Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 142586
Bamattre-Manoukian, ACTING P. J.
Respondent Phoeun Mey was convicted by guilty plea in 1990 of second degree murder. (Pen. Code, § 187.) He was sentenced in February 1991 to 15 years to life in prison. In August 2009, the Board of Parole Hearings (the Board) found Mey unsuitable for parole. Mey challenged the Board’s decision by filing a petition for writ of habeas corpus in the superior court. The court granted the petition in June 2010, and ordered the Board to hold a new parole suitability hearing within 30 days and to find Mey suitable for parole absent specific new evidence. As the Warden of the prison where Mey is incarcerated (the Warden) did not timely seek a stay of the superior court’s order, the Board held the ordered hearing in July 2010, and found Mey suitable for parole. The Warden’s November 2010 request for a stay of the June 2010 order was denied by this court.
All further statutory references are to the Penal Code.
In the Warden’s appeal of the superior court’s June 2010 order, he contended that the superior court’s June 2010 order should be reversed because there is some evidence to support the Board’s August 2009 decision that Mey is unsuitable for parole. Following completion of the briefing and submission of the matter to this court without oral argument, the Warden filed a “Notice of Abandonment of Appeal.” We will exercise our discretion to order the appeal dismissed pursuant to rule 8.244(c) of the California Rules of Court.
“(1) After the record is filed in the Court of Appeal, the appellant may serve and file in that court a request or a stipulation to dismiss the appeal. [¶] (2) On receipt of a request or stipulation to dismiss, the court may dismiss the appeal and direct immediate issuance of the remittitur.” (Cal. Rules of Court, rule 8.244(c).)
BACKGROUND
Mey’s Social History
Mey was born in Cambodia on February 1, 1972. He is one of nine children, and his whole family came to the United States in 1985. He dropped out of school in the ninth grade because he was having language difficulties. He was arrested twice as a juvenile for joyriding. He turned 18 four months before the date of the commitment offenses. He had been working for an optical company, but was laid off, so he was neither working at the time of the offenses nor attending school.
He did not use drugs or alcohol. He and his siblings lived with his parents, who were on welfare. He told the Board that, because he always ate at home, he “really didn’t need that much money.”
Letters from Mey’s sister Nary and his sister Sophon, as well as from a cousin, and a young niece, were read into the record at the Board hearing. None of the letters offered Mey housing, financial support, or a job upon his release. Although Mey had had a girlfriend for about a year at the time of the commitment offense, she wrote Mey only a few times after he was incarcerated.
The Commitment Offense
On July 7, 1990, at approximately 3:42 p.m., San Jose police officers responded to a video store on Fair Avenue on the report of a shooting. Upon arrival, the officers discovered 41-year-old Chan Khun lying on his back behind the store’s counter with three gunshot wounds to his chest. A single shell casing was found on the floor near the counter, blood spatters were found on the back wall, a bullet hole was found in a cabinet, and two bullet holes were found in another wall. The cash register was not open and it contained $72.87. Khun’s wallet and checkbook also contained money. Khun was transported to a hospital, where he died from his injuries at 4:01 p.m.
Shortly after the officers arrived at the video store, a witness provided them with a scrap of paper on which he had written a partial license plate number. The witness further informed the officers that, after hearing the shots, he observed four young Asian males enter a blue car and drive away. A second witness informed officers that, after he heard shots coming from the vicinity of the video store, he saw five young men exit the store. One of the men was carrying a semiautomatic weapon, and all of them entered a blue Toyota and drove away. A third witness informed officers that, after he heard the shots, he saw three to four young Asian males, one carrying a weapon, run across the parking lot and enter a vehicle. That witness entered the video store, discovered Khun, and called the police. A fourth witness informed officers that, after hearing the shots, he saw several males run toward a blue vehicle, place a weapon in the trunk, and leave the scene. The witness believed that the vehicle was already running at the time the men entered it because he did not hear the vehicle start up.
A record check of the reported partial license plate number revealed a blue Toyota registered to a Mr. Nhim in Oakland. A “be on the lookout” issued the next day, and Oakland police officers observed the vehicle at the registered address. A vehicle stop was initiated when the vehicle left the residence. Nhim and Mey were arrested, as were another adult male (Bon Set Soun) and three male minors, and all of them were transported to the Oakland Police Department and questioned. The men were found to be wearing the same clothing as had been described by the witnesses. Tire tread patterns found at the scene matched the tires on the Toyota, and shoe tread patterns found at the scene matched patterns found on the vehicle’s rear bumper.
After obtaining consent to search the residence of one of the minors, officers recovered an AK-47 assault weapon in the minor’s bedroom. Investigation revealed that the assault weapon was purchased by Soun in 1989 and that a decision was made by the group on July 7, 1990, to perpetrate a robbery in order to obtain money. Mey knew that a robbery was going to be committed, he knew that the weapon was placed in the trunk before the group left Oakland for San Jose, and he knew that the group accessed the trunk before entering the video store. His assignment was to stay by the vehicle and to be the getaway driver. He heard the shots and he drove away with the other men involved after they returned to the car and the weapon was returned to the trunk. He did not think about the fact that somebody could have been shot or killed inside the store. The group returned to Oakland and then left for a party in Sacramento. The police stopped them after their return from the party but before they were all able to return home.
Mey told the Board that he knew the name of his victim, but he did not know anything about the victim’s family situation. He did not know that the victim’s wife was inside the store at the time of the shooting, and he did not know until his 2008 parole hearing that the victim had four children. He was given the opportunity to look at his central file but he declined to do so. The last time he looked at it was “awhile back.”
Defendant was convicted by guilty plea of conspiracy to commit robbery (§§ 182, 212.5, subd. (b)), attempted second degree robbery (§§ 664, 212.5, subd. (b)), and second degree murder (§ 187). He told the Board, “I feel bad about my life crime because I know how it feels to lose somebody that they love, and what I did was wrong and it’s unforgiveable, but I make mistake and make bad choice.” “And now that I’m older, I can admit that I was wrong and I take full responsible for it.” “I accept and assume full responsibility for my action, and I’m also very determined to correct myself so that – so I do not make the same mistake again. I believe that I am capable of doing what is right, so I will continue doing everything I can to improve my life.”
Mey’s Conduct While Incarcerated
At Mey’s May 2008 parole suitability hearing, the Board asked that he “stay disciplinary-free, earn positive chronos, get self-help, learn a trade, [and] get a GED.” He had no CDC 115s in his file. He had three 128-As, the most recent dated June 3, 1996, for disobeying orders. He received a laudatory chrono in August 2008 regarding his work in the upholstery shop, and a laudatory chrono in April 2009 for his participation in a four-hour program on successfully reentering society. He participated in a two-hour video-instruction program dealing with positive dialogue, a video-instruction program called Finding Employment, a series of workshops related to re-entry and employment, a substance abuse treatment program, an anger management program in January 2009, and he continued to participate in Alcoholics Anonymous. He also participated in the weekend soccer league in 2009. His most recent work reports were above average to exceptional. He obtained a certificate of completion of the vocational small engine repair program in 2004, but he was still working on his GED.
CDC 115s document serious misconduct, and 128-As document incidents of minor misconduct.
Mey’s Parole Plans
Upon parole, Mey planned to live in Oakland with his sister Sophon. He did not know what she does for a living or her financial situation, and he did not know who else lives with her, but she is not married and she has two children. The only letter he has had from her is the one read into the record, and he had not talked to her for almost a year. His sister would be his only source of income. His parents were still living on welfare, and he was not sure where they were living because they move a lot. He had no confirmed job offers, but he expected to utilize his skills in the areas of small engine repair or furniture upholstery. He was working in the prison upholstery shop at the time of the Board hearing. His first priority would be to find a job so he could support himself. However, Mey stated that he had not made any effort to find a job or financial support for himself should he be given a parole date.
The letter states: “Dear Sir or Madam, my name is Sophon Mey. I am legal permanent resident since 1984, ... and could be reached at [an address] in Oakland, 94601.... [¶] I am the sister of Phoeun Mey.... The reason why I’m writing... to you, if you could find in your heart to give my brother another chance, I believe he is changed person. He have make his mistake and also he have been doing his time. My brother have been in there for so long now and never got into no trouble with anyone in there, so please give him another chance. We all miss him truly. We want him to come home and be with his family. My brother is a good person. He repect everyone and just make the wrong mistake. That all. So all I’m asking for you to do is give him a chance. Thank you.”
A letter of support from Mey’s upholstery supervisor was read into the record at the hearing. The supervisor reported that Mey was “a very good employee.”
Mey’s Psychological Evaluation
Mey’s most recent psychological evaluation was prepared by Dr. Richard Starrett, on April 14, 2008.
Mey told Dr. Starrett that he got into trouble as a young man because he was “young and stupid, trying to fit in, and [he] was not thinking about the consequences of [his] action.” He got involved in the commitment offense because he was “not thinking, ” and he was “influence by peer pressure.” He “did not think anyone would get hurt.” He knew that his friends had committed robberies in the past, that a few of them were associated with gangs, and that one of them had the weapon. However, he associated with them because he grew up with them and they were friends from his neighborhood.
Mey also told Dr. Starrett that he thought his sentence was fair. He said that he wished the crime had never happened, and that he knew the pain the family must feel because he lost two loved ones while he was in prison. He also said that he did not know how one could make restitution for such a crime. When Dr. Starrett asked Mey what had changed in him so that something like this would not happen again, Mey said that he now thinks before he acts and that he has given great thought to what happened to the victim’s family and to his own family. Mey said that he would avoid people who would get him into trouble.
Dr. Starrett diagnosed Mey with adult antisocial behavior. He used three different assessment guides, the Psychopathy Checklist-Revised (PCL-R), the History, Clinical, Risk Management-20 (HCR-20), and the Level of Service/Case Management Inventory (LS/CMI). Mey’s score on the PCL-R placed him in the low range of psychopathy. His HCR-20 score is in the low range when compared to similar inmates, as he has accepted responsibility for the crime, he has responded well to treatment, he is not impulsive, and he has handled compliance, stress, and destabilizers well within the institutional setting. However, his level of insight is “underdeveloped, ” he needs to be continuously involved in self-help, and he needs to develop plans for community support.
Mey’s score on the LS/CMI placed him in the low range for recidivism. His psychopathy is in the low range, his propensity for violence is in the low range when compared to similar inmates, his general recidivism risk is in the low range, and his likelihood to violate parole is in the low range.
The Board’s Hearing and Decision
The Board concluded that Mey was not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. It found that Mey’s commitment offense was carried out in an especially cruel and callous manner, even considering that his role was the getaway driver and not the shooter, and that he was 18 years old at the time of the offense. The offense was an execution-style murder that was planned in advance, and the victim suffered three gunshot wounds from an AK-47. The motive was “inexplicable” and Mey claimed that he had no expectation of any financial gain, that he just went along with the robbery due to peer pressure.
The Board noted Mey’s lack of criminal history, but found that he had an unstable social history. At the time of the offense he was “hanging out on the streets” with people he knew had committed crimes; he was not working or going to school. Although he had “some positive programming” while incarcerated, and had obtained vocational skills in small engines and upholstery, he had not yet earned a GED. The Board also noted that Mey’s most recent psychological evaluation was generally favorable, and that his last 128-A was in June 1996.
The Board also found that Mey lacked “realistic parole plans” in that he had no verified offers of housing, he had had no contact for a year with the sister he planned on living with, and he had limited knowledge of his family resources and support system. In addition, both the Santa Clara County District Attorney’s Office and the San Jose Police Department opposed a grant of parole.
The Board told Mey that it “thought... the nexus between the commitment offense and your current risk of unreasonable dangerousness to [the] community... is, number one, that you’re still coming to terms with the reasons that you got involved in this robbery in the first place. And until you fully understand this issue, you do remain an unreasonable risk of danger to society. Certainly enhancing this concern are the circumstances under which you plan to parole certainly to a degree. Other than the difference in age, you’re almost going back to... an identical set of circumstances that led you to be involved in the commitment offense. Secondly, the [Board] does have concerns with respect to the issue of remorse, and although you claim you’re remorseful, the [Board] is not convinced that you truly understand the nature and magnitude of the offense. And as recently as your last hearing in 2008, you didn’t know that the victim had four children. All of this information would have been available to you in your Central File. Again, we urged you to always look at the file. Your last opportunity you declined to do that.”
The Board told Mey that “this is going to be a one-year denial” and that he needed to “work on [his] parole plans.” He should tell his family to “make a very specific statement that you can live with whomever it is you’re going to live with. Have them tell us that; that you are welcome to live in the home.” The Board also recommended that Mey’s family members refer him to employment resources in the Oakland area so that he could begin to establish contact with those resources.
The Superior Court Proceedings
Mey challenged the Board’s decision by filing a petition for writ of habeas corpus in the superior court. The court issued an order to show cause and on June 10, 2010, the court granted the petition without holding a hearing. The court ordered the Board “to hold a new hearing within 30 days and to find [Mey] ‘suitable for parole unless new evidence of his conduct or a change in his mental state subsequent to his [prior] parole hearing supports a determination that he currently poses an unreasonable risk of danger to society if released on parole.’ [Citation.]”
The court found that “the Board failed to provide [Mey] individualized consideration in that it (1) used the actions of co-Defendants against [him], and (2) did not make any effort to credit or understand the fact that [his] involvement in the crime seems mainly attributable to the youthfulness and immaturity generally displayed by 18 years olds such as he was.” “There is no evidence [Mey] personally harbored malice or a specific intent to kill. [He] is guilty of murder only vicariously.” “It is of course true that [Mey] knew Soun was going to be armed during the robbery. But this is what makes [Mey] guilty of murder. It does not make his involvement exceptionally egregious, cruel or callous.”
As to Mey’s age at the time of the offense, the court quoted Graham v. Florida (2010) 560 U.S. ___, ___ [130 S.Ct. 2011] (Graham) and stated that, “if considerations of youth and immaturity can, looking forward and based on generalities, preclude extreme punishment, then they should also, looking backward and based on actual evidence of the person[’]s subsequent behavior, inform the parole suitability determination after the person has served a term in prison greater than their free lifetime. This applies to all teenagers not just those under 18.”
“Despite the Board’s professed inability to understand [Mey] or his crime[, ] this is actually a straightforward case and [he] has demonstrated appropriate insight and remorse. [He] has adequately explained that he went along with the robbery out of his misguided juvenile loyalties. He was young and naïve and did not appreciate the real possibility that people could get hurt or killed. While the Board correctly summed this up as ‘peer pressure, ’... the Board failed to comprehend its significance. This case is a classic example of an offender as described in [Graham] by the United States Supreme Court. [Mey] has proven, through his institutional adjustment and behavior, shown by his record and the psych report, that he was not fixed in his corruption and criminal nature but rather it was transient and he has indeed changed.”
The court concluded that “[c]ase law has now made it clear that in the disposition of a habeas corpus petition the reviewing court may enter specific orders or directives curtailing or compelling specific findings or considerations by the Board. This may be limited to individual issues, (e.g., parole plans, [citation]) or it may be all encompassing [citations]. In this case, the Superior Court has already attempted to guide the Board’s focus towards the relevant reliable information pertaining to [Mey’s] youth and the fact that there is no nexus between his co-defendant’s unilateral actions and [his] parole suitability 18 years later. The hearing being considered herein was itself court ordered. In response to the court order the Board appears to have merely paid lip service to these central considerations and again denied parole because of the crime itself by reciting details that only Bonset Soun was responsible for. This case therefore now calls for a more directed and specific Superior Court order.”
Subsequent Proceedings
Pursuant to the superior court’s order, the Board held a new hearing on July 9, 2010, and found Mey suitable for parole. On July 21, 2001, the Warden filed a notice of appeal from the superior court’s order. The record on appeal was filed July 27, 2010, and the Warden’s opening brief was filed October 8, 2010. On November 12, 2010, the Warden filed a petition for writ of supersedeas, seeking a stay of the superior court’s order pending appeal, but this court denied the petition and stay on November 18, 2010. Following completion of the briefing in the appeal, the parties submitted the matter to this court on May 20, 2011, without requesting oral argument. On May 27, 2011, the Warden filed an abandonment of the appeal.
On May 31, 2011, the Clerk of the Court was informed by the Attorney General that Mey had been released on parole.
DISCUSSION
The Board retains the authority to rescind the grant of parole for good cause prior to the prisoner’s release (§§ 3041.5, 3041.7; In re Rosenkrantz (2002) 29 Cal.4th 616, 659, fn. 13 (Ronsenkrantz)) and, after a prisoner has been released on parole, both the Board and the Governor have the power to suspend or revoke parole for cause. (§§ 3060, 3062, 3063; Rosenkrantz, supra, at p. 659, fn. 13.) If this court reversed the trial court’s June 10, 2010 order pursuant to which the Board held the July 9, 2010 parole suitability hearing and found Mey suitable for parole, it would constitute good cause for the Board to suspend or revoke Mey’s parole.
However, by notifying this court of the abandonment of the appeal, the Warden has presumably determined that there is no basis to contest the Board’s finding that Mey is now suitable for parole. Accordingly, we will treat the “notice of abandonment” as an implicit request that we dismiss the appeal in accordance with rule 8.244(c), and we will exercise our discretion to dismiss the appeal.
DISPOSITION
The appeal is ordered dismissed pursuant to rule 8.244(c) of the California Rules of Court. The remittitur shall issue forthwith.
WE CONCUR: MIHARA.J. LUCERO, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
All further rule references are to the California Rules of Court.