Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BH005193, Peter Paul Espinoza, Judge. Reversed.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Heather Bushman and Kathleen R. Frey, Deputy Attorneys General, for Appellant.
Melanie K. Dorian, under appointment by the Court of Appeal, for Respondent.
Turner, P. J.
I. INTRODUCTION
Petitioner, Donald R. Washington, is currently serving an indeterminate 17 years to life sentence for second degree murder (Pen. Code, § 187) with firearm use (§ 12022.5). On December 5, 2007, the Board of Parole Hearings (the board) found petitioner unsuitable for parole. On March 20, 2008, petitioner filed a habeas corpus petition in the trial court. An August 19, 2008 order to show cause issued. On January 5, 2009, the trial court granted the habeas corpus petition. The Attorney General filed a petition for writ of supersedeas and a notice of appeal. On March 6, 2009, we granted the supersedeas petition and stayed the trial court’s order granting habeas corpus relief pending issuance of our remittitur after appeal or further order by us. The Attorney General argues the trial court erroneously granted the habeas corpus petition because there is some evidence which supports the board’s decision to deny parole. We agree.
All further statutory references are to the Penal Code unless otherwise noted.
II. FACTS AND PROCEDURAL STATUS
A. The Commitment Offense
The following is a summary of the facts pertinent to the commitment offense. Later in this opinion, we shall discuss additional relevant facts. On March 14, 1979, petitioner, then 28, and a companion, Donald Foster, attempted to contact Kim Hodnett at her residence in Compton but were unsuccessful. Ms. Hodnett was Mr. Foster’s former girlfriend. At approximately 11:30 that night, petitioner and Mr. Foster returned to Ms. Hodnett’s residence, where they encountered the victim, 22-year-old James Warren. Mr. Warren was visiting Ms. Hodnett. Petitioner and Mr. Foster began to fight with Mr. Warren. In the course of the fight, Mr. Warren was fatally injured—he received seven gunshot wounds from a revolver. Witnesses reported seeing Mr. Foster fire the weapon. However, witnesses later indicated that petitioner also had possession of the weapon at one time or another during the fight. Petitioner had been drinking alcohol in the hours prior to the altercation. There was evidence petitioner and Mr. Foster had recently sold drugs to Mr. Warren. There was also some evidence that while in the county jail, petitioner was charged with threatening Ms. Hodnett.
Prior to being sentenced, petitioner denied he played any part in the shooting. He said that during the fight his hand was somehow cut and he retreated to the driveway. White waiting in the driveway, he heard shots fired. According to petitioner, Mr. Foster ran out of the residence saying, “I think I killed him.” The probation officer’s report states, “[Petitioner] said he persuaded Foster to go with him to see a lawyer....” Subsequently, petitioner and Mr. Foster surrendered to authorities. In 1992, petitioner admitted to several staff psychiatrists and psychologists that he knew Mr. Foster sometimes carried a gun. Petitioner denied knowing Mr. Foster was armed when they went to visit Ms. Hodnett on the night Mr. Warren was killed. While released on bail pending the trial for Mr. Warren’s murder, petitioner committed an assault with a deadly weapon.
Petitioner was convicted on December 14, 1979 following a jury trial. He was sentenced on January 8, 1980, to 17 years to life in prison. The judgment was affirmed on appeal.
B. The Board Hearing and Decision
Petitioner appeared before the board for the eighth time on December 5, 2007. In denying petitioner a parole date for one year, the panel concluded he was not yet suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released. The board cited petitioner’s psychological evaluations which indicated he was a moderate risk for violence if released and he lacked insight as to his responsibility for the commitment offense. Additionally, the board relied on petitioner’s prison disciplinary record.
III. DISCUSSION
A. Standard of Review
The board is granted broad discretion in rendering parole decisions. (In re Lawrence (2008) 44 Cal.4th 1181, 1204; In re Rosenkrantz (2002) 29 Cal.4th 616, 655.) Judicial review is available to ensure that the board’s decision reflects consideration of the specified criteria and is not arbitrary or capricious. (In re Lawrence, supra, 44 Cal.4th at p. 1205; In re Rosenkrantz, supra, 29 Cal.4th at p. 677.) The Supreme Court set forth the standard of review for courts to apply when determining whether the board acted outside its authority in refusing to grant parole to an inmate in In re Lawrence, supra, 44 Cal.4th at page 1191: “[B]ecause the core statutory determination entrusted to the Board... is whether the inmate poses a current threat to public safety, the standard of review properly is characterized as whether ‘some evidence’ supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous.” (Italics added.) When, as here, the trial court’s findings are based solely on documentary evidence, our review is de novo. (In re Rosenkrantz, supra, 29 Cal.4th at p. 677, citing In re Serrano (1995) 10 Cal.4th 447, 457; In re Lazor (2009) 172 Cal.App.4th 1185, 1192; In re DeLuna (2005) 126 Cal.App.4th 585, 591; In re Smith (2003) 114 Cal.App.4th 343, 360-361.) However, as the Supreme Court has held, “Resolution of any conflicts in the evidence and the weight to be given the evidence are within the authority of the Board. ([In re Powell (1988) 45 Cal.3d 894,] 906.)” (In re Rosenkrantz, supra, 29 Cal.4th at p. 656; accord, In re Lawrence, supra, 44 Cal.4th at p. 1204.)
B. Factors To Be Considered
California Code of Regulations title 15, section 2281 sets forth the information the board is to consider in determining whether an inmate is suitable for release on parole, “Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.” (Cal. Code Regs., tit. 15, § 2281, subd. (a).) The board is required to consider “[a]ll relevant, reliable information available” including: the inmate’s social history; past criminal history; the commitment offense; and the inmate’s present attitude toward the commitment offense. (Cal. Code Regs., tit. 15, § 2281, subd. (b).) Circumstances tending to show unsuitability for parole include whether: the commitment offense was committed “in an especially heinous, atrocious or cruel manner”; “[t]he motive for the crime is inexplicable or very trivial in relation to the offense”; the inmate has a previous record of violence or an unstable social history; and “[t]he prisoner has engaged in serious misconduct in prison or jail.” (Cal. Code Regs., tit. 15, § 2281, subd. (c).) Circumstances tending to show a prisoner is suitable for parole include: signs of remorse; “[t]he prisoner’s present age reduces the probability of recidivism”; “[t]he prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release”; and “[i]nstitutional activities indicate an enhanced ability to function within the law upon release.” (Cal. Code Regs., tit. 15, § 2281, subd. (d).)
C. Application to the Present Case
We find some evidence supported the board’s conclusion petitioner was not suitable for parole. First, the board could conclude no apparent reason was advanced for shooting Mr. Warren. Mr. Foster and petitioner went to Ms. Hodnett’s residence. Mr. Foster had previously been Ms. Hodnett’s boyfriend. For no discernable reason, a fight broke out and, as a result, the jury found defendant used the firearm in the commission of Mr. Warren’s murder. Thus, the board could reasonably conclude the motive was very trivial in relation to the offense.
Second, petitioner had a previous record of violent and assaultive crimes. While a ward of the juvenile court and placed in camp at age 14 or 15, petitioner assaulted another boy with a pool cue. Petitioner was sent to the California Youth Authority and subsequently paroled. But he twice violated the conditions of his parole and was returned to the Youth Authority. In June 1970, petitioner was convicted of assault with a deadly weapon and sentenced to prison. He stabbed a man with a knife. The board could reasonably find the commitment offense involved: a physical assault; petitioner’s personal use of a firearm; and Mr. Warren’s death from gunshot wounds. In 1980, while released on bail and awaiting trial for killing Mr. Warren, petitioner committed an assault with a deadly weapon. He was subsequently convicted of assault with a firearm and sentenced to five years in state prison. That sentence ran concurrently to the commitment offense.
Third, there is evidence petitioner had an unstable social history. He was born on January 14, 1951, in Mississippi, but grew up in California. Petitioner’s mother died of cancer in 1972. His father was shot by a robber and killed in 1984. Of nine siblings, including petitioner, three had served time in prison. Petitioner’s son was serving a life sentence for a gang-related murder. Petitioner’s son committed the murder at the age of 15. Petitioner had impregnated a girl when he was 14 or 15. Petitioner had been married, but his wife was not the mother of his son. Petitioner began abusing drugs and alcohol when he was 13. His drug use included the ingestion of marijuana, cocaine, heroin, phencyclidine, and lysergic acid diethylamide. By 1974 or 1975, when he was in his 20s, he used heroin on a daily basis. Petitioner was interviewed by a psychologist in 2001. Petitioner admitted he had been engaged in various criminal activities as a young man including selling and manufacturing drugs, burglaries, and robberies. In prison, he was diagnosed with antisocial personality disorder.
Fourth, petitioner’s prison record included eight 115s (non-minor disciplinary violations, Cal. Code Regs., tit.15, § 3312, subd. (a)(3); see In re Gray (2007) 151 Cal.App.4th 379, 389), the most recent in 1987, and three 128s (misconduct incidents (Cal. Code Regs., tit. 15, § 3312, subd. (a)(2); see In re Gray, supra, 151 Cal.App.4th at p. 389). Petitioner’s most recent misconduct occurred in June 2006. As a result, petitioner was placed in administrative segregation. The 2006 discipline arose from petitioner’s refusal to accept a new cellmate.
Fifth, the board could reasonably conclude petitioner: had not taken responsibility for his participation in the commitment offense; failed to appreciate the circumstances, including alcohol use, and the purchase and sale of drugs, which contributed to the murder; and continued, without justification, to deny his personal use of a firearm in the killing. Dr. Erich Rueschenberg, a clinical psychologist, performed a psychosocial assessment of petitioner in 2001. Dr. Rueschenberg observed in part: “[Petitioner] continued to contend that he was not responsible for the victim’s death. ..... [¶] [Petitioner] informed the examiner that, prior to the offense, both he and Mr. Foster had recently sold drugs to Mr. Warren. He reported that when [Ms. Hodnett] called Mr. Foster telling him to ‘come and pick up his things,’ he asked [petitioner] to go with him to her residence. He stated when they arrived at the residence they did not know Mr. Warren would be present and when he observed Mr. Foster, he ‘started charging at him.’ [Petitioner] stated that he placed himself between Mr. Foster and Mr. Warren ‘trying to break it up.’ He reported that he was stabbed in the hand by [Ms. Hodnett], and he responded by stating, ‘I’m out of here.’ [Petitioner] contended that he walked away from the scene of the offense and then heard a number of gunshots. He reported that Mr. Foster then approached him and stated, ‘I think I shot and killed him (Mr. Warren).’ [¶] In discussing the circumstances that led to his conviction for the above offense, [petitioner] admitted that he did not give much information to the investigating officers, and ‘I messed up on the stand.’ He then stated, ‘The [district attorney] gave me the seventh shot, but the autopsy results showed that it was actually a re-entry wound.’” In a 2004 psychological evaluation of petitioner, Dr. Joe D. Livingston reported: “[Petitioner] acknowledges that at the time he was ‘trying to get things the quick way.’ He also acknowledges running with the ‘wrong people in the wrong crowd.’ However, he also continues to maintain that he was not personally involved in the death of Mr. Warren. He also cites supportive testimony and factors regarding his position on the crime.”
In 2007, petitioner discussed the commitment offense with Dr. Bradley D. Hartung, a forensic psychologist. In that interview, petitioner admitted being in the driveway when Mr. Warren was shot. Petitioner had written to the victim’s family to apologize for not remaining at the murder scene until the authorities arrived. Petitioner did not believe his life sentence was fair. Petitioner knew of several inmates who had been paroled without doing as much time as he had done. Petitioner claimed the two main reasons for the injustice inflicted on him were his race and his lack of money. As noted, petitioner minimizes his role in the fight and his personal firearm use, which culminated in the fatal shooting.
Sixth, pursuant to a 2001 psychological evaluation, petitioner was found to pose a moderate risk for future violence if released from prison custody. But the same 2001 evaluation indicated petitioner posed “an indeterminate risk for further violence” if paroled. Dr. Rueschenberg, a clinical psychologist, observed: “Overall, the available information reflects that [petitioner] has an indeterminate risk for further violence in the community. Although his role in the [commitment] offense is an issue of contention, he had other convictions involving the use of force or violence, both preceding and after the [commitment] offense. As illustrated above, [petitioner’s] adolescence and early adulthood were characterized by a criminal orientation and a self-centered lifestyle. He manifested numerous adjustment problems and his life lacked direction or purpose. During his term in prison, he has managed to avoid major adjustment difficulties, and he has demonstrated a level of increasing maturity. His behavioral control is exemplified by the fact that he has not received any CDC-115s during the last 14 years. He has also taken advantage of opportunities for both educational and vocational upgrading, and he continues to receive very favorable work supervisor reports. However, given the level of severity of his substance abuse problems, and the fact that his association with both the victim and his crime partner in the [commitment] offense were connected with the drug culture, his decision to curtail his participation in substance abuse programs is questionable.”
Pursuant to psychological evaluations performed in 2004 and 2007, petitioner was found to pose a moderate risk for future violence if released. Dr. Hartung reported in part: “[T]he inmate presented as glib and superficial, and offered other excuses or blame for his behaviors rather than his own choices in life (including to use substances), and as related to the offense. He continues to deny any responsibility in his life crime and this has been documented throughout his incarceration. He continues to display poor insight into the life crime and since he views himself as not responsible, he has no remorse or sense of guilt over his victim’s murder. He continues to view his life term as a miscarriage of justice and spends most of his time working on his appeal as he has done throughout his incarceration. Previous reports indicated that his attitude toward previous commitments to [the California Department of Corrections] and [the California Youth Authority] was much the same in that he did not take responsibility in those crimes either and blamed others for his life circumstance.” As noted, petitioner was found to have personally used a firearm in the commission of the murder. A firearm was used to murder Mr. Warren. Yet, petitioner continued to deny use of the firearm that killed Mr. Warren. Such minimization of responsibility for the murder, even while accepting moral blame for the killing, is evidence of a lack of insight which bears on the issue of petitioner’s threat to public safety. (In re Shaputis (2008)44 Cal.4th 1241, 1260-1262; In re Lazor, supra, 172 Cal.App.4th at p. 1202; In re Smith (2009) 171 Cal.App.4th 1631, 1638.)
The foregoing was some evidence petitioner posed a current risk of danger to the public. Therefore, the board’s unsuitability determination must be upheld. The habeas corpus petition should have been denied.
IV. DISPOSITION
The January 5, 2009 order granting the habeas corpus petition of petitioner, Donald R. Washington, is reversed.
We concur: Armstrong, J., Kriegler, J.