Opinion
A146227
02-24-2017
In re DWAYNE REYNOLDS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 103977)
Dwayne Reynolds, a 56-year-old prisoner, was sentenced to serve 26 years to life in prison after a jury convicted him of murdering his employer, Timothy Fitting, in 1990. He has been incarcerated in San Quentin Prison since then and eligible for parole since August 21, 2007. Reynolds was granted parole by the Board of Parole Hearings on June 12, 2014. The Governor reversed the Board's grant of parole on October 31, 2014.
We shall find that the Governor's reversal of the grant of parole is unsupported by some evidence and therefore arbitrary and unreasonable. As Reynolds was deprived of his constitutional right to due process he is entitled to immediate release from prison.
STATEMENT OF FACTS
Reynolds's Background
Reynolds, who is now 56 years old, and his sister were raised by a loving mother and a father who was largely absent, dissolute, and occasionally violent. After he badly beat Reynolds and his mother, Reynolds abandoned any hope of a relationship. He began using marijuana and drinking beer while in middle school, and began using drugs regularly when he was 19. After graduating from high school and attending Chabot College for one year, he was employed by the United States Postal Service, which enabled him to support his drug habit. After a friend died he began to use crack cocaine regularly for almost 10 years.
Reynolds's only prior criminal offense was an assault in 1983 resulting from a drug dispute with another user who he stabbed six or eight times. For that offense Reynolds was placed on probation after serving eight months in jail.
The Commitment Offense
In 1990, Timothy Fitting, who did not know Reynolds was addicted to cocaine, hired him to be a shipping clerk at the Palace Parker Company in Oakland. Soon after he was hired, while on his way to a training class, Reynolds ran into a friend with whom he had experimented with marijuana and other drugs many years earlier and asked if he knew where he could obtain crack cocaine. The two then went outside the Palace Parker Company building to smoke cocaine apparently provided by the friend. After a period of time in which they consumed all the cocaine, Reynolds entered the building to find something to steal that he could sell to obtain money to buy more cocaine, and decided to take a desktop computer from Fitting's office. Later, after he sold the computer and purchased more cocaine, Reynolds and the friend returned to the Palace Parker business office and smoked cocaine most of the night. About 4:30 a.m., the friend left and Reynolds remained there alone. When Fitting arrived at the jobsite to begin work, Reynolds feared he would discover his computer missing. He therefore lured Fitting to the rear of the building where he knew there was a three foot long wrench. Having at that point decided to kill Fitting, to avoid the embarrassment of being found out as a thief and drug addict, Reynolds repeatedly hit Fitting in the back of his head until he fell to the ground, when Reynolds believed he was dead. Reynolds then left the building. However, realizing he had no money, Reynolds went back into the building, took the wrench and Fitting's wallet, and left. He then disposed of the wrench in a garbage can, went to his uncle's house, and changed his clothes.
After returning to the jobsite in the morning, Reynolds pretended to "discover" Fitting's dead body and notified other employees, one of whom called the police. The police questioned Reynolds, who feigned ignorance of who may have killed Fitting. He then left the building and went to his mother's house. Two days later the police came to the house and took Reynolds to police headquarters where he was interrogated. After about two hours, Reynolds confessed to killing Fitting.
Reynolds's Institutional Behavior
As noted by the deputy commissioner at the 2014 parole hearing, Reynolds's performance during the 26 years he has served in prison has been "exemplary." He has taken "every possible opportunity to engage in self-help," and has never received even a minor disciplinary report. Since his last parole hearing in 2011, Reynolds participated in 39 self-help and educational programs and became a certified alcohol and drug abuse counselor. Many of the programs he participated in—such as the Restorative Justice program, the Addiction Recovery Counsel program and, particularly, the certification program of the California Association of Alcohol and Drug Abuse Counselors (CAADAC), which requires 4,000 hours of training —are lengthy and demanding. Reynolds has also received over 80 laudatory chronos from prison staff, prison chaplains, representatives of Patten University and other in-prison educational programs, and many directors and facilitators of programs focusing on anger management, impulse control training, substance abuse, and forms of self-examination designed to develop behavioral changes conducive to successful reintegration into society. The Board panel was particularly impressed by a laudatory chrono from a prison official who had interacted with Reynolds for more than a decade as a correctional counselor, facility captain and ultimately an associate warden of San Quentin Prison.
Reynolds has received an offer of employment as a substance abuse counselor at the Options Recovery program in Berkeley, where he would handle intake and discharge, and assess applicants seeking to participate in the program. Reynolds's family informed the Board that it will support him upon release and provide him a place to live in Oakland, and was also able to help him find restaurant employment. A representative of Volunteers of America told the Board it too could assist Reynolds in obtaining employment through the Golden State Works program, which is monitored by CalTrans.
A remarkably great number of community based professionals who worked with Reynolds in a variety of San Quentin programs sent letters to the Board attesting to his suitability for release and enormous capacity and desire to be of service to others after release from prison. The letter from Rochelle Edwards, director of the Restorative Justice program at San Quentin, who worked with Reynolds for a decade, is typical of scores of letters to the Board in Reynolds's behalf. The purpose of Edwards's program "is to help offenders hold themselves accountable for their crimes and understand the impact their actions have had on their victims." Reynolds assisted her as the "steward" of an advanced program he "envisioned and implemented" which helped inmates "do the internal work of healing their lives so they can live a life free of violence and crime." Edwards's letter to the Board stated that she had "witnessed first-hand [Reynolds's] transformation and healing over the last 6 years. He came into my group wanting to gain more insight into himself, his crime, and if possible, to create an opportunity to reconcile with the surviving victims of his crime," and actually had the opportunity to meet with a relative connected to his victim, Timothy Fitting. Edwards stated that over the years, "Reynolds has greatly increased his emotional intelligence. He is able to identify, understand and express himself in healthy ways and resolve conflict successfully. [Reynolds] is an inspiration and role model for others and is respected greatly in the prison community by both prisoners and staff alike." Edwards expressed confidence Reynolds "will be a contributing member to society once released," and the staff of her program "hope to be able to work with Reynolds once he paroles employing him to facilitate VOEG [Victim Offender Education Group] classes for other parolees and at-risk youth."
The 2014 Parole Hearing
The June 12, 2014 hearing, which was Reynolds's third parole hearing, focused on the extent of Reynolds's insight into the factors that led him to brutally kill Fitting, and his efforts to ensure he could stay drug free if released on parole.
Asked at the outset of the hearing how he now felt about what he had done, Reynolds said "[t]here's not a day that goes by that I don't give thought to what I've done. And the guilt that I feel each and every day, it's overwhelming. It's something I truly regret." Reynolds believed one of the major reasons he murdered a good man who had provided him a job, was deep seated anger at himself for years of drug abuse that was misdirected to Fitting. The choice he made, to kill a man in an attempt to avoid the shame that would result from the revelation he was a thief and a drug addict was "terrible." Reynolds attributed his act in large part to his failure to honestly confront his addiction and everything else "going on in my life at that time."
It is clear from the transcript of the hearing that the Board panel was heavily influenced by the "Comprehensive Risk Assessment" of Reynolds made by Dr. Michael Venard in February 2011, and the "Subsequent Risk Assessment" made by Dr. Richard Hayward in December 2013, which examined "whether or not there have been any major changes" in the quality of Reynolds's insights about himself and his crime after Dr. Venard's earlier assessment. Much of the Board hearing consisted of a discussion of these two psychological evaluations.
After noting that Dr. Venard had concluded that even then Reynolds presented a "low risk of committing future violent behavior," Dr. Hayward felt two positive developments strengthened that conclusion. The first, Dr. Hayward stated, was Reynolds's "continued progress as a chemical dependency counselor."
The second positive development Dr. Hayward reported related to Reynolds's increasing insight into the factors that led to his crime, and his continuing efforts to effectively address them. With respect to these issues, Commissioner Sellwood focused on the following paragraph in Dr. Hayward's report, which he read into the record.
"Mr. Reynolds has accepted full responsibility for murdering Timothy Fitting by bashing his head with a wrench. He was able to describe his motivations for the murder as including his desire to escape detention for the theft of the computer and primarily to avoid what he described as the unbearable thought of Mr. Fitting discovering he was a thief and a drug addict. He explained that his thinking was warped by his addiction to crack cocaine and his intoxication on the drug impaired his ability to think clearly at the time of the offense. He observed that he now understands that he had many options other than killing Fitting that morning, and that Fitting likely would have offered assistance if he had honestly disclosed what he had done. He noted that intense shame over his addiction to cocaine was a primary motivation for his maladaptive behavior over several years. He added that he has developed the skills of identifying feelings such as hurt, shame and inadequacy and is now able to communicate his emotional reactions to trusted friends or associates. He stated that he understands that nearly every problem can be managed by processing his feelings and obtaining assistance from others. He also noted that he has internalized positive ethical values through his commitment to his Muslim faith."
Commissioner Sellwood emphasized that the earlier assessment by Dr. Venard demonstrated that Reynolds's efforts to improve himself were not new but longstanding and continuing. The commissioner made this point by reading aloud Dr. Venard's description of Reynolds's achievements back in 2011: " 'Reynolds was able to describe learning anger management skills while participating in self-help programming as noted above. He [learned] how to identify his painful feelings such as shame and embarrassment and to process them by communicating with others. He explained that he . . . is an addict and was dependent on cocaine in addition to abusing alcohol. He described triggers that included holidays, having money [enabling him to purchase cocaine], or being lonely and angry. He summarized his relapse prevention plan as including participation at Options Recovery Services where he will work as a counselor, continuing to attend 12-step meetings, [practicing] his Muslim faith, maintaining employment and exercise, remaining calm through meditation and prayer in addition to deep breathing, walking for exercise, remembering to always process his feelings, and resolve interpersonal problems by talking and maintaining communication with a support network of clean and sober family, friends, and mentors.' " Commissioner Sellwood's point was that the low risk of violence attributed to Reynolds by Dr. Venard in 2011was "mitigated or lowered" even further by the continuing positive developments described by Dr. Hayward three years later.
The panel was, however, concerned about a comment made by Dr. Venard in his 2011 assessment. After commending Reynolds for his "exceptional work history," "complete lack of any disciplinary write-ups," his recognition of "many of the underlying factors contributing to past drug use," and the "obvious commitment to sobriety that characterizes his prison-based history," Dr. Venard felt there was a "remaining question about the specific emotional factors that triggered past substance abuse." Pointing out that although Reynolds identified chronic insecurity as a factor contributing to his drug use, "there is no documentation or self-report of any additional or more specific/situational factors that might have shaped this use history. In light of his apparently spontaneous decision to use cocaine as opposed to follow through with the prosocial supports/training plan he had already developed, it does seem clinically valid to suggest that some additional emotional factors (i.e., boredom, depression, or some as yet unidentified issue) might have contributed to the drug use episodes he described as binge type occurrences."
Picking up on this concern, Presiding Commissioner Turner asked Reynolds whether he could explain why, though he had not used cocaine for a day or two, running into an old friend stimulated the binge use of cocaine that contributed to his commission of a brutal homicide. Reynolds answered that the "trigger" of his use that day was not just the excitement of meeting a friend he hadn't seen in years with whom he had first experimented with drugs, but the additional fact that he had just been paid and had money in his pocket. Reynolds explained that buying cocaine compulsively whenever he was financially able to do so has "always been my pattern, sadly enough." Earlier in the hearing, Reynolds had also referred to "having money in my pocket" as one of the significant triggers of his drug use, although it reflected deeper problems and needs he had discussed with Dr. Hayward. Before Reynolds was hired by Fitting he had worked for a long period for the post office and received a regular government paycheck, so that he usually had little difficulty procuring cocaine, upon which he increasingly became dependent. Because cocaine gave him a euphoric feeling, substantially increased his self-confidence, and enabled him to overcome his stutter and communicate more effectively with women, Reynolds "would buy cocaine every payday" and smoke it in binges "until he ran out of money." As Reynolds stated at the hearing, "most of the time that I used drugs was surrounding my monies, any time that I got paid. And that particular day . . . I put myself in a high risk situation, you know. I shouldn't have left work early that day first of all, and excited about seeing a friend I hadn't seen in years."
Although Board regulations allow an inmate to refuse to discuss his or her commitment offense without prejudice (Cal. Code Regs., tit. 15, § 2236), Reynolds agreed to do so and was questioned about the details of the crime by an Alameda County Deputy District Attorney. The district attorney also made a closing statement as to why the panel should not grant Reynolds a parole date. In that statement the district attorney emphasized a paragraph in Dr. Venard's 2011 risk assessment of Reynolds that the Board had not referred to during the hearing. The paragraph is as follows:
All further references to regulations (Regs.) are to title 15 of the California Code of Regulations, section 2000 et seq. (Crime Prevention and Corrections, Div. 2, Board of Parole Hearings.)
" 'When asked to discuss the factors shaping this event, Reynolds identified his drug use on that night and the accompanying cognitive/problem-solving distortions as relevant issues. As noted above, he has identified some of the general factors shaping his drug use, but he has not yet specifically discussed why he had elected to return to drug use [on that] night with a man he had not seen in many years. . . .' 'Given the similarity between the life crime and the previously noted drug-fueled argument resulting in an assault charge in 1983, it also seems relevant to suggest Reynolds work to identify the underlying triggers to anger aggressiveness that appear to have been associated with some (but not all) incidents of drug use. Specifically, he has said that each act of violence involved a conflict with a person he felt close to in some manner. Nevertheless, Reynolds has not yet identified any of the emotional cognitive factors shaping these incidents.' " The district attorney argued that this concern of Dr. Venard has not been "addressed in the hearing today or in the Subsequent Risk Assessment prepared for this hearing. So while there are many things in the positive column, the extremely critical issues as to what led him to such extreme behavior . . . have not been sufficiently addressed to ensure the Panel that once he's outside, gets a job, has some money in his pocket, that if that's his true reason, it's not going to happen again."
As we shall see, in reversing the Board's grant of parole the Governor relied upon the very same paragraph in Dr. Venard's 2011 evaluation of Reynolds emphasized by the district attorney.
After a recess, at which the Board panel deliberated, Presiding Commissioner Turner told Reynolds that "the Panel's decision must be based upon evidence in the record of your current dangerousness," and that after reviewing "the entire written record before us including your Central File, which is on computer, the Comprehensive Risk Assessment, the Subsequent Risk Assessment, the previous hearing transcripts, the written responses from the public, as well as the testimony presented at the hearing today . . . this Panel finds you suitable for release."
The Presiding Commissioner acknowledged the brutality and senselessness of Reynolds's "horrendous" crime and that it may never "be really understood why you made those choices" but also pointed out that "we have to consider that you've taken responsibility for this crime. You didn't minimize it. You didn't try to deflect or blame anything else, drugs or anything else." He went on to explain that the panel felt Reynolds's remorse was sincere, that he has "an understanding at least to the degree that you can of the impact this has had on the victim's family," that he did not have an extensive criminal history, and that his institutional behavior had always been exemplary. Reynolds received no disciplinary write-ups during his imprisonment, "had a lot of support and laudatory chronos from staff basically indicating that you were a responsible, mature, likeable person," and he committed his crime at a time when there was stress in his life and he was addicted to drugs.
The Presiding Commissioner stated that the panel was particularly impressed with Reynolds's high level of involvement in "meaningful self-help programming and therapy and groups pretty much your entire prison incarceration. Since your last hearing in 2011 you have completed 39 additional self-help groups and been trained as a drug and alcohol counselor and you've been offered a job in that arena when you get out of prison in the transitional program that you're going to parole to. And so it does indicate to this Panel that you do have a better understanding, not only a personal experience of drugs and the impact of drugs, but the textbook understanding as well, that you've invested a lot in that CAADAC, and that you've taken it seriously and that the folks that have worked with you in that endeavor who believe that you will make a good counselor and that you'll be able to give back and help others."
As earlier noted, the panel paid particular attention to the comprehensive and subsequent risk assessments of the doctors who met with and evaluated Reynolds after his last parole hearing, all of which showed Reynolds had a low risk of reoffending. As the Presiding Commissioner observed, the latest risk assessment "indicates that you do take full responsibility, that you understand your motivations behind the murder, and that the true intent was your desire to escape detection from theft of the computer and primarily to avoid what you described as the unbearable thought of Fitting's discovery that you . . . were a thief and a drug addict. And you go on to explain some other contributing factors, your self-esteem issues, your stuttering, your need to fit in, you're taking the drugs to help you communicate better, and some of those other issues that you've noted." The panel felt Reynolds had examined and explained his "emotional connection to your crime and to your past criminal history," and that he had satisfactorily answered "the concerns that one of the doctors expressed" in an earlier risk assessment the Board considered at Reynolds's last parole hearing.
Finally, the Board placed weight on the facts that Reynolds did not exhibit assaultive behavior as a juvenile, did not have a long criminal history, and his advanced age, all of which indicated a low risk of recidivism. The panel was also influenced by Reynolds's sensible parole plan, which was based on employment as an intake and screening officer for a drug and alcohol abuse recovery program in Berkeley, which the panel felt would also provide "less chance of reoffending."
Asked if he had anything else to add, Deputy Commissioner Sellwood echoed the views of the Presiding Commissioner adding only that the panel had tried "to find a nexus between some evidence and a current unreasonable risk to public safety . . . but were not able to find that nexus."
After granting Reynolds parole, the Board calculated that he had served in excess of his adjusted base term of 21 years. The Board also told Reynolds that he will be subjected to special conditions of parole, including random drug testing.
The Governor's Reversal of the Board's Grant of Parole
In his decision reversing the decision of the Board, the Governor acknowledges at the outset that "Reynolds has made efforts to improve himself while incarcerated" and commends him for having become a certified substance abuse counselor, participating in extensive self-help programming, receiving positive ratings from his work supervisors and commendations from prison staff, and for having "never been disciplined for any misconduct during the 24 [sic] years he has been incarcerated." However, the Governor added, these positive steps "are outweighed by negative factors that demonstrate he remains unsuitable for parole." The Governor relied on two factors.
The first was that Reynolds's crime was "extraordinarily heinous. Reynolds waited for Fitting to arrive at work, distracted him, and then viciously attacked him with a wrench, bludgeoning him nearly 30 times" Moreover, "[t]his was not the first time that Reynolds had reacted violently in a drug-related situation. In 1983, he was convicted of assault with a deadly weapon after he stabbed someone numerous times during an altercation related to crack cocaine."
The second factor, which the Governor dwelt upon at greater length, was the concern that "Reynolds has not sufficiently explored the connection between his drug use and his violence." "Reynolds admits that he had a debilitating drug problem, particularly related to his use of crack cocaine for eight years before the murder. He told the Board that he decided to kill Fitting because when he stole the computer 'that was a game changer . . . . There was so much shame, so much hurt that I would stoop that low to steal from someone that cared for me . . . . He said that he struck [the victim] so many times 'to make sure that [he] was dead,' and because 'I was so much full of anger, enraged, directed at myself. I had spent so many years of chasing drugs where I had become so ashamed, and I felt so bad that I could steal from someone that was so good to me, and in my thinking was that I couldn't face Timothy.' "
After noting that it was "unclear to me" why Reynolds's fear of disappointing Fitting, and his anger at himself, "would propel him to bludgeon Fitting so many times," the Governor relied upon the paragraph in the comprehensive risk assessment of Reynolds undertaken by Dr. Venard in connection with Reynolds's 2011 parole hearing, which, as previously noted, had been emphasized by the district attorney at the hearing. Like the district attorney, the Governor observed that Dr. Venard noted that while "Reynolds's understanding of his drug use and violent behavior was developing, he could further develop 'the underlying triggers to anger/aggressiveness that appear to have been associated with some (but not all) incidents of drug use' and had yet to identify 'any of the emotional/cognitive factors shaping' his violent acts." The Governor concluded that, though Reynolds had taken steps to address his substance abuse problem, "[g]iven the severity of this murder . . . until Reynolds can better explain his decision to murder Fitting and the extreme violence he used when doing so, I do not believe that he is prepared to be released." Considering the evidence as a whole, the Governor found Reynolds "currently poses an unreasonable danger to society if released from prison" and on that ground reversed the Board's decision to parole Reynolds.
On June 18, 2015, in response to Reynolds's petition for writ of habeas corpus, the Alameda County Superior Court denied the petition, concluding that the Governor's decision "took into consideration all relevant and reliable factors, was based on individualized consideration, and is supported by some evidence."
On September 15, 2015, Reynolds, acting in propria persona, filed a petition for writ of habeas corpus in this court. We requested opposition, which was filed on October 16, 2015, and Reynolds replied on November 4, 2015. On December 14, 2015, we issued an order to show cause and subsequently appointed counsel and authorized her to file a supplemental petition.
On November 6, 2015 the Board held a parole hearing at which appellant was denied parole and the Board specified that his next hearing would be no later than April 15, 2017. The denial of parole after the Governor's October 31, 2014 reversal of the Board's prior grant of parole does not moot this habeas corpus proceeding. (In re Copley (2011) 196 Cal.App.4th 427, 437.)
DISCUSSION
We review the Governor's decision under a " 'highly deferential "some evidence" standard.' " (In re Young (2012) 204 Cal.App.4th 288, 302 (Young), quoting In re Shaputis (2011) 53 Cal.4th 192, 221 (Shaputis II).) "[T]he appellate court must uphold the decision of the Board or the Governor 'unless it is arbitrary or procedurally flawed,' and it 'reviews the entire record to determine whether a modicum of evidence supports the parole suitability decision.' ([Shaputis II ], at p. 221.) 'The reviewing court does not ask whether the inmate is currently dangerous. That question is reserved for the executive branch. Rather, the court considers whether there is a rational nexus between the evidence and the ultimate determination of current dangerousness. The court is not empowered to reweigh the evidence.' (Ibid.) At the same time . . . the Board's decision must ' "reflect[ ] due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards." ' ([Id.] at p. 210, quoting [In re ] Rosenkrantz [(2002)] 29 Cal.4th [616,] 677, and citing [In re] Lawrence [(2008)] 44 Cal.4th [1181,] 1204 (Lawrence), and [In re ] Shaputis [(2008)] 44 Cal.4th [1241,] 1260-1261 [(Shaputis I)].)" (In re Stoneroad (2013) 215 Cal.App.4th 596, 616 (Stoneroad).) We are required to affirm a denial of parole "unless the Board decision does not reflect due consideration of all relevant statutory and regulatory factors or is not supported by a modicum of evidence in the record rationally indicative of current dangerousness, not mere guesswork." (Ibid.)
The nexus to current dangerousness is critical. "Lawrence and Shaputis I 'clarified that in evaluating a parole-suitability determination by either the Board or the Governor, a reviewing court focuses upon "some evidence" supporting the core statutory determination that a prisoner remains a current threat to public safety—not merely "some evidence" supporting the Board's or the Governor's characterization of facts contained in the record.' ([In re] Prather [(2010)] 50 Cal.4th [238,] 251-252.)" (Stoneroad, supra, 215 Cal.App.4th at p. 615.) " '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.' (Lawrence, supra, 44 Cal.4th at p. 1212, italics added.) The Board 'must determine whether a particular fact is probative of the central issue of current dangerousness when considered in light of the full record.' (Prather, . . . at p. 255, italics added.)" (Young, supra, 204 Cal.App.4th at p. 303.) " '[T]he proper articulation of the standard of review is whether there exists "some evidence" demonstrating that an inmate poses a current threat to public safety, rather than merely some evidence suggesting the existence of a statutory factor of unsuitability. (Lawrence, . . . supra, 44 Cal.4th at p. 1191.)' (Prather, . . . at pp. 251-252.)" (Shaputis II, supra, 53 Cal.4th at p. 209.)
The Governor's written decision does not refer to any of the regulative factors indicative of suitability for release on parole or unsuitability for release (other than the gravity of the commitment offense), but his silence seemingly indicates an acknowledgment that all of the applicable factors indicating suitability apply to Reynolds and none of those indicative of unsuitability—save the gravity of his commitment offense—are applicable to him. Apparently conceding that Reynolds demonstrates all of the qualities Board regulations deem indicative an inmate is suitable for release, the Governor focuses on a paragraph in Dr. Venard's 2011 risk assessment as a basis for concluding that, "[g]iven the severity of this murder," Reynolds remains a security risk and is unsuitable for release, "until [he] can better explain his decision to murder Fitting and the extreme violence he used when doing so."
That is, he does not have a juvenile record of assaults or crimes with a potential of personal harm to victims, he "has experienced reasonably stable relationships with others," he has performed acts tending to show remorse or indicating he "understands the nature and magnitude of the offense," he committed the crime as a result of significant stress in his life, he "lacks any significant history of violent crime," his "present age reduces the probability of recidivism," he has made realistic plans for release or developed marketable skills that can be put to use upon release, and his "[i]nstitutional activities indicate an enhanced ability to function within the law upon release." (Regs., § 2402, subd. (d).)
That is, he does not have "a history of unstable or tumultuous relationships with others," has never committed a sadistic sexual offense, does not have a history of severe mental problems related to his offense, and has not "engaged in serious misconduct in prison or jail." (Regs., § 2402, subd. (c).)
The Governor states that he "considered the evidence in the record that is relevant to whether Reynolds is currently dangerous," but it is evident that he gave unusual weight to the gravity of Reynolds's offense, which he justifiably described as "extraordinarily heinous." It must be remembered, however, that as our Supreme Court has said, "there are few, if any, murders that could not be characterized as either particularly aggravated, or as involving some act beyond the minimum required for conviction of the offense." (Lawrence, supra, 44 Cal.4th 1181 at p. 1218.) As the Lawrence court recognized, if the circumstances of the commitment offense are egregious, as may be so here, "those circumstances will provide some evidence of current dangerousness in perpetuity." (Id. at p. 1219.) Lawrence explains that the Legislature cannot have countenanced that result because it "considered the passage of time—and the attendant changes in a prisoner's maturity, understanding, and mental state—to be highly probative to the determination of current dangerousness." (Id. at pp. 1219-1220.)
We are concerned with the Governor's preoccupation with the "egregiousness" of Reynolds's homicide—which is immutable and cannot alone support the denial of parole (Lawrence, supra, 44 Cal.4th at pp. 1226-1227)—and the little weight he placed upon the statutory and regulatory factors concerning parole suitability (Pen. Code, § 3041, et seq., Regs., § 2230 et seq.), which the Supreme Court has repeatedly said must all be duly considered (see, e.g., Shaputis II, supra, 53 Cal.4th at p. 210; In re Rosenkrantz, supra, 29 Cal.4th at p. 677; see also Lawrence, at pp. 1204, 1219; Shaputis I, supra, 44 Cal.4th at pp. 1260-1261). There is, however, another factor.
We feel compelled to reverse the Governor's decision because his crucial determinations—that Reynolds has not developed an adequate understanding of the triggers associated with some of his incidents of drug use, and he must "better explain his decision to murder Fitting"—is based on stale evidence. The Governor has arbitrarily ignored pertinent evidence that is more recent and more probative than that he relied upon.
As we have explained, like the district attorney, the Governor fixed upon a paragraph in the comprehensive risk assessment of Reynolds prepared by Dr. Venard in 2011, which stated that Reynolds "has not yet identified any of the emotional/cognitive factors" shaping his drug use at the times he murdered Fitting and assaulted a man in 1983. As we explain presently, the subsequent risk assessment of Reynolds prepared by Dr. Hayward three years after Dr. Venard's assessment demonstrates that Reynolds has identified the "emotional/cognitive factors" Dr. Venard found missing.
Preliminarily, it deserves to be emphasized that ordinarily "the most recent evidence as to the inmate's level of insight will be particularly probative on the question of the inmate's present dangerousness," because "[u]sually the record that develops over successive parole hearings has components of the same kind: [California Department of Corrections and Rehabilitation] reports, psychological evaluations, and the inmate's statements at the hearings. In such cases, the Board or the Governor may not arbitrarily dismiss more recent evidence in favor of older records when assessing the inmate's current dangerousness." (Shaputis II, supra, 53 Cal.4th at p. 211.)
The situation in Lawrence, supra, 44 Cal.4th 1181, in which the Governor's reversal of a Board decision to grant parole was reversed, is instructive on the need to look to the most recent evidence of suitability. In that case the Governor concluded the petitioner continued to pose a threat to public safety because she was not remorseful and continued to attempt to justify the victim's murder, relying on statements the petitioner made at Board hearings in 2002 and 2005. In doing so the Governor ignored subsequent psychological assessments and transcripts of suitability hearings that were before the Board demonstrating that the petitioner "consistently, repeatedly, and articulately has expressed deep remorse for her crime." (Id. at pp. 1222-1223.) Suggesting that the petitioner in Lawrence had serious psychiatric problems and that her release would also pose an unreasonable risk of danger to the public, the Governor also recited "negative language found in several early psychiatric evaluations" that were undermined by the positive psychological assessments of petitioner in subsequent evaluations years later. The Supreme Court reversed the Governor's decision because "the positive psychological assessments of the petitioner . . . undermined the evidentiary value of these dated reports setting forth stale psychological assessments." (Id. at pp. 1223-1224.)
The opinions in Shaputis I and Lawrence are not alone in condemning the use by the Board or Governor of stale psychological assessments. (See, e.g., In re Gaul (2009) 170 Cal.App.4th 20, 38 [Board's assessment of petitioner's mental state "irretrievably flawed by its reliance on a dated 1997 psychological report" which was undermined by subsequent evaluations strongly supporting release], disapproved on another ground in Prather, supra, 50 Cal.4th at p. 252; In re Aguilar (2008) 168 Cal.App.4th 1479, 1490 ["Where, as here, a stale negative psychological evaluation is superseded by subsequent positive evaluations, the previous negative evaluation does not constitute evidence that the inmate poses a current danger to the public"].)
This case differs from the four we have just cited only in that the earlier evaluation of Reynolds the Governor relied upon was not negative. As we have explained, "based upon analyses of actuarially, empirically, and clinically derived static and dynamic risk factors," Dr. Venard concluded that Reynolds "presents a low risk of committing future violent behavior." Among many other positive things, Dr. Venard noted that Reynolds has expressed genuine remorse ever since he initially confessed to the crime. Further, "he has also tried to address the impact his actions had upon the victim's family," telling Dr. Venard he received correspondence from the victim's daughter that helped him better understand the magnitude of his actions. "Reynolds spontaneously expressed his awareness that he is not 'entitled' (his term) to release but he has nevertheless made the decision to address the factors shaping his actions on that day and [will] make an effort to live a positive life in the future." In Dr. Venard's opinion, Reynolds's "desire for a substance free life" was "sincere."
Dr. Venard also indicated that Reynolds had then "learned to recognize many of the underlying factors contributing to his drug use," including his "chronic insecurities," his "overwhelming desire to be included in social activities with others who were involved in substance abuse," his "lack of confidence to associate with pro-social peers," and the "mix of drug-fueled bravado and chronic guilt/shame" he experienced "prior to the life crime." Dr. Venard also credited Reynolds's "increased sense of his own strengths and weaknesses," his belief that "he is now emotionally aware and no longer afraid to face the insecurities that arise," his confidence "in his pro-social choices" and his expressed unwillingness "to remain involved in a relationship or circumstance that requires dishonesty or deception," which was the case at the time of the life offense.
Dr. Venard's assessment of Reynolds in 2011 was "negative" only in the sense that it was not as positive as the one conducted three years later that the Governor ignored, which made clear Reynolds had during that period satisfied Dr. Venard's concern that he needed to better identify the underlying triggers to the "anger/aggressiveness" associated with incidents of his drug use that resulted in violence, and the "emotional/cognitive factors shaping these incidents."
As Commissioner Sellwood pointed out at the parole hearing, Dr. Venard lauded Reynolds's awareness that drug abuse was at the heart of his problem, his sincere desire to understand and address this issue, and his longstanding efforts to improve himself. Dr. Venard also believed Reynolds had realistic plans to prevent relapse into alcohol and substance abuse, such as by working as a counselor at a recovery program, continuing daily participation in 12-step programs, and a variety of other activities designed to maintain constant communication "with his support network of clean and sober family, friends, and mentors." As Commissioner Sellwood noted, the low risk of violence attributed to Reynolds by Dr. Venard in 2011 was "mitigated or lowered" even further by the increasingly positive developments described by Dr. Hayward three years later.
In a portion of the 2013 assessment entitled "INMATE UNDERSTANDING OF LIFE CRIME," Dr. Hayward quotes Reynolds at great length regarding the details of his brutal murder, which he could have refused to discuss without prejudice to himself, and his understanding of why he committed the offense, as follows:
Board regulations gave Reynolds the right to "refuse to discuss the facts of [his] crime," in which instance a decision is required to be made "based on the other information available and the refusal shall not be held against [him]." (Regs., § 2236; see also In re Jackson (2011) 193 Cal.App.4th 1376, 1388-1391.) --------
"I had been smoking crack cocaine all evening. I was out of money. I made the decision to steal a computer from work. I went and took the computer and sold it, exchanging it for crack. I went back to my workplace to smoke the cocaine with my friend and his female friend. It was around 1:00 or 2:00 a.m. We all smoked it. I became angry at myself for stealing Timothy's computer. I knew it was wrong. When I smoked the cocaine it really hit me that I stooped so low as to steal a computer to satisfy my needs for drugs. All the years of using drugs hit me. I was so angry at myself because of the person I had become. I felt worthless. I was so ashamed. I didn't know what I would tell Timothy. I didn't want to be exposed as a thief and a drug addict. I made a decision that I would take his life when he came in to work. He came in and I lured him to the back of the building and I murdered him by hitting him with a wrench that I took from the work area. I hit him on the head and body until he fell down and stopped moving. I dropped the wrench and ran out. I realized when I was outside that I had no money. I went back and I bagged the wrench. I took Timothy's wallet out of his back pocket. I left Timothy lying there. I didn't know what I was going to do. I walked to my auntie's house. I tossed the wrench in a garbage can. I changed my clothes. I went back to the workplace. I decided to put on an act. A coworker was already there. I acted as if I had nothing to do with the murder. The police questioned me and I lied. I went to my mother's house. On the next day I didn't go to work. I was distraught. On Friday morning the police took me in for questioning and several hours later I confessed. I was thinking of myself. I didn't want Timothy to find out that I was a thief and a drug addict. I felt so ashamed that I would steal from someone who was good to me. Timothy was good to me. It was unbearable to think that he would know the truth about me. Now I realize that if I had told him the truth he would have helped me. I felt worthless at that time and I was angry at myself. I was unable to turn my life around. The murder was devastating to Timothy's wife and children. She was pregnant at the time. She was open and very kind. It changed her life forever."
Dr. Hayward noted that Reynolds "acknowledged full responsibility for murdering Fitting" and his expressions of remorse were genuine and deeply felt. Dr. Hayward also attributed significance to Reynolds's statements "that he had been smoking cocaine for many hours" at the time he murdered Fitting and he was "unable to think clearly due to his intoxication." Dr. Hayward felt it was not clear Reynolds was aware of the scientific fact, but "extreme dysphoria is a common sign of withdrawal from crack cocaine smokers when their supply of drugs is depleted, and extreme dysphoria may contribute to markedly irrational decisions and behavior."
Dr. Hayward also addressed Reynolds's understanding of the "underlying triggers" for some incidents of his drug use and his violence that Dr. Venard found missing three years earlier. As he explained, "Reynolds has developed understanding of his lifestyle factors that contributed to the commitment offense." To take just several examples, Reynolds recalled that as a youth he had a severe stuttering problem that "always impaired his ability to communicate with people and engage in relationships" or seek help with his addiction, which in turn contributed to his feelings of shame and worthlessness. "He recalled that drugs provided no more than temporary relief from his emotional pain and he had recurrent problems with feeling worthless, ashamed, and depressed" and his "failure to develop sufficient empathy for others as a young adult" facilitated expressions of anger that were violent. Reynolds stated that his consciousness of these issues and extensive and intense participation in self-help programs designed to address them significantly improved his communication skills which enabled him to "identify and resolve his painful emotional reactions by expressing them to his friends . . . and to ask for help when he needs it." His increasing ability to communicate also helped him develop vocational skills, self-confidence, and "empathy and compassion" for others.
Reynolds also began to see that his anger and violence occurred on occasions in which he ran out of the money necessary to support his daily drug habit, which reinforced his resolve to ensure he would not resume his drug dependency. One of the ways in which he could accomplish this was to become a counselor himself, which placed him in an environment in which there is a keen awareness of the signs and danger of relapse and the resources to deal with it effectively.
Reynolds's explanation of the factors that led to his decision to kill Fitting is certainly not an adequate excuse for his criminal act and the egregious violence thereof, because there is no excuse for the murder of a human being, but it does show a high degree of insight indicative that Reynolds is no longer dangerous. No evidence in the record suggests Reynolds's explanation was inauthentic in any respect or that he could have been more forthcoming than he was. The Governor's reliance on Dr. Venard's concern that Reynolds had not in 2011 fully developed an understanding of the triggers associated with some incidents of his drug use, and the Governor's conclusion that Reynolds has therefore "not sufficiently explored the connection between his drug use and his violence" and must "better explain his decision to murder Fitting" are simply unsupported by the record.
The paramount inquiry is whether the inmate remains a threat to public safety. There is in this case no evidence of such a threat, and it cannot be established solely on the basis of the egregiousness of the life crime. As has been authoritatively stated, "the statutory and regulatory mandate to normally grant parole to life prisoners who have committed murder means that, particularly after these prisoners have served their suggested base terms [which is the case here], the underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when [as is also the case here] there is strong evidence of rehabilitation and no other evidence of current dangerousness." (Lawrence, supra, 44 Cal.4th at p. 1211.)
As we have said, the Board found Reynolds's record exhibited all of the applicable factors listed in Board regulations as indicative an inmate is suitable for release on parole. During a quarter of a century of incarceration Reynolds has never received a single rule violation report or a single counselling chrono, which is highly unusual. Reynolds has denied any use of alcohol or drugs while in prison and there is no indication of any such use. Reynolds's involvement in self-help programming, which has always been extremely high, became even more intense after he was last denied a release date. Dr. Hayward observed that Reynolds accepts that he is an addict and will always need the support of 12-step meetings and therefore practices the 12 steps rigorously, so that "every day he takes a personal inventory of his speech and behavior and apologizes when he is wrong." Reynolds represented to the psychologists who have evaluated him "that he has learned to effectively listen to others without criticizing and also to identify and process his feelings and talk about them. He observed that he is able to resolve nearly all problem situations with verbal communication," and "remains calm with meditation and deep breathing in addition to practicing his Muslim faith including his five daily prayers." The multitude of laudatory chronos and other letters to the Board from prison and programming staff, prison officials, correctional counselors, chaplains, and many others who have known and worked with Reynolds for years strongly support Reynolds's self-assessment.
The views expressed by the Board panel at the parole hearing are also instructive. It is difficult to imagine many panels have granted a parole release date more enthusiastically than this one, which is a measure of the strength of Reynolds's application.
As we have said, the only regulatory factor indicative Reynolds is unsuitable for release on parole for which there is evidence in the record, is the gravity of his commitment offense, which the Governor rightly described as "heinous." However, as we pointed out, the circumstances of the commitment offense, which are immutable, rarely provide a valid basis for denying parole (Lawrence, supra, 44 Cal.4th at p. 1211) particularly where, as in this case, all of the other factors indicative of suitability for release apply, and none of the applicable factors indicative an inmate is unsuitable for release are present. In light of Reynolds's extraordinarily high participation in programming and other rehabilitative efforts, most of which focused on his past drug abuse and the prevention of relapse, his exemplary institutional history, the depth of his self-examination and insight into the causes of his criminal act, his expressions of remorse, his realistic parole plans, the positive nature of his planned employment as a drug counselor, the unprecedented number of favorable institutional reports justifying parole, Reynolds's advanced age, the fact that he has served more time in prison than his adjusted base term, his positive clinical assessments, his scores on the PCL-R and HCR-20, which place him in the low risk category for violent recidivism, as well as the favorable discretionary decision of the Board, we believe the gravity of Reynolds's commitment offense has no predictive value as to his current threat to public safety, and thus provides no support for the Governor's conclusion that Reynolds is unsuitable for parole at the present time.
DISPOSITION
The petition for writ of habeas corpus is granted. The Governor is hereby ordered to vacate his decision of October 31, 2014, which reversed the Board's June 12, 2014 grant of parole. The Board's June 2014 grant of parole is reinstated, the denial of parole on November 6, 2016 is vacated (In re Copley, supra, 196 Cal.App.4th at p. 437), and the Board is directed to conduct its usual proceedings for a release on parole. (See In re Lira (2014) 58 Cal.4th 573, 582.) In the interests of justice, this opinion is made final as to this court seven days from the date of filing. (Cal. Rules of Court, rule 8.387(b)(3)(A).)
/s/_________
Kline, P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.