree murder, both the sentencing court and the prosecutor agreed that they had seen "a lot worse murders than this one go down as second degree" murder. The court found that Gordon "told [the victim] to go in the bathroom and stay out of the way, [and] had [the victim] followed those instructions, he would be alive today." The court had the option to sentence Gordon to life without the possibility of parole, but the judge thought that Gordon should be eligible for parole, and accordingly struck the robbery special circumstance allegation.
His prior convictions were for second degree misdemeanor burglary, possession of a controlled substance and misdemeanor driving under the influence of drugs.
The citizens of California are increasingly realizing the high cost of lengthy prison terms and favor ways to reduce the prison population, including early release of nonviolent offenders. (Dolan, Californians Would Rather Ease Penalties than Pay More for Prisons, L.A. Times (July 21, 2011).) One sure way to respond to the citizens' desires is to grant parole to inmates such as Gordon, who has not committed an act of violence for almost 30 years and who has been assessed as having a low or minimal potential for violent re-offense for almost 20 years.
In spite of Gordon's merit, the Board of Parole denied parole. The trial court overruled the Board. Now a majority in this case upholds the Board's denial even though the majority recognizes that "Gordon has received a lengthy string of psychological reports finding him to be a low risk for violence and expressing remorse. Gordon commendably had no other acts of violence before his life offense and in state prison, and other than a small number of dated transgressions, his prison record has been excellent." (Maj. Opn., p. 16, fn. 2.) If Gordon is not suitable for parole with such an exemplary prison record, minor criminal history and average commitment offense, then no inmate could be.
The Penal Code views parole as the norm for an inmate sentenced to an indeterminate term once the inmate has reached his minimum parole eligibility date. (§ 3042, subd. (a) [the Board "shall normally set a parole release date"].) As this case shows, the Board has turned that directive on its head, viewing parole as the exception and continued incarceration as the norm. The court which tried this matter stated, "comparing this case to the numerous other murders that I have heard in the time I have been a judge, this just isn't a life without the possibility of parole situation." The court accordingly struck the special circumstance allegation. The Board has denied parole for Gordon five times now and has effectively imposed a sentence on Gordon which the trial judge found inappropriate: life without the possibility of parole.
The Board based its denial of parole for Gordon on the nature of the commitment offense, Gordon's prior criminal history, and his lack of insight and minimization of responsibility. The majority upholds the Board's decision on the basis of the commitment offense and Gordon's lack of insight and minimization of responsibility. Although I discuss these factors in detail below, "[i]t 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." (In re Lawrence, supra, 44 Cal.4th at p. 1212.) I do not see even a modicum of evidence to show that Gordon constitutes a current threat to public safety or that supports the decision of the Parole Board. (See id. at p. 1205.)
a. Commitment offense and criminal history
Gordon committed the life offense in 1981. The record contains very few details about the offense. Nevertheless, the Board concluded that the crime was especially "heinous, atrocious, and cruel." The majority agrees with the Board that the commitment offense was committed in an especially heinous, atrocious or cruel manner. The majority however, finds a new reason for this characterization. The majority believes that the killing in this case was committed "execution-style." This was not a reason articulated by the Board, and was never considered by the trial court which overruled the Board's decision.
It is not possible to know with any certainty the details of this crime, including whether a shot was fired "execution style." The murder took place more than 30 years ago and the record does not contain a transcript of the trial. The facts in the probation report and the original appellate decision do not show an execution style killing.The majority takes its "facts" from a discussion at the sentencing hearing. By the time the sentencing hearing took place, the trial court acknowledged that it had forgotten many of the details of the case. Gordon's attorney did not agree with the trial court's recollection of other facts. Thus, the majority engages in speculation with its new "execution style" characterization of the crime.
The probation report prepared for the sentencing hearing summarizes the shooting as follows: The victim's sister "heard a shot, looked out [of her bedroom], saw the victim and [Gordon] still struggling over the gun, went back in to the bedroom and heard 'about two more shots' fired. She then heard her brother fall, looked out, and saw [Gordon] running out the front door." The appellate opinion simply states that Gordon "took [the victim's] wallet, shot him, and left." This is not consistent with an execution style killing.
It is possible to know with certainty that the trial court and the prosecutor did not view the crime as "especially heinous, atrocious, and cruel." Although Gordon was convicted of first-degree murder, both the sentencing court and the prosecutor agreed that they had seen "a lot worse murders than this one go down as second degree" murder. The trial court stated that it did not recall any evidence of premeditation and deliberation. The trial court also believed that "comparing this case to the numerous other murders that I have heard in the time I have been a judge, this just isn't a life without the possibility of parole situation." The court struck the robbery-murder special circumstance finding. In the absence of a reliable record of the facts, I believe the court which presided over Gordon's trial was in a better position to evaluate the severity of Gordon's crime than is this Court.
The majority would also uphold the Board's denial in part because they find the motive for the crime to be trivial. (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1)(E) ["motive for the crime is inexplicable or very trivial in relation to the offense"].) The majority states that Gordon's motive was trivial because there is evidence that the victim "was killed in Gordon's ill-fated attempt to collect a drug debt by bringing a firearm to the victim's residence." I do not agree.
The trial court found that the victim precipitated the fight, which at its beginning was mutual combat. The court also found that if the victim had stayed in the bathroom as he was told to do, he would be alive today. Thus, Gordon's motive for the murder cannot fairly be characterized as attempting to collect a drug debt. Killing in response to an attack under the circumstances of this case is wrong and unlawful, but cannot fairly be characterized as trivial. (In re Rico (2009) 171 Cal.App.4th 659, 682 [killing "in retaliation for being shot at is indisputably wrong and unlawful," but on the facts of the case could not "fairly be characterized as trivial."]
More importantly, "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).)" (In re Lawrence, supra, 44 Cal.4th at p. 1221.) Thus, "the 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. [Citations.]" (Ibid.)
As I discuss throughout this opinion, there are numerous factors which show that Gordon has been rehabilitated. Gordon is not the person he was in 1981. Psychological reports show that over time, he had made changes in his psychological and mental attitudes and has become a new man. Gordon has repeatedly expressed remorse for killing the victim and repudiated the violence prone lifestyle that led to the killing. His behavior in prison has been excellent, and indicates an enhanced ability to function within the law upon release.
b. Lack of insight and minimization of responsibility
The Board also based its conclusion that Gordon posed an unreasonable risk of danger to society and a threat to public safety on its findings that Gordon lacked insight into the crime and minimized his responsibility for the crime. The majority agrees.
An inmate's failure to gain insight into his crime despite years of rehabilitative programming may indicate a current risk of danger. (See In re Shaputis (2008) 44 Cal.4th 1241, 1260.) Unfortunately, "[j]ust as the heinous nature of the commitment offense became a standard reason to deny parole after In re Dannenberg (2005) 34 Cal.4th 1061 [23 Cal.Rptr.3d 417, 104 P.3d 783], so too an inmate's lack of insight has become a standard reason after Lawrence and Shaputis, so much so that it [] has been dubbed the 'new talisman' for denying parole. ([In re Shippman (2010) 185 Cal.App.4th 446, 481] (dis. opn. of Pollak, J.) [quoting a case that was later ordered not to be published].)" (In re Rodriguez (2011) 193 Cal.App.4th 85, 97.)
Here, the Board stated: "Now what is a problematic situation here today is that there are numerous statements from Mr. Gordon that conflict [with] the official version." The Board explained: "So here's two different versions of the same crime. One here that's defending, self-defense; another one here says, oh, it was an accident during the struggle. . . . First, he says he didn't take a gun there. Then he says, well, he protected himself, defended himself. He blames others, particularly the victim. He blames the victim for the actions that caused the victim's death, and he continues to maintain that it was either an accident or he was defending himself in spite of being convicted for first degree murder and this conviction upheld on appeal. The Board finds that the prisoner is truly not credible as evidenced by the numerous contradictions to the evidence that's available to this Board through numerous resources." The Board did not explain how lack of credibility in a person creates an unreasonable risk of danger to public safety.
The Board concluded that Gordon "lacks insight into the causative factors of his conduct as evidenced by his lack of understanding of the events of the commitment offense and how those events are interrelated and connected to the overall causation factors of how this crime occurred." There is only one crime here, the killing of Goolsby, and that is one Gordon does not deny. Although Gordon's statements about the details of the crime have varied, he has always accepted responsibility for that death and expressed remorse for it and expressed sympathy for the relatives of the victims.
As is summarized by the majority, the Board is correct that Gordon did, over time, while explaining what took place, give inconsistent accounts of the details of the crime. Past Board reports contain a statement by Gordon that he was armed and fired at the victim in self-defense, while past psychological reports contain statements by Gordon that the victim was armed and the gun went off during a struggle. In one anomalous 2002 report, Gordon states that both he and the victim were armed, and that he fired in self-defense.
It is not uncommon for an inmate to give such differing accounts of a murder, as part of attempting to understand how he came to kill another human being. In many cases, the inmate may even be trying to remember what exactly happened. That is particularly the case with inmates like Gordon, who have no history of violence and whose killing takes place during or after a sudden, adrenaline-fueled struggle with the victim.
Further, as I read the record, the last time that Gordon actually made an inconsistent statement was in 2002. I read the Board reports as simply repeating a statement of Gordon from the 1990's with no indication that Gordon was reaffirming that statement. In any event, at the 2009 hearing, when expressly informed that the 2008 psychological report was inconsistent with the 2008 Board report, Gordon repudiated the 2008 Board report and made it clear that he was adopting the statement in the psychological report. Thus, Gordon's past statements do not support a finding of lack of insight. (See In re Vasquez (2009) 170 Cal.App.4th 370, 385-386 [inmate's past claims do not support a finding of lack of insight or remorse if the inmate's current statements contradict the claims].) Further, as I explain in more detail below, although Gordon's statements about the details of the crime have varied, Gordon has never denied that his actions caused the victim's death, but has always accepted responsibility for that death and expressed remorse for it and expressed sympathy for the relatives of the victims.
The Board also found that Gordon lacked insight because "[Gordon] continues to maintain that it was . . . an accident . . . in spite of being convicted for the first degree murder." The majority views this contradiction as the primary reason to uphold the Board's decision.
It is difficult to understand the Board's decision as anything other than insisting that Gordon admit his guilt by acknowledging that he intentionally killed the victim. This is not a proper basis for denying parole. The Board "cannot rely on the fact that the inmate insists on his innocence; the express provisions of Penal Code section 5011 and section 2236 of title 15 of the California Code of Regulations prohibit requiring an admission of guilt as a condition for release on parole." (In re McDonald (2010) 189 Cal.App.4th 1008, 1023; In re Aguilar (2008) 168 Cal.App.4th 1479, 1491.)
The majority claims that notwithstanding the above regulations, our Supreme Court's decision in Shaputis in effect permits the Board to deny parole if an inmate refuses to admit guilt and offers an explanation of the crime which differs from the facts shown at trial. The majority summarizes Shaputis as holding that an inmate's characterization of murder as an accident and his minimization of responsibility is a basis for finding the inmate unsuitable for parole. The opinion in Shaputis is more complicated and nuanced than the majority's summary suggests.
As my colleagues in the Third District Court of Appeal have explained, "In Shaputis, the inability of the inmate 'to gain insight into his antisocial behavior despite years of therapy and rehabilitative "programming,"' was some evidence of his dangerousness and unsuitability for parole (Shaputis, supra, 44 Cal.4th at p. 1260) because (1) his killing his wife 'was the culmination of many years of [his] violent and brutalizing behavior toward the victim, his children, and his previous wife' (id. at p. 1259) , (2) his continuing claim that the killing was unintentional was contrary to undisputed evidence that the gun he used 'could not have been fired accidentally, because the hammer was required to be pulled back into a cocked position to enable the trigger to function, and the gun had a "transfer bar" preventing accidental discharge' (id. at p. 1248, 1260) , and (3) his recent psychological reports reflected that his character, as shown by the killing and his 'history of domestic abuse,' 'remain[ed] unchanged' at the time of the parole hearing (id. at p. 1260)." (In re Palermo (2009) 171 Cal.App.4th 1096, 1111.)
None of those factors are present here. As the majority acknowledges, Gordon had no other acts of violence before his life offense and has received a string of psychological reports finding him to be a low risk for violence. Those reports reflect a positive change in character. Further, unlike Shaputis, there is no evidence in this case that it was physically impossible for the gun to have discharged accidentally. Gordon recognized that it was his involvement in a violence prone lifestyle that led to the murder. In 1999, Gordon's psychological evaluation states: "He sees himself as becoming involved in a violence-prone lifestyle because of his drug dealing." His 2008 psychological evaluation states that he "believes his actions on that fateful day were partially the result of the confluence between 'negative peer influences,' 'being raised in a tough neighborhood' and his desire to get 'rich' through his drug dealings." At the 2009 Board hearing, Gordon stated: "I was young and allowed my stupidity to cause me to go in the wrong direction, looking at money, drugs, and material things."
Gordon had no history of violence before or after the life offense. The trial court clearly believed that Gordon did not go to the victim's house with the intent to kill the victim, and even noted that if the victim had stayed in the bathroom as directed by Gordon, the victim would still be alive today. If Gordon had come to kill the victim, he would not have told him to go in the bathroom and stay out of the way. The killing was aberrational and, as Gordon recognized, the result of his involvement in a violence-prone lifestyle where conflicts are often resolved by the use of a gun. The Board acknowledged that Gordon had expressed remorse and accepted responsibility, but "this Panel is not truly convinced that he truly understands the nature and magnitude of his offense because he's in denial and minimizes his actions during the commitment offense."
Gordon's account of the offense cannot be reasonably understood as blaming the victim. The fact that the victim left the bathroom and tried to get the gun away from Gordon was stressed heavily at the sentencing hearing by the trial court, and was viewed by the court as, in effect, a mitigating factor. The court found: "The deceased did precipitate the fight by coming out of the bathroom, and there was at least at the start of the fight as a mutual combat."
The court went even further when it stated that Gordon "told [the victim] to go in the bathroom and stay out of the way, [and] had [the victim] followed those instructions, he would be alive today."
Gordon's simple repetition of the victim's actions does not, without more, minimize his responsibility and show a lack of insight into the crime. The Board points to nothing else in the record showing a minimization of responsibility. In contrast, the record shows that Gordon has consistently accepted responsibility for the killing and expressed remorse. In doing so, he displayed considerable insight into the crime. Gordon made an eloquent statement at the 2009 hearing, stating: "I feel that the most important thing is that I'd taken the life of Mr. Larry Goolsby and I'm deeply sorry for the wrong I have done, and nothing in the world could ever express the wrong I have done. And I have robbed Goolsby [of] the opportunity of being a good man and doing whatever it is that he would do in his life and I'm sorry for that. I feel deeply sorry for that, and if I could trade places with what all I've been through over the years and it's a hurt that won't go away every day that I wash my face or brush my teeth; I realize where I am and what I've done to be here; I would gladly. I would rather it would have been me instead of him. It was just wrong and no one could ever justify – there's no justification. There's no money, no time, no value to the taking of someone's life. That's what I feel." (Italics added.)
Gordon also stated: "I'm sorry [for] that terrible act. I was young and allowed my stupidity to cause me to go in the wrong direction, looking at money, drugs, and material things, and naive of what's right and wrong. I mean I can't put that on my upbringing, but I just made some wrong choices and some bad decisions, and I'm deeply sorry for the way I've went. And now that as I look back through the programs and the things I have taken, I see where I was totally out of control."
This was not the first time that Gordon accepted responsibility and expressed remorse. Every psychological report in this matter contains a statement of responsibility and remorse.
The 1996 psychological evaluation quotes Gordon as saying: "'I'm deeply sorry for what I done. I can't bring him back but what I can do is help others realize that that's not the way to live.'"
The 1999 psychological evaluation states: "He sees himself as becoming involved in a violence-prone lifestyle because of his drug dealing. He does not try to minimize his responsibility for the shooting as it developed."
The 2002 psychological evaluation states: "According to the inmate, the victim was threatening him. In retrospect, the inmate felt he didn't have the right to take another's life. He expressed the desire to atone for the crime even though he believed the shooting occurred in self-defense."
The 2005 psychological evaluation states: "He feels deeply sorry, and there is not a day that goes by without his thinking about his involvement in this crime. He accepts full responsibility and wants to do 'right' with society."
Gordon's 2008 psychological evaluation states: "Mr. Gordon takes responsibility for his involvement in the commitment offense. He further stated, 'I feel bad for him [victim] first and foremost and my family as well. I lost so much opportunity to be a better person. I went down the wrong road." The report also states: "He believes his actions on that fateful day were partially the result of the confluence between 'negative peer influences,' 'being raised in a tough neighborhood' and his desire to get 'rich' through his drug dealings. Although he believes these factors had some influence on his behavior, he does not place complete fault; as he was the one that ultimately made bad decisions in the end. Mr. Gordon expressed a considerable amount of regret for 'wasting a lot of people's lives.'"
Requiring an inmate to have the same "insight" into the crime as the Board does can often be the same thing as requiring the inmate to admit guilt. That is the case here. I see nothing in the Court's opinion in Shaputis to require such a result. As the Court noted in Shaputis, "expressions of insight and remorse will vary from prisoner to prisoner and that there is no special formula for a prisoner to articulate in order to communicate that he or she has gained insight into, and formed a commitment to ending, a previous pattern of violent behavior." (In re Shaputis, supra, 44 Cal.4th at p. 1260, fn. 18.)
Here, Gordon clearly understood and repeatedly acknowledged that it was susceptibility to peer pressure and desire for riches which led him into the violence-prone culture of drug-dealing and ultimately to the aberrational killing in this case. He has repudiated this lifestyle and no one has suggested that his repudiation is not sincere. Gordon has thus more than satisfied any requirement in Shaputis for insight. There is absolutely no basis to conclude that Gordon will ever repeat his aberrational act of violence.
ARMSTRONG, Acting P. J.
APPENDIX
In re ROBERT GORDON, Petitioner,
On Habeas Corpus
Case No.: BH006573
ORDER RE: PETTITON FOR WRIT OF HABEAS CORPUSThe Court has read and considered the Petition for Writ of Habeas Corpus filed on December 23, 2009 by the Petitioner, the Return filed on May 3, 2010 by the Warden, and the Traverse filed on June 1, 2010 by the Petitioner. The Petitioner challenges the Board of Parole Hearings' (Board) January 7, 2009 finding that he is not suitable for parole.
Having independently reviewed the record, and giving deference to the broad discretion of the Doard in parole matters, the Court concludes that the record does not contain sumc evidence" to support the dctemainationg that the Petitioner corrently presents an unreasonable risk of danger tosocieryand is, therefore, not suitable for release on parole. See In re Lawrence (2008) 44 Cal.4th 1181, 1205-06; In re Rosenkrantz (2002) 29 Cal. 4th 616, 667 . Thus, the Board's decision must be vacated.