Opinion
G044798 Super. Ct. No. M-13672 Super. Ct. No. C-39109
10-12-2011
In re EDWARD HENRY HARRELL on Habeas Corpus.
Rich Pfeiffer, under appointment by the Court of Appeal, for Petitioner. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Phillip Lindsay and Michael Rhoads, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Original proceedings; petition for a writ of habeas. Petition denied.
Rich Pfeiffer, under appointment by the Court of Appeal, for Petitioner.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Phillip Lindsay and Michael Rhoads, Deputy Attorneys General, for Respondent.
Petitioner Edward Henry Harrell challenges former Governor Arnold Schwarzenegger's reversal of the parole board's decision to grant him parole. He contends there is insufficient evidence to support the Governor's finding he poses an unreasonable risk of danger to the public, but we disagree. Therefore, we deny his petition for a writ of habeas corpus.
FACTS
This case arises out the 1977 murder of James Harbin, who was a pimp for Kai Silvira, Sandra Cree and Mary Patio. The record does not reflect the exact nature of petitioner's relationship to Harbin or Silvira, but one day following an argument with her, Harbin followed her to petitioner's house and beat her up in front of petitioner. Petitioner took great umbrage to this. After telling a friend that Harbin had "stepped on his manhood," he sent four men to Harbin's house to exact his revenge. Besides Harbin, Silvira, Cree and Patio, Silvira's six-year-old son Robert was also at the residence when the men arrived there.
Harbin was beaten and taken upstairs at gunpoint. He was stabbed over 30 times and died from his wounds. The men also cut Cree's throat and stabbed her multiple times, but she survived the attack. Patio, Silvira, and her son were taken captive and transported to petitioner's house. When they got there, one of the men said petitioner would be upset because they hadn't killed Patio. Nevertheless, petitioner joined the group and that evening they drove to Las Vegas. There was some discussion about throwing the captives over the Boulder Dam. There were also suggestions the men hadn't done a very good job in carrying out the attack. Petitioner was forgiving, though. He said that since it was their first time, he would consider it to be their initiation into the family. In the end, Silvira and her son were released, but Patio has never been found.
Petitioner was convicted by jury of first degree murder, attempted murder, kidnapping and conspiracy. Prior to sentencing, he told the probation officer he did not order the attack on Harbin and Cree. And while he agreed to go to Las Vegas with the perpetrators afterwards, he claimed he was drunk and sleepy at the time and was largely oblivious to what was going on.
In speaking with the probation officer, petitioner did, however, acknowledge that when he was a juvenile, he was arrested for various crimes, including auto burglary, assault, resisting arrest, robbery, illegally crossing the Mexican border and exhibiting a deadly weapon. He also admitted trying cocaine and marijuana as a youngster and using PCP regularly for a period of several months.
The probation report states, "The understanding of the police is that [petitioner] had been involved in prostitution and narcotics trafficking activity in the Santa Ana area for quite some time, and this belief is supported by the very nebulous nature of the information [petitioner] provided us concerning his employment and sources of income. His responses to most questions during the interview tended to be quite vague, and he frequently contradicted himself." The probation report also states petitioner instructed his cohorts to commit the subject crimes and was waiting for them after they carried them out. Given the viciousness of the murder, the trial court denied petitioner probation and sentenced him to an indeterminate term of seven years to life in prison with the possibility of parole.
Petitioner began serving his sentence in 1978, when he was 23 years old, and since that time, he has been a model prisoner in many respects. In addition to earning both Associate of Arts and Bachelor of Arts college degrees, he has obtained multiple vocational certificates and availed himself of many institutional and self-help programs within the prison system. And he has maintained a rock-solid work and conduct record, with the only blemish on his record being a 1981 infraction for failing to report an overpayment on his prison wages. Petitioner has also volunteered extensively in the aid of his fellow inmates, and he has established a supportive network of family and friends over the years. If paroled, he plans to reside with family in Riverside and work as a truck driver.
During his incarceration, petitioner has undergone numerous psychological evaluations. In 1986, he was diagnosed with "generalized anxiety disorder . . . with inadequacy and antisocial features." And that diagnosis was extended to include "narcissistic, compulsive, avoidant and borderline features" the following year. During his 1987 evaluation, doctors observed petitioner tried to "put himself in a favorable light" and "lied to a significant extent." However, it was noted that he "will probably not become violent unless he uses PCP, which is very unlikely."
The issue of PCP came up again in 1989, when petitioner was evaluated. During the evaluation, petitioner alleged "he was given [a] cigar laced with PCP" on the day of the murder and does not have any recollection what occurred after that. However, he also stated that one of the men who had carried out the murder "had lost a ring of prostitutes that worked for the victim and he wanted his ring back. [The] two of them talked together and decided on a revenge meeting with the victim. They went to the victim's house, but he was not home and they left."
In 1991, petitioner's psychiatric counselor reported that while petitioner "openly accepts responsibility for direct violence during the instant offense . . . he continues to reject the idea of ordering anybody's murder. He continues to externalize blame onto others, stating, 'Killing wasn't my idea. It was one of my friend's . . . . Someone gave me PCP without my knowledge before it happened.'"
In 1992, psychological testing indicated petitioner was able to "fake good" and "put himself in a positive light." At that time, his potential for violence was described as "unpredictable."
In 1998, petitioner's antisocial and narcissistic features were found to be "much improved," and his violence potential was deemed lower than the average inmate. But in 2004 and 2005, he tested in the "moderate" range in terms of his potential for violence and level of risk in the community.
The most recent psychological evaluation available for purposes of this case was conducted by Dr. Richard Starrett in 2008. Dr. Starrett's report states petitioner "continues to accept responsibility for the crime and understands he is in prison for murder first degree." However, as set forth in the report, petitioner's version of events surrounding the murder is rather self-serving. Petitioner admitted he was angry when he saw Harbin beat up Silvira. He also admitted calling a friend about obtaining a gun. But rather than admitting he ordered his friends to exact revenge on Harbin, petitioner claimed the plan was simply to rescue Silvira and her son from Harbin. He also asserted that his friends went to Harbin's house without his knowledge. Petitioner said that, unbeknownst to him, someone had laced his cigar with PCP, which left him in a stupor until his friends returned from Harbin's house. At that point, they told him they had "screwed everything up," but he does not remember everything they said. He insisted, "At no time was the manner in which to handle the situation with Mr. Harbin discussed by me with any of my co-defendant[s]."
When Dr. Starrett informed petitioner he appeared to be minimizing his role in Harbin's death and his version of events did not square with the record, petitioner was more forthcoming. He said that he sent his friends over to Harbin's house to hurt him and that he accepted responsibility for the crime. He also said "peer pressure, PCP, and being high" contributed to his behavior, but absent these factors "it might have happened anyway."
As part of his evaluation of petitioner, Dr. Starrett administered a series of tests to assess his psychological condition and risk of recidivism. Dr. Starrett found petitioner "has no serious mental health problems at the current time," but he did diagnose him with "antisocial personality disorder with narcissistic traits." Dr. Starrett also cautioned that while it appeared petitioner had developed coping strategies to deal with this disorder, it will never go away completely.
In gauging petitioner's general risk of recidivism, Dr. Starrett considered a variety of factors, including petitioner's arrest record, his drug history and his role in Harbin's murder. Using an assessment guide called the "Level of Service/Case Management Inventory," Dr. Starrett calculated petitioner's general risk of reoffending as being in the "medium range."
To ascertain petitioner's risk for future violence in the community, Dr. Starrett utilized two other testing measures, the Psychopathy Check List Revised (PCL-R) and the History Clinical Risk Management 20 (HCR-20). On the PCL-R assessment, petitioner scored in the moderate range for psychopathy, which is a trait that has been linked to episodes of aggression and criminality. Petitioner also scored in the moderate range on the HCR-20 test, as compared to similar inmates. That test relied on both "historical factors," such as the age at which petitioner began getting into trouble, and other considerations, such as the level of petitioner's insight into his own criminal behavior.
At oral argument, and in filings to this court since then, petitioner's attorney has attempted to cast doubt on the underlying validity of these testing measures. However, since petitioner did not challenge the measures at his parole hearing or in his petition for a writ of habeas corpus, we cannot attempt to assess their validity for the first time on appeal.
With regard to the issue of insight, Dr. Starrett noted petitioner "does accept responsibility for the crime as stated. There, however, have been a lot of inconsistencies over the years that have not been adequately explained and some issues that are unknown that may never be resolved such as his involvement in alcohol, drugs, drug dealing and prostitution. All of these things seem to be wrapped up in the case, and his exact role in the case seems unclear." In Dr. Starrett's opinion, that uncertainty increased the likelihood of petitioner reoffending, putting his overall risk of recidivism in the "medium range." Dr. Starrett also warned that if petitioner "return[ed to] alcohol or drugs or prior lifestyle issues [upon his release], his risk of recidivism and re-offending would considerably increase."
On August 3, 2009, the Board of Parole Hearings (Board) held a hearing on petitioner's parole suitability and determined he does not pose an unreasonable risk of danger to society or a threat to public safety. The Board therefore ordered that petitioner be released on parole. However, in a letter dated December 31, 2009, then-Governor Arnold Schwarzenegger reversed the Board's decision. The Governor found petitioner's criminal actions "demonstrated an exceptionally callous disregard for human life and suffering." The Governor was also concerned petitioner "has not gained sufficient insight into the circumstances of his offense" and has received "uniformly elevated risk assessments." While recognizing petitioner has made "creditable gains in prison," the Governor determined petitioner's release "would pose an unreasonable risk of danger to society at this time."
Petitioner challenged Governor Schwarzenegger's decision in superior court by way of a petition for writ of habeas corpus. In denying the petition, the court ruled, "Contrary to petitioner's claim of a non-existent rational nexus between the Governor's findings and his ultimate determination about petitioner's parole suitability, the record reveals that the gravity of petitioner's crimes, coupled with his lack of adequate insight into his violent behavior and his less than favorable psychological assessment, indicate . . . petitioner's release from prison would pose an unreasonable threat to public safety."
Petitioner has now filed a habeas petition in this court, renewing his challenge to Governor Schwarzenegger's decision. For the reasons explained below, we deny his prayer for relief.
In July 2010, the Board again found petitioner suitable for parole, but Governor Schwarzenegger reversed that decision on December 17, 2010. The propriety of that reversal is not before us in this case.
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DISCUSSION
Petitioner contends Governor Schwarzenegger's decision violated his due process rights because there is no evidence to support the Governor's conclusion he poses an unreasonable risk of danger to society. We disagree.
The touchstone of all parole review proceedings is public safety. As our Supreme Court explained in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence), the regulation applicable to parole hearings is designed to "guide the Board's assessment of whether the inmate poses 'an unreasonable risk of danger to society if released from prison,' and thus whether he or she is suitable for parole. [Citation.] The regulation also lists several circumstances relating to unsuitability for parole — such as the heinous, atrocious, or cruel nature of the crime, or an unstable social background; and suitability for parole — such as an inmate's rehabilitative efforts, demonstration of remorse, and the mitigating circumstances of the crime. [Citation.]" (Id. at pp. 1202-1203, italics and fns. omitted.)
The Board has broad discretion in weighing and considering these circumstances, and so does the Governor in exercising his constitutional authority to review the Board's decision. Although "'the Governor's decision must be based upon the same factors that restrict the Board in rendering its parole decision' [citation], the Governor undertakes an independent, de novo review of the inmate's suitability for parole. [Citation.] Thus, the Governor has discretion to be 'more stringent or cautious' in determining whether a defendant poses an unreasonable risk to public safety. [Citation.] '[T]the precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor. . . . 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 Governor's decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court's review is limited to ascertaining whether there is some evidence in the record that supports the Governor's decision.' [Citation.]" (Lawrence, supra, 44 Cal.4th at p. 1204, italics omitted.)
This standard of judicial review is highly deferential. However, it is not enough for a reviewing court to simply determine whether the Governor's particular factual findings are supported by some evidence. Rather, "the relevant inquiry is whether some evidence supports the decision of the . . . Governor that the inmate constitutes a current threat to public safety[.]" (Lawrence, supra, 44 Cal.4th at p. 1212.) And that decision cannot be based, in and of itself, on the aggravated nature of the offense for which the inmate was incarcerated. (Id. at p. 1214.) To support a finding of current dangerousness, there must be "something in the prisoner's pre- or postincarceration history, or his or her current demeanor and mental state" to suggest the prisoner remains a threat to public safety. (Ibid.)
Here, there is some evidence in addition to petitioner's commitment offense to support Governor Schwarzenegger's decision that petitioner would constitute an unreasonable risk to public safety if he were released on parole. Although petitioner has been a model prisoner in many respects, the record is peppered with evidence he suffers from various psychological ailments. In 1986, he was diagnosed with "generalized anxiety disorder, mixed personality disorder with inadequacy and antisocial features," and his violence potential was estimated to be "greater than average when compared to the average inmate." The following year, petitioner was diagnosed with identity and antisocial personality disorder with "narcissistic, compulsive, avoidant and borderline features." It was also reported that petitioner tried to put himself in a favorable light and lied to a significant extent, which is what was reported when petitioner was evaluated five years later, in 1992.
In some years, petitioner's psychological condition was found to be much improved, and in others, such as 2005, he was not diagnosed with any clinical or personality disorders. However, that same year, mental health evaluators placed petitioner in the moderate range in terms of his potential for future violence in the community. And in 2008, the most recent year for which psychological testing was available in this case, petitioner was again diagnosed with "antisocial personality disorder with narcissistic traits." This indicates petitioner's psychological problems are not fully resolved. In fact, Dr. Starrett warned that while petitioner has been able to manage his antisocial and narcissistic traits at times in prison, those traits never really go away. This information was no doubt pertinent to the issue of petitioner's suitability for parole. (See Lawrence, supra, 44 Cal.4th at pp. 1228-1229 [noting that a finding of unsuitability for parole may properly be based on a variety of factors, including unfavorable psychological evaluations].)
Also in 2008, psychological testing ranked petitioner mid-range in terms of future dangerousness. Summarizing his findings, Dr. Starrett reported: "The inmate's level of psychopathy is in the moderate range. The inmate's overall propensity for violence is in the moderate range when compared to similar inmates. The inmate's general recidivism risk is rated in the medium range." This is not a case where scant evidence indicated petitioner constituted a recidivist risk. (Compare In re Barker (2007) 151 Cal.App.4th 346, 375 [single test labeled inmate moderate recidivist risk, whereas two other tests found he was at low risk for reoffending].) Rather, as Governor Schwarzenegger noted in his decision, the testing evidence described petitioner as someone who has received "uniformly elevated risk assessments."
Petitioner correctly notes that some of the testing results were based on factors he is no longer able to control, such as his arrest history and the circumstances of his commitment offense. However, Dr. Starrett also relied on various clinical factors he observed while evaluating petitioner and on the statements petitioner made to him during the interview process. This shows Dr. Starrett's findings and conclusions were not "set in stone" based on past events that are now beyond petitioner's control. In any event, "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," if, as here, "those facts support the ultimate conclusion that [the] inmate continues to pose an unreasonable risk to public safety. [Citation.]" (Lawrence, supra, 44 Cal.4th at p. 1221.)
In addition to receiving some troubling psychological evaluations over the years and consistently testing in the mid-range in terms of future dangerousness, petitioner has also demonstrated a pattern of minimizing his role in the commitment offense. Starting early on in the case, petitioner told the probation officer who prepared his sentencing report that he did not order the attack on Harbin and Cree. He also claimed he was largely oblivious to what occurred in the wake of the attack, due to his drinking. "Vague" and "contradictory" are the words the probation officer used to describe petitioner's stated version of events.
While in prison, petitioner has worked hard to better himself and assist other inmates. No one disputes that in terms of conduct and achievement, his record has been exemplary. But in discussing the circumstances of his crimes, petitioner has exhibited a general tendency to slant the facts in his favor, downplay his role in the murder and blame others for his predicament.
That has not always been the case. For example, in 1991, petitioner's psychiatric counselor reported petitioner "openly accepts responsibility for direct violence during the instant offense." But the counselor also noted petitioner "continues to reject the idea of ordering anybody's murder. He continues to externalize blame onto others, stating, 'Killing wasn't my idea. It was one of my friend's. . . . Someone gave me PCP without my knowledge before it happened.'"
Similarly, in 2008, Dr. Starrett reported petitioner accepts responsibility for his crimes and understands why he is in prison. However, in recounting the events surrounding the attack on Harbin and Cree, petitioner made it sound like his sole objective was to rescue Silvira and her son from Harbin's control. Again, contrary to the evidence at trial, petitioner claimed the perpetrators went to Harbin's house without his knowledge, he never told them what to do, and, in fact, he was largely incapacitated on the evening in question because someone had slipped him a Mickey.
Thus, like petitioner's psychological record, the evidence of petitioner's insight and ability to come to terms with his past behavior has been mixed. At times he has shown contrition and a willingness to accept responsibility for his crimes. But, as Dr. Starrett reported in 2008, there "have been a lot of inconsistencies [in petitioner's statements] over the years that have not been adequately explained[.]" This was a legitimate factor for the Governor to consider in denying petitioner parole. Although inmates are free not to discuss the circumstances of their commitment offenses at their parole hearings, a right petitioner exercised here, "[a]n inmate's lack of insight into, or minimizing of responsibility for, previous criminality, despite professing some responsibility, is a relevant consideration." (In re Lazor (2009) 172 Cal.App.4th 1185, 1202, fn. omitted; see, e.g., In re Shaputis (2008) 44 Cal.4th 1241, 1260 [despite the defendant's claims of remorse and regret, the Governor was justified in denying him parole on the basis he minimized his actions and failed to gain insight or understanding into his commitment offense].)
Based on all of the evidence presented, the Governor was simply not persuaded petitioner could be released into the community without unreasonably jeopardizing public safety. That strikes us as a reasonable assessment, even though it is not the only conclusion that could be drawn from the record in this case. Suffice it to say, reasonable minds could differ on the issue of petitioner's suitability for parole. The Board assessed the relevant factors one way, and the Governor, as was his prerogative, another. As we have noted, "the Governor has discretion to be 'more stringent or cautious' in determining whether a defendant poses an unreasonable risk to public safety. [Citation.]" (Lawrence, supra, 44 Cal.4th at p. 1204.) Our job is not to independently assess the evidence and decide the matter de novo. Rather, we must simply decide whether there is "some evidence" in the record to support the Governor's decision the inmate constitutes a current threat to public safety. (Id. at p. 1212.)
For the reasons stated above, we are convinced that minimal standard is satisfied in this case. The atrocious nature of petitioner's commitment offenses, coupled with his current recidivism risk - as demonstrated by his lack of insight and psychological testing results - constitute some evidence to support the Governor's decision petitioner poses an unreasonable risk of danger to society. We are therefore unable to disturb the Governor's decision.
DISPOSITION
The petition for a writ of habeas corpus is denied.
BEDSWORTH, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
FYBEL, J.