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In re Jeffrey

California Court of Appeals, Sixth District
Sep 25, 2008
No. H031673 (Cal. Ct. App. Sep. 25, 2008)

Opinion


In re THOMAS JEFFERY, on Habeas Corpus. H031673 California Court of Appeal, Sixth District September 25, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Santa Clara County Super. Ct. No. 124366.

Premo, Acting P.J.

In 1989, inmate Thomas Jeffery was convicted of second degree murder and sentenced to prison for 17 years to life. At Jeffery’s initial parole hearing in 1999 the Board of Prison Terms (Board) refused to set a parole date for him, concluding that he was unsuitable for release. On May 25, 2005, the Board conducted the first subsequent parole hearing and again decided that Jeffery was not suitable for parole.

The Board of Prison Terms was abolished effective July 1, 2005, and was replaced by the Board of Parole Hearings. (Pen. Code, § 5075, subd. (a).) Depending upon the context, “Board,” as used here, refers to the parole agency or to the panel that conducted the hearing.

Jeffery filed a petition for habeas corpus in the superior court. The superior court granted the petition on the grounds that the presiding commissioner at the 2005 hearing was biased against Jeffery and that there was no evidence to support the Board’s reasons for denying parole. The court instructed the Board to conduct a new hearing consistent with due process. Respondent appeals from this order.

Although the habeas petition concerns the action of the Board, the respondent is the warden of the institution in which the petitioner is incarcerated. (Pen. Code, § 1477.) The Attorney General appears on the warden’s behalf.

Having independently examined the record before the superior court, we reject the court’s finding that the presiding commissioner was actually prejudiced against Jeffery but we agree that the Board’s reasons for denying parole are not supported by some evidence. We also conclude that the superior court’s order impermissibly limits the Board’s discretion on remand. Accordingly, we shall modify the order and, as modified, affirm.

While this appeal was pending, Jeffery filed a motion to dismiss it, claiming that the Board’s decision at the new parole hearing violated the order from which this appeal is taken and that this court has the power to dismiss an appeal in such circumstances. (People v. Kubby (2002) 97 Cal.App.4th 619; MacPherson v. MacPherson (1939) 13 Cal.2d 271.) By separate order filed concurrently with this opinion we deny that motion.

I. The Statutory Framework

Penal Code section 3041, subdivision (b) provides that the Board “shall” set a parole release date “unless [the Board] 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 . . . .” Parole considerations applicable to life prisoners convicted of murder are contained in the regulations, which provide that, before setting a parole date, the Board “shall first determine whether the life prisoner is suitable for release on parole.” (Cal. Code Regs., tit. 15, § 2402, subd. (a).) “Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.” (Ibid.)

Hereafter, all undesignated section references and all further references to regulations are to title 15 of the California Code of Regulations.

In determining whether the prisoner is suitable for release, the Board considers a list of circumstances tending to show both unsuitability and suitability. Circumstances tending to show unsuitability include that the inmate committed the offense in “an especially heinous, atrocious or cruel manner,” possesses a previous record of violence, has an unstable social history, has previously sexually assaulted another individual in a sadistic manner, has a lengthy history of severe mental problems related to the offense, and has engaged in serious misconduct while in prison. (§ 2402, subd. (c)(1)-(6).)

Pertinent factors favoring suitability are the lack of a criminal record or history of committing crimes as a juvenile (§ 2402, subd. (d)(1)), a stable social history (id., subd. (d)(2)), acts demonstrating that the prisoner “understands the nature and magnitude of the offense” (id., subd. (d)(3)), evidence that the prisoner committed the crime as the result of significant stress in his life (id., subd. (d)(4)), realistic plans for the future (id., subd. (d)(8)), and participation in institutional activities that “indicate an enhanced ability to function within the law upon release” (id., subd. (d)(9)).

II. The 2005 Parole Hearing

At the first subsequent parole consideration hearing in 2005, the Board considered documentary history of Jeffery’s commitment offense, records of his incarceration, letters of support from friends and family, and Jeffery’s own testimony. We summarize the evidence as follows:

A. The Commitment Offense

Evidence pertaining to Jeffery’s commitment offense was taken from the presentencing report of the probation officer. No Board report was prepared for the 2005 hearing. Jeffery waived the requirement in order to be able to go forward with the hearing, which had been postponed from April 2004 in order to obtain an updated psychological report then postponed again in January 2005 because Jeffery’s attorney had not been given the hearing packet.

Jeffery was convicted of murdering his wife’s boyfriend, Reynaldo Ybarra. Jeffery’s wife, Barbara, had had an affair with Ybarra while Jeffery was in jail in 1987. By August of 1988, Jeffery was not sure whether the affair had continued but he knew that Ybarra was still Barbara’s drinking buddy. On the evening of August 6, 1988, Barbara told Jeffery she was going to see a girlfriend. She left the couple’s four-year-old daughter in Jeffery’s care and went out and met Ybarra to drink beer. An argument ensued and Barbara threw her purse at Ybarra and walked away. She returned home around 6:30 the next morning and found Ybarra’s body by the stairs of her apartment complex. The police were called and found five small caliber gunshot wounds in Ybarra’s torso, which, given the bullet holes in Jeffery’s screen door, appeared to have been fired from inside Jeffery’s apartment. Neighbors reported seeing Jeffery leave the apartment with his child around 1:00 that morning. He was located later that day at the home of a relative.

Jeffery testified to his version of the crime. He said that Ybarra had got together with Barbara while Jeffery was in jail for 15 days for traffic tickets and malicious mischief. When Jeffery got out of jail Ybarra and his friends began trying to run Jeffery out of the neighborhood and had one or two violent confrontations with Jeffery prior to the August 7, 1988 murder. On the night of the shooting, Ybarra came to Jeffery’s apartment “acting riotous.” Jeffery’s daughter was asleep on the couch. Jeffery tried to ignore Ybarra but his persistence prompted Jeffery to open the door. Jeffery brought his gun with him. Jeffery explained that the apartment was in a bad neighborhood and that he always slept with a gun.

Jeffery told Ybarra to go away but Ybarra refused. He handed Barbara’s purse to Jeffery but stayed outside on the other side of the screen door. Ybarra insisted that Jeffery come with him to find Barbara who, he said, was going crazy. Ybarra then came at Jeffery, reaching behind his back; Jeffery responded by shooting at him through the screen door. The presiding commissioner asked Jeffery why he did not just shut the door and Jeffery said “I didn’t think of it. His partners or brothers had almost gotten--gotten me through the front door before.” Jeffery denied having been under the influence of drugs or alcohol. When asked why he shot Ybarra, Jeffery said, “He acted like he had a weapon. He rushed me at the front door at one o’clock in the morning. They [Ybarra and his ‘gang’] had already tried to hit me once or twice before that.”

After the shooting, Jeffery went to his neighbors and asked them to call the paramedics; they told him the police were on their way. Jeffery then carried his daughter across the street and left her with neighbors. Jeffery said he had planned to turn himself in but then apparently thought better of it and went to his relative’s apartment where he was located by police later that day. Barbara’s purse was found in the relative’s apartment. As one police report noted, “It could be the victim had indeed returned the purse to the husband, his judgment about the advisability of this action perhaps being clouded by his blood alcohol level of point one-five percent.”

Jeffery was charged with second degree murder (Pen. Code, § 187) and with having personally used a firearm in the commission of the crime (id., § 12022.5). The prosecutor offered to settle the case if Jeffery would plead guilty to manslaughter and accept a sentence of eight years--six for manslaughter and two for the firearm enhancement. The judge indicated he thought the offer ought to be five years but the prosecutor refused to reduce it. Jeffery declined the offer and a jury found Jeffery guilty as charged.

B. Social History, Criminal Record, Parole Plans

Jeffery was born on October 14, 1950, making him 37 years old at the time of the crime and 54 years old at the 2005 parole hearing. He was the youngest, by many years, of three children. By 2005, his father, mother, and both his siblings were deceased. Jeffery’s wife had divorced him. His daughter was now 20 years old and he had one granddaughter. He stayed in contact with his daughter through cards on Christmas and her birthday. He had several cousins, nieces and nephews.

Jeffery had graduated from high school and attended junior college. He had worked as a carpenter but at the time of the murder he was unemployed and attending college part time. He had no history of alcohol abuse. He had convictions for possession of marijuana in 1970 and 1974 and he admitted having smoked marijuana when he was young.

Jeffery had neither a record of juvenile arrests nor any history of violent crime. He had 35 misdemeanor convictions, mostly for such things as driving on a suspended license, unregistered vehicle, and similar Vehicle Code crimes. There was one violation for malicious mischief, which involved Jeffery’s walking over a car that had been parked across what he believed was his right of way. He got another ticket for sleeping in his truck when he thought he had drunk too much to drive. The ticket made him so angry that he ignored the ticket and most of the later Vehicle Code violations that began piling up as a result. “I was rebellious when I was young,” he said.

Jeffery had several letters of support from family members. One cousin set forth in detail his plans to support Jeffery when he is paroled. The cousin, a retired professor and former associate dean at Texas A&M University, explained that when Jeffery is released, the cousin would welcome him into his home, help him find and furnish a place to live, assist him in securing a vehicle and driver’s license, and help him find a job. At least one construction contractor had offered to hire Jeffery on a probationary basis when he was released.

C. Institutional Behavior

Jeffery was received by the Department of Corrections on June 29, 1989. During the period of his incarceration Jeffery had seven reports of minor counseling incidents (CDC 128s). The most recent of these was in 1996. He had four reports of more serious incidents (CDC 115s). The last of these, a March 1999 report of “behavior which may lead to . . . disorder,” was subsequently reduced to a nonserious administrative CDC 115 for which Jeffery was counseled and reprimanded.

Form 128-A, a “Custodial Counseling Chrono” documents incidents of minor inmate misconduct and the counseling provided. (§ 3312, subd. (a)(2).) Misconduct that is believed to be a violation of law or is not minor in nature is reported on CDC Form 115, a Rules Violation Report. (§ 3312, subd. (a)(3).)

Jeffery had worked at a series of jobs while in prison receiving satisfactory to exceptional ratings. His best ratings were given for his work as a carpenter’s apprentice. He received his lowest rating, satisfactory, in the categories of “attitude toward fellow inmates and workers” and “teamwork.”

As recommended by the Board following the 1999 hearing, Jeffery participated in several self-help programs. He completed the 13-week Impact Program, 15 two-hour sessions with Friends Outside Parenting Program, and had continuously participated in Narcotics Anonymous. He had taken and excelled in numerous college-level courses and had completed a Bible study program. He had no negative discipline since 1999.

D. Psychological Factors

There are four psychological evaluations in the record. All of them found Jeffery to be of normal intelligence and none found him to be suffering any psychiatric condition that warranted treatment.

The 1992 psychological report notes, “Narcissism is the most salient trait in [Jeffery]. He projects an over-valued estimation of self; very self-centered; wants and needs a lot of attention.” Diagnostic impression was that Jeffery suffered from phase of life problems relating to life circumstances at the time of the offense, narcissistic personality disorder, mild psychosocial stressors and mild symptoms in everyday functioning. The report concluded: “[Jeffery] is a lifer who is narcissistic in temperament; seems without remorse regarding the instant offense because the subject indicates it was in self-defense. [Jeffery] maintains a positive attitude toward prison and eventual rehabilitation. [¶] Violence potential in the community is rated as average for the prison population.”

The 1995 report of a different psychologist concluded that Jeffery had an adjustment disorder with mixed emotional features that was now resolved. He had “[n]o contributory personality disorder.” This report concluded, “His diagnosed psychopathology appears to be directly related to his offense. He was feeling threatened by the man who appeared at his door on the night in question, and so he went to the door with a gun, and he felt that the man was going to attack him because he had held his hand behind him, possibly holding a knife or a gun himself. He acted then out of that fear, and therefore his fear was a direct result of what occurred.”

A third psychologist, M. Carswell, performed an evaluation in 1999. Carswell acknowledged the CDC 115s Jeffery had received in 1998 and 1999, the first for mutual combat and the second, according to Jeffery, for trying to restrain another combatant. Carswell concluded that these incidents suggested that Jeffery “may still tend to act out impulsively.” Carswell made the same diagnoses the 1995 evaluator made, namely that Jeffery had an adjustment disorder that was now resolved and “no contributory personality disorder.” Carswell found Jeffery’s violence potential to be “higher than the average citizen in the community” and opined, “[a] significant risk factor for this inmate which may be a precursor to violence would be the use [of] illegal drugs. He denies a problem with substance abuse and stated that he would not use drugs because of parole conditions. However, mandatory testing and attendance at Narcotics Anonymous should be a condition of his parole.”

By 2004, yet a fourth psychologist, Melvin Macomber, corroborated the two previous psychological reports that had diagnosed Jeffery as having no present clinical disorder and no personality disorder. Macomber noted that the fighting incidents from 1995, 1998, and 1999 “do not show a pattern of malicious intent or impulsive aggressiveness.” Macomber remarked that Jeffery “was not a violent individual before the commitment offense, and he was not seen as a violent individual after the commitment offense. In many ways, the commitment offense was quite situational.” Macomber stated that there was no history of alcohol abuse but that Jeffery did have a history of marijuana use in the community. Like Carswell, Macomber recommended drug and alcohol testing and attendance at Narcotics Anonymous as conditions of his parole. Macomber opined, “This inmate does not pose a risk to the community.”

E. Opposition by the Santa Clara County District Attorney and the San Jose Police Department

A representative from the Santa Clara County District Attorney’s office appeared by telephone to argue against granting parole. A letter from the San Jose Police Department described the crime, then stated, “I recommend that Thomas Jeffery serve the maximum sentence prescribed by law.”

F. The Board’s Decision

The Board concluded that Jeffery was not yet suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The presiding commissioner read the decision: “And we considered the following factors in making this determination. First of all, we did consider the commitment offense . . . this was the murder of Reynaldo Ybarra, a young man, a 20-year-old man, who, from everything that we can find here, was apparently having an affair with [Jeffery’s] wife. There had--there was a history between the two men of confrontational situations and for some reason, Mr. Ybarra showed up at [Jeffery’s] door in the early hours of the morning, the middle of the night basically, with [Jeffery’s] wife’s purse. Whatever occurred there, it ended in the--in multiple gunshots in Mr. Ybarra’s body through a screen door and Mr. Ybarra was unarmed. So once again, as was said earlier and as we discussed the life offense, there were so many different things that could have occurred. [Jeffery] was in his house. Mr. Ybarra apparently was being loud and confrontational through the door, so [Jeffery] decided that he should open the door. The purse was handed in. There was nothing--no reason that [Jeffery] needed to shoot this man. He could have made multiple other choices, including simply not answering the door. But once he had the purse, he easily could have shut his door and called the police to deal with the situation. But instead, he took it into his own hands and he killed this young man. From what I can see, and certainly from what the information we have at hand states, the motive for this crime was, I guess inexplicable is the best way to describe it. We’re not quite sure what it was. He says that he believed that Mr. Ybarra was armed. Mr. Ybarra was not. And once again, even if he had had a knife in his hand, [Jeffery] could have closed the door and called the police and the knife wouldn’t have gotten him into the apartment.” (At this point Jeffery interjected that his apartment did not have a telephone.)

The presiding commissioner continued with the panel’s decision: “This prisoner does not have a record of violence. He does have a history of problems with traffic violations. But he also has an unstable social history that includes substance abuse. There were--as he acknowledged in one of the previous psych reports to the doctor, there were arrests for possession of marijuana in his past. He has been programming. He has completed a vocation and he is upgrading educationally, but he has not yet sufficiently participated in beneficial self-help programs. He’s had seven [CDC] 128(a) counseling chronos, the last one in 1996 and . . . four [CDC] 115 disciplinaries. The last one was in 1999. It was behavior which could lead to violence, but it was reduced to an administrative [CDC] 115. The current psychiatric or psychological evaluation, authored by Dr. Macomber and dated 6/19/04 is somewhat contradictory from the prior psychological evaluations. And I think that one issue that’s been raised over a period of time that hasn’t been addressed recently and cleared up is this continuing theme of narcissism. It started in the Probation Officer’s report. It talked about a feeling of, I guess entitlement is probably the best way to describe it. That feeling that as long as he felt that he was in the right, he could--he could act out in certain ways. And I think that that’s been left unanswered. And so, in addition to the fact that it’s somewhat contradictory to the prior reports that do talk about narcissism and also in the just past report in ‘99 that says he would be a higher risk, based on some conversations in the report about his insight, I think that it’s very--it’s just inconclusive. And I’m going to ask for a new report to specifically--or at least an addendum to specifically address those issues. It’s an important issue into the--into future violence as it relates to the reasons for the commission of this crime.” The presiding commissioner mentioned that the Santa Clara County District Attorney and the San Jose Police Department opposed parole.

The presiding commissioner went on to note that Jeffery had good parole plans and ample social support and that he had been participating in a variety of programs and educational studies but that “the positive aspects of behavior do not outweigh the factors of unsuitability.”

The Board made its denial effective for three years, citing the commitment offense as support for the three-year denial. The presiding commissioner noted that Jeffery shot Ybarra “through the screen door . . . [when Jeffery] could have gone in his house and closed the door and called for help.” The Board recommended that Jeffery remain discipline-free, participate in self help activities, look into issues of impact, motivation, and insight, and continue participation in AA or NA because “everyone [had] indicated that substance abuse is an issue.”

III. Jeffery’s Habeas Corpus Petition

After the 2005 denial Jeffery petitioned the superior court for a writ of habeas corpus arguing, among other things, that there was not some evidence to support the Board’s findings and that the Board’s commissioners were biased in favor of punishment. Jeffery submitted two articles pertaining to the presiding commissioner, Susan Fisher, a recent Board appointee. According to the articles, Fisher had served as a “staunch advocate of crime victims’ rights” and had been a board member and director of the Doris Tate Crime Victims’ Bureau, a victims’ rights organization named for the mother of Sharon Tate. Sharon Tate was murdered in 1969. Fisher had also been a member of various other victims’ rights groups, including the Institute for Crime and Trauma Survivors, the San Diego County Chapter of Parents of Murdered Children, and Citizens for Law and Order. Fisher had become involved in these organizations after the murder of her brother in 1987. A spurned lover had stalked Fisher’s brother, then shot and killed him on the landing outside the door of his apartment.

In granting Jeffery’s habeas petition, the superior court noted that a threshold issue was whether Jeffery had received a fair hearing given the presence of Fisher as the presiding commissioner. The court rejected the Attorney General’s argument that Jeffery had waived the issue by failing to raise it at the parole hearing, noting that Fisher had not disclosed her background to him prior to the hearing. Citing Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470, 483, the superior court observed that in order to prove that Fisher was biased it was necessary to show that there was “ ‘an unacceptable probability of actual bias [as shown by] concrete facts.’ ” The court concluded that there was actual bias demonstrated by Fisher’s statement that Jeffery’s motive for the crime was “inexplicable,” which, the court explained, was at odds with evidence that the victim was apparently having an affair with Jeffery’s wife, that there was a history of confrontations between the two men, and that the victim had showed up at Jeffery’s door in the early morning hours with Jeffery’s wife’s purse. This, according to the superior court, logically indicated that the victim had been in the company of Jeffery’s wife that night and “was obviously the catalyst for [Jeffery’s] crime.” The court concluded, “Given the prior experience of Commissioner Fisher, it appears that she was ‘blind to the record,’ and therefore, Ms. Fisher called the dynamics surrounding or motive for the crime ‘inexplicable.’ ”

The superior court continued: “Additionally, Ms. Fisher’s explained [sic] that parole was being denied because ‘there were so many different things that could have occurred . . . no reason that Mr. Jeffery needed to shoot this man. He could have made multiple other choices.’ It is evident that Ms. Fisher denied [Jeffery] parole for the very reason that he was eligible for parole--he committed murder. It is circular reasoning to say, as Ms. Fisher essentially did, that [Jeffery] is before the Board for parole consideration because he committed murder and that parole will be denied because [Jeffery] committed murder rather than extricating himself from the situation.”

The superior court also found: “Actual bias has been shown by the Board’s announcement of ‘findings’ that are not supported by ‘some evidence’ and which appear instead to be attempts to force the facts of the crime into unsuitability factor[s] not actually present. There is no evidence supporting the use of the commitment offense to deny parole [citation]. Thus, at the new hearing, unless there is different evidence, the Board may not invoke this unsuitability factor. [Citation.]”

The court ordered the Board “to provide [Jeffery] a new hearing which shall comport with due process, as outlined above, within 35 days of receipt of this order by the Attorney General.”

IV. Contentions

The Attorney General argues that the trial court erred in concluding that Fisher was actually biased. The Attorney General also challenges the superior court’s conclusion that Board’s findings were not supported by some evidence.

V. Discussion

A. Bias

There is no question that Jeffery was entitled to an impartial hearing before an unbiased hearing panel. (Cf. Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, 1025.) Section 2250 defines an unbiased parole hearing panel as one whose members do not have a specific prejudice for or against the particular prisoner. Prejudice in this context does not mean that the adjudicator has a generalized prejudice against all criminals. (Hornung v. Superior Court (2000) 81 Cal.App.4th 1095, 1099-1100.) “The right to an impartial trier of fact is not synonymous with the claimed right to a trier completely indifferent to the general subject matter of the claim before him. As stated in Evans v. Superior Court (1930) supra, 107 Cal.App. 372, 380, the word bias refers ‘ “to the mental attitude or disposition of the judge towards a party to the litigation, and not to any views that he may entertain regarding the subject matter involved.” ’ In an administrative context, Professor Davis has written that ‘Bias in the sense of [a] crystallized point of view about issues of law or policy is almost universally deemed no ground for disqualification.’ (2 Davis, Administrative Law Treatise (1st ed. 1958) p. 131; also see United States v. Morgan (1941) 313 U.S. 409, 420-421; Trade Commn. v. Cement Institute (1948) 333 U.S. 683, 700-703.) This long established, practical rule is merely a recognition of the fact that anyone acting in a judicial role will have attitudes and preconceptions toward some of the legal and social issues that may come before him.” (Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 790.)

The regulation states in full: “A prisoner is entitled to a hearing by an impartial panel. A prisoner may request the disqualification of a hearing panel member or a hearing panel member may disqualify himself. [¶] (a) Grounds for Disqualification. A hearing panel member shall disqualify himself [or herself] in the following circumstances: [¶] (1) A close personal relationship exists between the hearing panel member and the prisoner or between their immediate families. [¶] (2) The hearing panel member was involved in a past incident with the prisoner which might cause him [or her] to be prejudiced against the prisoner; for example, the hearing panel member was responsible for the arrest of the prisoner or the prisoner has assaulted the hearing panel member or a member of the hearing panel member’s family. [¶] (3) The hearing panel member is actually prejudiced against or biased in favor of the prisoner to the extent that he [or she] cannot make an objective decision. [¶] (b) Decision. The hearing panel shall make and document the decision on disqualification if the issue has been raised. Disqualification shall not occur solely because the hearing panel member knew the prisoner in the past or has made a decision in the past affecting the prisoner.” (§ 2250.)

In the present case, there was no evidence of particularized bias in the record before the superior court. Jeffery had not raised the issue at the hearing so that Fisher had had no opportunity to respond to his charge. The only evidence on the point was the two news articles Jeffery submitted with his habeas petition. The superior court was clearly aware that it was necessary to show actual bias against Jeffery as the court’s articulation of the standard of proof shows. Thus, although the court mentioned Fisher’s background as a victims’ rights advocate and her experience of having lost her brother to murder, the evidence the court cited in support of its finding that Fisher was actually prejudiced against Jeffery (indeed, the only “evidence” specifically pertaining to Jeffery) was the Board’s reasons for denying parole, which the superior court concluded were unsupported by the evidence.

While we agree with the superior court’s assessment of the evidentiary basis for the Board’s decision, we reject the notion that an adjudicator’s decision on the merits necessarily proves the adjudicator’s actual bias. An erroneous decision may be the result of bias where bias exists but citing the result to prove the cause is faulty logic.

In Aristotelian logic this type of reasoning is said to suffer from the fallacy of “affirming the consequent.” (Lind & Douglas, Logic and Legal Reasoning (2001) p. 206.)

B. The Board’s Decision is Not Supported by Some Evidence

The Board’s decision expressly rested upon the presence of two unsuitability factors--the nature of the commitment offense and an unstable social history. (§ 2402, subd. (c)(1), (c)(3), (c)(6).) A third factor that seemed to carry a great deal of weight with the Board was the concern that Jeffery had been described as having a narcissistic personality. The Board did not explain how that particular characteristic made Jeffery unsuitable for parole. We shall assume the Board found the personality disorder reflected a lack of insight or a failure to understand “the nature and magnitude of the offense.” (Id., subd. (d)(3).)

1. The Scope and Standard of Review

In In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz), the Supreme Court explained that parole release decisions “entail the Board’s attempt to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts.” Such a prediction requires analysis of individualized factors on a case-by-case basis and the Board’s discretion in that regard is “ ‘ “almost unlimited.” ’ ” (Ibid.) Although the Board’s discretion is exceedingly broad, it is circumscribed by the requirements of procedural due process. (Ibid.; Cal. Const., art. I, § 7, subd. (a).)

Judicial review of the Board’s parole decisions is very limited. “[T]he court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation.” (Rosenkrantz, supra, 29 Cal.4th at p. 658, italics added.) “[U]nder the statute and the 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.” (In re Lawrence (2008) 44 Cal.4th 1181 [Cal. LEXIS 10170, 56-57].)

To support the Board’s finding of current dangerousness, “[o]nly a modicum of evidence is required. Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the [Board]. . . . [T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the [Board], but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious. It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole. As long as the [Board’s] decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court’s review is limited to ascertaining whether there is some evidence in the record that supports the [Board’s] decision.” (Rosenkrantz, supra,29 Cal.4th at p. 677.) If some of the Board’s reasons for denial are not supported by the evidence, so long as the reasons that are supported by some evidence constitute a sufficient basis for the Board’s decision, the decision satisfies the requirements of due process. (Ibid.)

With these rules in mind, we proceed to our review of the trial court’s determination that the Board’s decision was not supported by some evidence. “Because the trial court’s findings were based solely upon documentary evidence, we independently review the record.” (Rosenkrantz, supra, 29 Cal.4th at p. 677.)

2. The Commitment Offense

The pertinent regulations specify that one of the circumstances tending to show unsuitability for parole is where the prisoner committed the offense in an especially heinous, atrocious, or cruel manner. (§ 2402, subd. (c)(1).) Evidence that would support such a finding includes evidence that “[t]he motive for the crime is inexplicable or very trivial in relation to the offense.” (Id., subd. (c)(1)(E).)

In this case, the only fact the Board cited for its finding the crime was especially heinous, atrocious, or cruel was that Jeffery’s motive was “inexplicable.” But the record is otherwise. The Board’s decision acknowledged that Jeffery was at home with his sleeping child when he was confronted by the man with whom he had had violent confrontations in the past, the same man who had become Barbara’s lover while Jeffery was in jail, and who now, after apparently having spent some time with Barbara, came drunk in the middle of the night to Jeffery’s front door. Given the facts, the motive is not inexplicable. These facts suggest motives such as fear, jealousy, anger or panic. Since the evidence provides ample explanation for the conduct, the Board’s finding that the motive was inexplicable cannot stand.

3. Unstable Social History

The Board also found that Jeffery had an “unstable social history that includes substance abuse.” Section 2402, subdivision (c)(3) lists “Unstable Social History” as a factor tending to show unsuitability for parole and explains that this means “[t]he prisoner has a history of unstable or tumultuous relationships with others.” Although a substance abuser may well have tumultuous relationships with others, the Board did not rely upon evidence of “tumultuous” relationships. The Board cited only substance abuse.

The Attorney General argues that Jeffery’s below average work reports and other criticisms show he had an unstable social history and pattern of bad relationships. But there is no evidence of negative work reports in the record before us. Jeffery was graded as “satisfactory,” the middle grade on a scale ranging from “exceptional” to “unsatisfactory,” in the “attitude toward fellow inmates” and “teamwork” categories in the work reports contained in the record. One panel member questioned Jeffery about negative work reports but withdrew the questions when challenged by Jeffery’s attorney. In any event, the Board made no findings on the point. We must confine our review to the Board’s stated findings, not to findings the Board might have made. (In re DeLuna (2005) 126 Cal.App.4th 585, 593-594.) Accordingly, we reject this part of the Attorney General’s argument.

As to Jeffery’s social history, there is no evidence of instability. Jeffery came from an intact family, had graduated from high school, and was married at the time of the murder. Although Jeffery did have two convictions for possession of marijuana--14 and 18 years prior to the murder, and did admit having smoked marijuana when he was young, none of his other misdemeanors was related to alcohol or drug use. He was never arrested for driving under the influence. Indeed, there is no evidence that he had a tumultuous relationship with anyone other than the victim. And, other than Ybarra’s own drunkenness, there is no evidence that drug use played any role in the murder.

In recommending that Jeffery continue to participate in NA or AA, the presiding commissioner noted that “everyone has indicated that substance abuse is an issue.” This misstates the record. The only reference to substance abuse as an “issue” appears in Carswell’s 1999 psychological report where the psychologist noted, “A significant risk factor for this inmate which may be a precursor to violence would be the use [of] illegal drugs.” One must presume that the psychologist included this remark as a precaution because there is no evidence in the record, and certainly none referenced in Carswell’s report, to suggest that Jeffery had a history of violence or a history of substance abuse, let alone a history of violence related to the use of illegal drugs. Accordingly, there is no support for the conclusion that Jeffery had an unstable social history that included substance abuse.

4. Narcissistic Personality

The Board seemed very concerned with Jeffery’s “narcissistic” personality and the Board’s perception that the issue had been “left unanswered.” Again, the Board must have misread the record. The probation report from 1989 mentions the issue and the 1992 psychological evaluation mentions it again. But the issue had not been left unanswered because the 1995, 1999, and 2004 psychological reports each expressly stated that Jeffery had no personality disorder. Even Carswell’s report, which the Board seemed to weight most heavily, stated unequivocally that Jeffery had no contributory personality disorder. Thus, the concern had been addressed and found to be resolved.

5. Remorse

The Attorney General argues that “Jeffery believes he was the victim of the crime and he continues to place the blame for the crime on his wife and Ybarra.” But, as evidence to support this statement, the Attorney General points only to the presiding commissioner’s comment at the end of the hearing in which she advises Jeffery, “I have to say that you do present yourself in a manner that seems to imply that nothing that ever happens to you or around you is your fault. And that seems to be a continuing thing and I think that you--your attitude about this crime seems to be one of you being the victim.” We recognize that we must defer to the Board on its evaluation of the manner in which a prisoner presents himself. However, having carefully read the hearing transcript, we find no basis for the assertion that Jeffery had maintained the view that he, rather than Ybarra, was the victim.

The Board asked Jeffery several times why he shot Ybarra and Jeffery explained his reasons, which were Ybarra’s demeanor and his history with Jeffery--in other words, Jeffery was frightened or panicked. The Deputy District Attorney had the Board ask questions about Jeffery’s attitude toward his sentence, to which Jeffery responded, “I think they overdid it.” None of this suggests that Jeffery did not take responsibility for the shooting. Indeed, at no point in the hearing was Jeffery asked how he felt about having killed Ybarra or who he believed was responsible for Ybarra’s death.

None of the last three psychological reports found that Jeffery lacked remorse or blamed others for his crime. Macomber had Jeffery describe the crime following which Jeffery told Macomber that it was “a terrible thing” and “a tragedy that should have never happened.” According to Macomber, Jeffery “expressed feelings of remorse and sorrow about his actions. He stated that there were many other things that he could have done rather than shoot the victim. He fully accepted responsibility for the victim’s death as a result of his actions. His expression of remorse appeared to be sincere and genuine.” There is nothing in the record to conflict with this assessment. Accordingly, there is no evidence to support the Board’s implicit concern that Jeffery failed to take responsibility for the crime.

C. The Superior Court’s Order Was Too Broad

The superior court’s order stated: “There is no evidence supporting the use of the commitment offense to deny parole (Title 15 § 2402 [subd.] (c)(1)). Thus, at the new hearing, unless there is different evidence, the Board may not invoke this unsuitability factor. (See In re DeLuna[, supra,]126 Cal.App.4th [at p.] 599: ‘If there is evidentiary support for a finding currently lacking it, the Board may make that finding again.’ Stated conversely, if there is not any new and further evidentiary support, the Board may not make that finding again.)” The Attorney General argues that this directive impermissibly interferes with the Board’s discretion. We agree.

Section 2402, subdivision (b) provides in part: ‘All relevant, reliable information available to the panel shall be considered in determining suitability for parole.’ Rosenkrantz observed, ‘the precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the [Board], but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious.’ (Rosenkrantz, supra, 29 Cal.4th at p. 677.)” (In re DeLuna, supra, 126 Cal.App.4th at p. 599.) Thus, where a court’s order precludes the Board “ ‘from relying on any of the purported reasons it previously articulated’ ” the order curtails the Board’s exercise of discretion and exceeds the court’s authority. (Ibid.; see also In re Weider (2006)145 Cal.App.4th 570, 590 .)

In the present case, the Board’s findings contained ample evidence to explain Jeffrey’s motive in shooting at Ybarra. Thus, upon remand, the Board may not rely upon Jeffrey’s “inexplicable motive” as grounds for denying parole. But the superior court’s order goes beyond precluding the Board from relying upon an inexplicable motive. It states, without qualification, that the Board may not rely upon the commitment offense. To the extent the superior court has precluded the Board from considering “[a]ll relevant, reliable information” (§ 2402, subd. (b)), it has exceeded its jurisdiction. (In re DeLuna, supra, 126 Cal.App.4th at p. 599.)

VI. Disposition

The order of the superior court granting Jeffery’s petition for writ of habeas corpus is modified as follows: The last half of the first full paragraph on page 4 of the order, beginning with the sentence, “There is no evidence supporting the use of the commitment offense . . .” is stricken and replaced with the following:

“There is no evidence supporting the finding that Petitioner’s motive was inexplicable and, therefore, no evidence to support the Board’s reliance upon that finding to deny parole. (Cal. Code Reg., tit. 15, § 2402, subd. (c)(1)(E).) Thus, at the new hearing, the Board may not rely upon the same finding to deny parole.”

As modified, the order is affirmed.

WE CONCUR: Mihara, J., Duffy, J.


Summaries of

In re Jeffrey

California Court of Appeals, Sixth District
Sep 25, 2008
No. H031673 (Cal. Ct. App. Sep. 25, 2008)
Case details for

In re Jeffrey

Case Details

Full title:In re THOMAS JEFFERY, on Habeas Corpus.

Court:California Court of Appeals, Sixth District

Date published: Sep 25, 2008

Citations

No. H031673 (Cal. Ct. App. Sep. 25, 2008)