Opinion
H036076
12-19-2011
In re BYRON KENNETH MILLS, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. 76347)
Appellant Acting Warden Randy Grounds (the Warden) appeals from the superior court's order granting respondent Byron Kenneth Mills's petition for a writ of habeas corpus, vacating the 2009 decision of the Board of Parole Hearings (the Board) finding Mills unsuitable for parole, and ordering the Board to conduct a new hearing on Mills's suitability for parole. The Warden contends that the superior court's order must be reversed because (1) the Board's 2009 decision was supported by some evidence, and (2) the validity of the Board's 2009 decision was "moot" because the Board held a new parole suitability hearing in 2010 and again denied Mills parole. We conclude that some evidence supports the Board's 2009 decision and therefore reverse the superior court's order.
I. Background
Mills married his first wife Rosemarie when she was just 16 years old, after she became pregnant. Mills and Rosemarie "used to fight and argue all the time," and they separated and reconciled several times. Mills punched or kicked Rosemarie at least once, and he also grabbed her by the hands, arms, and shoulders on numerous occasions.
In May 1980, after two years of marriage, Mills and Rosemarie separated. She was 18 years old and he was 21 years old. Mills, who had dropped out of high school and was unemployed, went to live with his mother. Rosemarie and their two young children (aged six months and 18 months) went to live with Rosemarie's mother. In June 1980, Rosemarie told Mills that she was moving in with another man. However, she later told him that she was actually renting a room from a couple. Mills believed that he and Rosemarie were going to reunite soon.
In July 1980, Mills and Rosemarie went on a short vacation together. Upon their return, Rosemarie told Mills that she was living with and sleeping with another man. At the time she made this statement, their son was napping in another room within hearing distance but not seeing distance. Mills immediately responded to Rosemarie's statement by grabbing her by the throat and strangling her to death. Their son awoke and began crying as Mills was in the act of strangling Rosemarie.
Mills, who had no prior criminal history, was convicted of second degree murder and committed to state prison for a term of 15 years to life. Mills got his GED in 1980 shortly before he went to prison. Mills has been incarcerated since 1981, and he has repeatedly been found unsuitable for parole. In prison, he learned several trades including dry cleaning, painting, shoe repair, forklift operator, and masonry. Mills also completed a course on "Owning Your Own Business." He has an excellent disciplinary record in prison, having received just a single "CDC 115" in 1986 for "disobeying orders to return to your unit" and no "CDC 128-A's." Mills has participated in Narcotics Anonymous, although he had no substance abuse problems. Mills also participated in the Victim Offender Education Group program. He remarried in 1985, and he has remained married to his second wife since then. Mills's parole plan was to start a trucking company, but his father had also guaranteed that he would employ Mills at his answering service company and provide him with monthly income. His mother was also willing to provide him with a home.
A 1991 psychological evaluation concluded that Mills had "prosocial responses on the surface; however when the [evaluators] began to probe into some of his statements, they were found to be shallow self-serving, inconsistent, misleading, insensitive, and amorphous. He was obstructive and passive-aggressive . . . ." A 2006 psychological evaluation reported that, as in previous psychological evaluations, Mills denied that he had previously assaulted Rosemarie. "Inmate Mills has maintained throughout psychological interviews over time that he was never abusive toward his former wife . . . ." The March 2008 psychological evaluation, which was the most recent one at the time of the September 2009 hearing, noted that Mills had no diagnosed mental conditions and concluded that he was in the low range for propensity for violence and for general recidivism.
At the time of his September 2009 parole hearing, Mills was 50 years old. He discussed the crime with the Board and described his mental state at the time he killed his wife. "[I]t was like somebody just took a match and just went right on top of my head. I've never felt, to that, prior to that or since, that sensation of being that angry." Mills explained that he was a jealous, controlling, possessive, insecure man who was "not a very nice person" at that time. He recounted how, as a youngster, he had learned that he could gain "instant respect through violence." He had stuttered until he was in high school, and he had discovered that responding with violence stopped other kids from teasing him. He also had a poor relationship with his mother, which he believed set the standard for his relationships with women. Because he felt "small" and "threatened," he tended to respond with violence.
At the September 2009 hearing, the Board found Mills unsuitable for parole and issued a three-year denial. The Board's primary justification for its unsuitability finding was Mills's "past and present attitude about the crime . . . ." The Board concluded that Mills "minimize[d] [his] conduct," made inconsistent statements about both the crime and his prior abuse of Rosemarie, and generally lacked "credibility." Mills had repeatedly told psychological evaluators that he had never abused Rosemarie, but there was significant evidence, including Mills's own statements, that demonstrated he had abused Rosemarie. His refusal to acknowledge this abuse, his attempts to minimize it, and his inconsistencies regarding it were of great concern to the Board. "[W]e have many inconsistencies about what you've done and what you haven't done and what you take responsibility for and what you don't take responsibility for and that you minimize a lot of your behavior that you did." "If we don't feel that what you say today is up front and honest, how are we going to be able to ensure public safety when you're on parole." "[W]hat comes across to the Panel is, is that you just don't have a clue." The Board was also concerned that Mills had become "visibly agitated" and "very upset" in response to a statement by the district attorney regarding Mills's son. "[Y]ou were red in your face, your eyes looked angry and you came across in a very different manner than at any other point in the hearing today when you were talking about [your son]." "[T]here's a lot of understanding that you don't have concerning remorse for what you did to his mom."
The September 2009 hearing was the result of a June 2009 superior court order directing the Board to provide Mills with a new parole suitability hearing.
The Board also found that the commitment offense was atrocious and cruel, in part because Mills's young son was within hearing distance while the murder was being committed.
At a previous parole hearing, Mills had said he had strangled his wife for three to four minutes, but at the September 2009 hearing he claimed that he could not remember how long he had strangled her.
Mills told a prior psychological evaluator that he had broken his wife's ankle, but he did not mention that at the September 2009 hearing when asked about prior abuse of his wife.
In February 2010, Mills filed a petition for a writ of habeas corpus. The superior court issued an order to show cause (OSC). In the OSC, the court asserted that the Board's decision was invalid because "the Board has again denied Petitioner parole, at his September 22, 2009, hearing, because the victim was murdered 'for no discernable, legitimate reason.' " "[T]he Board erroneously, at least to some degree, felt that the crime in and of itself weighed against parole."
The Warden filed a return to Mills's petition. The Warden asserted, among other things, that "this petition is moot" because Mills had received another parole suitability hearing in April 2010 and had been again found unsuitable "based in part on a new psychological evaluation." He therefore argued that Mills had "received all the process due, and this Court could not order any effective relief." The Warden submitted a full transcript of the April 2010 hearing and a copy of the 2010 psychological evaluation in support of his return.
The April 2010 hearing was apparently a rehearing ordered by the superior court of an October 2008 hearing.
The 2010 psychological evaluator reported that Mills continued to "den[y] a history of domestic violence or physical abuse" of Rosemarie. Mills had told the evaluator that he had not been physically abusive of his wife. "[H]e appears to lack a clear understanding of his abusive relational history, and demonstrated a tendency to minimize his behavior in reference to interpersonal relationship violence." The evaluator stated: "[Mills's] overall presentation appeared to be somewhat controlled and guarded. He appeared markedly concerned with impression management. and therefore did not respond impulsively. [Mills's] current level of judgment appears adequate, though his insight appears to be limited. Overall, [the evaluator] did not find [Mills] to be a reliable or credible historian." "[H]e appears to have accepted limited responsibility by continuing to place a preponderance of provocation on the victim. Therefore, he presents as making efforts to rationalize and minimize his role, and appears to lack a full understa[nd]ing of the factors that contributed to his commission of the life crime. [¶] While the inmate verbalized remorse and regret for the life crime, his affect appeared superficial, and his demonstrated empathy and remorse appeared detached and unemotional rather than internal and emotional." Mills "appears to have an [sic] deficient level of insight, and appears to lack a full understanding of the causes and factors that contributed to his commission of the life crime . . . ."
At the April 2010 hearing, the Board relied heavily on the 2010 psychological evaluation and found Mills unsuitable The Board's reasoning was similar to the reasoning it utilized to support its 2009 unsuitability finding. "What we're concerned about is, again, your previous minimization, your credibility, and your changing, first of all, seriously, minimizing what you did and what abuse you perpetrated on Rosemar[ie] before you killed her, which you did." "The concern, of course, was that initially and clear up until not that long ago in relation to when this crime happened is you denied abusing her, controlling her, any of those things before." "Now you've come a long way from '91, and, yes, you understand you were abusive, and you were controlling and these things, but we really don't believe or feel that it's internalized to the point that you can keep that from happening again. You're saying that you've only come to this realization since Commissioner Chrones and Commissioner Kane mentioned it. You just saw Commissioner Chrones in September. It's only been a little while ago." "In other words, it's coming from your head and not your heart, and that's an issue, serious issue, because if it's not coming from your heart it's not part of you. It's just something that you recite off the top of your head or make sure that convincing someone that it's true and genuine." "[S]o we believe that you need to continue to look into [understanding the nature of abuse] and all the dynamics surrounding domestic violence because you're just accepting the fact that you were abusive and it happened over time and it didn't just happen once and you snapped and choked her to death." The Board reasoned that Mills remained "a current risk" because he was not yet "accepting full responsibility." "You still have some work to do and you still are a risk, and that's the bottom line."
In September 2010, the superior court issued an order granting Mills's petition "[f]or the reasons outlined in the [OSC]." The court vacated the Board's 2009 decision and "remanded to the Board with directions to proceed in accordance with due process and to consider all relevant reliable information." The Warden timely filed a notice of appeal.
II. Discussion
Our standard of review is well established. "[T]he judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law, but . . . in conducting such a review, the 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. If the decision's consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner's petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law." (In re Rosenkrantz (2002) 29 Cal.4th 616, 658 (Rosenkrantz).)
The general standard for a parole unsuitability decision is that "a life prisoner shall be found unsuitable for and denied parole if in the judgment of the [Board] the prisoner will pose an unreasonable risk of danger to society if released from prison." (Cal. Code Regs., tit. 15, § 2402, subd. (a) (Regs.).)
Subsequent references to "Regs." will be to this title.
"[C]ircumstances tending to establish unsuitability for parole are that the prisoner (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) previously has sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (Cal. Code Regs., tit. 15, § 2402, subd. (c).)" (Rosenkrantz, supra, 29 Cal.4th at pp. 653-654, fn. omitted.) An offense is considered "especially heinous, atrocious, or cruel" if it "was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering" or "[t]he motive for the crime is inexplicable or very trivial in relation to the offense." (Regs., § 2402, subd. (c)(1).)
"[C]ircumstances tending to establish suitability for parole are that the prisoner: (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his life, especially if the stress has built over a long period of time; (5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use upon release; and (9) has engaged in institutional activities that indicate an enhanced ability to function within the law upon release. (Cal. Code Regs., tit. 15, § 2402, subd. (d).)" (Rosenkrantz, supra, 29 Cal.4th at p. 654.)
"[T]he underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when there is strong evidence of rehabilitation and no other evidence of current dangerousness." (In re Lawrence (2008) 44 Cal.4th 1181, 1211 (Lawrence).) The nature of the commitment offense "does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or postincarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety." (Id. at p. 1214.) "[W]hen there is affirmative evidence, based upon the prisoner's subsequent behavior and current mental state, that the prisoner, if released, would not currently be dangerous, his or her past offense may no longer realistically constitute a reliable or accurate indicator of the prisoner's current dangerousness." (Id. at p. 1219.) Where, on the other hand, there was a history of domestic abuse and, "despite years of therapy and rehabilitative 'programming,' " the prisoner has been demonstrably "unable to gain insight into his antisocial behavior," the Board may properly conclude that the prisoner "remains dangerous and is unsuitable for parole." (In re Shaputis (2008) 44 Cal.4th 1241, 1259-1260 (Shaputis).)
The superior court's order based its reversal of the Board's 2009 decision on the court's conclusion that the Board had based its decision primarily on the nature of the commitment offense. This was an erroneous conclusion. The Board's 2009 decision was not based primarily on the commitment offense itself but on Mills's "past and present attitude about the crime . . . ." The Board essentially found that, despite years of programming, Mills continued to deny that he had abused Rosemarie before killing her, minimized his responsibility for that abuse and for her death, and made numerous inconsistent statements about his prior threats and abuse. In the Board's view, Mills's inconsistent factual statements demonstrated that he could not yet be trusted and therefore remained a danger if released on parole. The Board also raised significant concerns about Mills's dangerousness due to the fact that he became "agitated," "upset," and "angry" during the hearing before the Board.
Thus, the superior court's order was based on a misreading of the Board's decision. The Board did not find Mills unsuitable based solely on the commitment offense. Instead, the Board's decision was based on evidence that Mills remained a current risk due to his current failure to accept full responsibility for his abuse of Rosemarie, his current minimization of his conduct, his continued inconsistent statements, and his present demeanor. These were all appropriate considerations under Lawrence and Shaputis.
The actual reasons for the Board's decision were also supported by some evidence. Mills did not dispute the Board's assertions regarding his demeanor at the hearing. The fact that Mills became angry, upset, and agitated at the hearing reflected that he has not yet learned to adequately manage his anger, which was precisely the circumstance that led to the commitment offense. Mills has long refused to acknowledge that he abused Rosemarie prior to the commitment offense, and he has minimized his abuse by claiming that he merely "restrained" her when she attacked him. As the Board pointed out, Rosemarie was a very small person, and Mills was a large man. Mills's refusal to acknowledge the true nature of his abusive domination of Rosemarie suggests that he has yet to learn enough about domestic violence to ensure that he will not engage in it in the future. Mills has in fact made numerous inconsistent statements about both the commitment offense and his conduct toward Rosemarie and others. The fact that his statements cannot be trusted is, as the Board stated, evidence that he cannot be trusted to adhere to his stated desire to remain nonviolent and may resort to violence. Like Shaputis, "despite years of therapy and rehabilitative 'programming,'" he has failed to come to terms with his "antisocial behavior," and the Board could therefore properly conclude that he is not yet suitable for parole. (Shaputis, supra, 44 Cal.4th 1259-1260.)
Mills argues that there is no support in the record for the Board's finding that he has failed to accept full responsibility for the commitment offense. We disagree. Although Mills previously admitted that he strangled Rosemarie for three or four minutes, he now claims that he does not remember how much time elapsed. Three or four minutes is an appallingly long period during which to strangle one's unresisting wife, and his previous admission demonstrates that he had ample opportunity to stop himself before Rosemarie died. By now declining to remember this key detail, Mills chooses to view the commitment offense as a brief event that was over before he even realized what he was doing. This was properly viewed by the Board as an attempt by Mills to evade taking full responsibility for his offense. And this was not the only instance of Mills attempting to avoid full responsibility for the commitment offense. Mills has long maintained that the commitment offense was provoked by Rosemarie's sudden and surprising revelation that she was living with and sleeping with another man. Yet Mills admitted that he had been aware of her apparent relationship with this man for several weeks prior to the commitment offense, and he was unable to explain to the Board's satisfaction why her subsequent confirmation of that previously known fact would have triggered such a sudden and violent response by Mills. The Board could properly conclude that, by blaming Rosemarie's provocation for his violent act, Mills was attempting to avoid full responsibility for the commitment offense.
Mills also attacks the Board's reliance on his inconsistencies and lack of credibility. These findings were also supported by some evidence. Mills himself gave inconsistent responses at Board hearings and to psychological evaluators. Sometimes he categorically denied any abuse of Rosemarie prior to the commitment offense. At other times, he admitted that he had punched, kicked, and restrained her. Nevertheless, he insisted that none of his acts were abusive. These were not unimportant details as to which Mills could have legitimately failed to recollect. He was repeatedly questioned about this issue by psychological evaluators and the Board. His failure, after nearly 30 years, to be able to give a consistent and honest appraisal of the nature of his relationship with Rosemarie and his inability to admit that he had physically abused her prior to the commitment offense were critical to the Board's determination of whether he had been rehabilitated and was no longer dangerous.
Mills's reliance on In re Moses (2010) 182 Cal.App.4th 1279 (Moses) is inapt. In Moses, the Court of Appeal reasoned that the Governor could not rely on "discrepancies" between Moses's account of the commitment offense and other evidence to find him unsuitable because the Governor had failed to identify a nexus between those discrepancies and Moses's current dangerousness. (Moses, at pp. 1309-1310.) Here, the discrepancies are not between Mills's account of the commitment offense and other evidence but between Mills's own various inconsistent responses regarding both the commitment offense and other events. More importantly, the Board identified a nexus: Mills's statements to the Board and psychological evaluators reflected that he did not recognize that his conduct toward Rosemarie was abusive and that his domestic violence had played a key role in the events leading to the commitment offense. Since Mills could not recognize his conduct as abuse, there was no assurance that he would not again engage in such conduct, which made him dangerous.
Since the Board's 2009 decision was supported by some evidence, the superior court lacked any basis for intervention and should have denied Mills's petition.
Consequently, we need not consider whether the fact that Mills had another parole hearing in 2010 rendered his petition moot.
III. Disposition
The superior court's order is reversed, and the superior court is directed to enter a new order denying Mills's petition.
Mihara, J.
WE CONCUR:
Bamattre-Manoukian, Acting P. J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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