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In re Willard

California Court of Appeals, Second District, First Division
Jul 3, 2008
No. B202516 (Cal. Ct. App. Jul. 3, 2008)

Opinion


In re EDWARD JAMES WILLARD, on Habeas Corpus. B202516 California Court of Appeal, Second District, First Division July 3, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PETITION for a writ of habeas corpus following order of the Superior Court of Los Angeles County, Steven R. Van Sicklen, Judge. Los Angeles County Super. Ct. No. A080194

Edward James Willard, in pro. per., and Melanie K. Dorian, under appointment by the Court of Appeal, for Petitioner.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Heather Bushman and Amanda Lloyd, Deputy Attorneys General, for Respondent.

VOGEL, J.

Edward James Willard pled guilty in 1981 to one count each of robbery and second degree murder with a knife and was sentenced to state prison for an indeterminate term of 21 years to life with a minimum parole eligibility date of September 7, 1995. (Pen. Code, §§ 211, 187, subd. (a), 12022, subd. (b).) In 2006, the Board of Parole Hearings found for the eighth time that Willard is unsuitable for parole, and the matter is before us on his petition for a writ of habeas corpus. We agree with Willard that the Board’s decision is not supported by “some evidence” and, for this reason, grant the petition.

[1] We recognize that, indirectly, this issue is pending before the Supreme Court in In re Rozzo (2008) 159 Cal.App.4th 1089, review granted May 14, 2008, S161469, In re Montgomery (2007) 156 Cal.App.4th 930, review granted February 20, 2008, S159141, In re Dannenberg (2007) 156 Cal.App.4th 1387, review granted February 13, 2008, S158880, In re Jacobson (2007) 154 Cal.App.4th 849, review granted December 12, 2007, S156416, In re Shaputis (Aug. 21, 2007, D049895) [nonpub. opn.], review granted October 24, 2007, S155872, In re Cooper (2007) 153 Cal.App.4th 1043, review granted October 24, 2007, S155130, and In re Lawrence (2007) 150 Cal.App.4th 1511, review granted September 19, 2007, S154018, all cases in which the Board has granted parole and the Governor has vacated the Board’s decision.

FACTS

A. The Commitment Offense

Willard (a Canadian citizen) met the victim, Johns de Koninagans (a Dutch citizen), on a 1979 bus trip from Niagara Falls to California. In California, the men went drinking in a bar in Venice. When the victim attempted to “‘rip off Willard,’” Willard responded by stabbing the victim several times and cutting his throat, then robbed him. The victim’s body was found under a pier in Venice, and Willard was arrested after an informant (to whom Willard had already confessed) obtained a taped confession from Willard.

During a 2006 psychological examination, Willard explained his actions this way: “It was a point in my life [when] I had just separated from my wife. I was feeling bad. I was doing a lot of drinking at the time. At the time of this crime I was really drunk. I remember I was in a bar drinking with the victim. An argument broke out and we started fighting. I ended up killing him. We left the bar. The fight continued in the parking lot. I remember very little. I know I had a knife and I ended up stabbing him. If I hadn’t been drinking this would not have happened. I remember feeling better when I drank. The separation with my wife caused me to feel really bad. I always thought there was something missing in my life. Low self-esteem, low ego and drinking seemed to take that all away. I thought of drinking as a way of life . . . . I certainly had made a bad choice when I drank. This is a very bad decision. We were married approximately six years. I was drinking throughout the marriage. I tried to stop drinking a couple of times but couldn’t stop. I was definitely an alcoholic at that time. I didn’t put my priorities in order.”

B. The Evidence Before the Board

1.

Willard has no juvenile record but did suffer some misdemeanor convictions in Canada (where he lived until he came to California in 1979), all of which resulted in grants of probation -- a commercial breaking and entering conviction in 1973, a theft conviction in 1975, marijuana possession and drunk driving in 1976, and two arrests for failing to appear under the terms of his probation.

2.

A psychiatric evaluation prepared by Bob Ohrling, Ph.D., in 2006 reports that Willard, then 53 years old, has two adult children with whom he has maintained a close relationship, and that he also has a close relationship with his sister. According to Dr. Ohrling, Willard has maintained a long term presence in Alcoholics Anonymous, and his overall “adaptation to prison life has been positive and constructive after 1989.” Willard acknowledged that he committed the offense, and “fully acknowledged the wrongfulness of his actions.” He “appears to take full responsibility for the offense and does not appear to rationalize or minimize his role.” He expresses remorse and “appears to feel guilty for his actions and can empathize at an emotional level with the harm done to the victim and the victim’s family.”

Willard “demonstrated a good awareness of the circumstances that resulted in his committing a serious offense [and] appears highly motivated to undertake constructive changes in his life.” Dr. Ohrling explained that Willard’s problems with alcohol continued for a few years after his incarceration: “Even after the crime and several years in CDC he still was not facing reality and the consequences of his actions. In 1989[,] life changed for this inmate when he finally began to realize if he was ever to have a life outside of prison, things would have to be different. . . . [A]lcohol was a large contributor in his dysfunctional life style, even in CDC. [¶] Mr. Willard was of the belief throughout much of the 1980’s that once an individual served his time in a non-violent manner, he would be released. When he saw himself and other inmates and other lifers continue to remain in custody, he began to realize many other factors were also contingent upon suitability. Mr. Willard commented that he needed to acquire additional skills to function in society as well as insight into his violent crime and methods that would lead to this improvement.

“During the last nine years [Willard] has changed directions and [began] to take responsibility in acquiring the tools necessary to gain knowledge from new vocations and taking self help courses to understand healthy choices for dealing with anger, hurt and frustration which can occur on a daily basis. . . . [¶] [During] Mr. Willard’s last eleven years in CDC there [have] been no disciplinary infractions for substance abuse. (The last 115 was . . . 5/14/89 and he has had no write-ups for new disciplinary behavior since 9/1/95.)”

Dr. Ohrling concluded thus: “Mr. Willard has been able to understand the causes and contributory behaviors that lead up to the crime, as well as take responsibility for those behaviors that culminated in the tragic death of an individual. He has appeared to be a slow learner, in spite of his recent accomplishments. Taking into consideration his maturity, the absence of psychopathology, his constant positive attitude in programming while in CDC, insight into past actions and behaviors and remorse for those actions all point to a low risk of violence when released to society.”

3.

In prison, Willard was an active member of Alcoholics Anonymous until July 2005 when he was placed on a waiting list “due to lack of available classroom space.” He completed an Anger Management Class, an Alternative to Violence Project, and a “Breaking Barriers” workshop. At the time of his 2006 parole hearing, he was enrolled in a life skills extension course (“Way to Happiness”) and had completed 17 lessons out of 20.

He completed programs in Vocational Data Processing, Welding, Graphic Arts, and nine out of twelve units in computer refurbishing (the program was shut down before he could complete it). He regularly received praise for his work at various jobs (food handling, computer programming, inventory control, welding) within the prison system (through “dedication and hard work Inmate Willard was promoted to the highest paid position possible” within the Prison Industry Authority, and he was described by one supervisor as “by far the best worker I have ever had,” and thus deemed a “Critical Worker” to be retained at the facility for “institutional convenience”).

With one minor exception, Willard has been discipline-free since 1989 (the exception occurred in 1995 for getting a drink of water during a lockdown, which he thought was over when he got up). Before 1989, Willard received fifteen 115’s and six 128’s.

A CDC 115 documents misconduct believed to be a violation of law that is not minor; a CDC 128a documents incidents of minor misconduct. (Cal. Code Regs., tit. 15, § 3312, suds. (a)(2), (a)(3); In re Gray (2007) 151 Cal.App.4th 379, 389; In re Encouragement (2007) 156 Cal.App.4th 780, 789, fn. 3.)

4.

Because Willard is subject to an INS hold to be deported to Canada when he is released, he has two parole plans, one for Canada and one for California if he is required to remain here as a condition of his parole.

If he is able to return to Canada, he will live with his sister, Beverly Willard (a nurse), in Ontario. This is his preferred plan because he would be close to his sister and his adult children. The John Howard Society in Canada will provide employment assistance, and Willard has received assurances from the Canadian Consulate that “[t]he social services of Canada will help you with a roof over your head until you can afford your own. Canada provides a lot of assistance to ex-prisoners. You are not on your own. The parole board should be aware of this.” In Canada, Willard has job prospects as a welder with the International Ironworkers Local 433, and he has a list of AA groups that will provide support when he has a firm parole date.

If he has to remain in California, Friends Outside and the Union Rescue Mission have both agreed to help him, and the Union Rescue Mission has confirmed that he can live at its facility while he looks for work or, alternatively, works in one of their programs. He has job offers from computer programmers.

C. The Board’s Decision

The Board denied parole for the following reasons:

“The Panel has reviewed all information received from the public and relied on the following circumstances in concluding that the prisoner is not suitable for parole and would pose an unreasonable risk of danger to public safety if released from prison. We’ve come to this conclusion first by the commitment offense itself. The offense was carried out in an especially callous manner. The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering and the motive for the crime was inexplicable in relation to the offense. These conclusions are drawn from the Statement of Facts, wherein the prisoner, for reasons still best known to himself, killed the victim in a most brutal manner. There is no indication that the victim was armed or presented any threat to Mr. Willard. Mr. Willard’s actions go well beyond those necessary for the second degree conviction. Now this Panel has not held Mr. Willard’s decision not to speak against him in making this decision.

“With regard to the previous record, we find that there is a prior criminal record consisting primarily of property and alcohol related crimes and probation violations. There is a failure of a previous grant of probation and a failure to profit from society’s previous attempts to correct criminality. Specifically, adult probation and county jail. In regard to his institutional behavior, we do find that there are five 128(a) counseling chronos. The last of which was in 12 of 1989 and 16 serious 115 disciplinary reports. The last of which was in 9 of 1995. The one prior to that being in 12 of 1989. The psychological report of October 2006 by Dr. Ohrling is supportive, but leveraged heavily on the complete abstinence from alcohol. With regard to parole plans, we do find that the parole plans are adequate.”

The Board commended Willard for his accomplishments in prison but found that his “gains are recent and he must demonstrate an ability to maintain these gains for an extended period of time. And these positive aspects of his behavior do not outweigh the factors for unsuitability.”

D. The Habeas Corpus Proceedings

In February 2007, Willard filed a habeas corpus petition challenging the Board’s decision. The trial court denied the petition, finding that “some evidence” (the commitment offense, Willard’s misdemeanor record, and his disciplinary record in prison) supported the Board’s conclusion that Willard presents an unreasonable risk of danger to society. Willard then filed a pro se habeas petition in our court, and we issued an order to show cause, appointed counsel to represent Willard, and set the matter for hearing.

DISCUSSION

Willard contends there is no evidence that he poses a risk to society and that the Board’s decision cannot stand. We agree.

A.

Although a prisoner has no constitutional or inherent right to be released on parole before the end of his sentence (Greenholtz v. Nebraska Penal Inmates (1979) 442 U.S. 1, 7), Penal Code section 3041 creates in every inmate a cognizable liberty interest in parole, and that interest is protected by the procedural safeguards of the due process clause. (In re Rosenkrantz (2002) 29 Cal.4th 616, 655; Irons v. Carey (9th Cir. 2007) 479 F.3d 658, 662; Sass v. California Bd. of Prison Terms (9th Cir. 2006) 461 F.3d 1123, 1128; Biggs v. Terhune (9th Cir. 2003) 334 F.3d 910, 914-915; McQuillion v. Duncan (9th Cir. 2002) 306 F.3d 895, 903.) Due process is satisfied if the Board’s assessment of the prisoner’s current risk of danger to the public if released on parole is supported by “some evidence” in the record (In re Dannenberg (2005) 34 Cal.4th 1061, 1095), and that evidence must be both reliable and of solid value (In re Rosenkrantz, supra, 29 Cal.4th at p. 655; In re Scott (2005) 133 Cal.App.4th 573, 591). The standard is “not whether some evidence supports the reasons [the Board] cites for denying parole, but whether some evidence indicates a parolee’s release unreasonably endangers public safety. [Citations.] Some evidence of the existence of a particular factor does not necessarily equate to some evidence that the parolee’s release unreasonably endangers public safety.” (In re Lee (2006) 143 Cal.App.4th 1400, 1408-1409; In re Singler (2008) 161 Cal.App.4th 281, 299-300.)

Subdivision (b) of Penal Code section 3041 establishes a presumption that parole is the rule, not the exception, providing that the Board “shall set a release date unless it determines that the gravity of the [commitment offense] is such that consideration of the public safety requires a more lengthy period of incarceration for this individual. . . .” (See Board of Pardons v. Allen (1987) 482 U.S. 369, 377-378; and see Cal. Code Regs., tit. 15, § 2402, subd. (a) [“Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the [Board] the prisoner will pose an unreasonable risk of danger to society if released from prison”].) All references to section 2402 are to that section of title 15 of the California Code of Regulations.

To assess whether a life prisoner will pose an unreasonable risk of danger to society if released from prison, the Board considers suitability and unsuitability factors. Suitability factors include the absence of a juvenile record, a stable social history, signs of remorse, the motivation for the crime was significant life stress, battered woman syndrome, no history of violent crime, age, realistic plans for the future, and institutional behavior. (§ 2402, subd. (d).) Unsuitability factors include whether the commitment offense was committed “in an especially heinous, atrocious or cruel manner,” a previous record of violence, an unstable social history, sadistic sexual offenses, psychological factors, and serious misconduct while incarcerated. (§ 2402, subd. (c).)

The circumstances of the commitment offense may alone constitute a sufficient basis for denying parole only when those circumstances reasonably suggest “the prisoner who committed it is presently too dangerous” to be released on parole. (In re Dannenberg, supra, 34 Cal.4th at p. 1080.) Put another way, some evidence must create a nexus between the circumstances of the commitment offense and the Board’s finding that the prisoner currently would pose a risk of danger to society if released on parole (In re DeLuna (2005) 126 Cal.App.4th 585), and a 30-year-old commitment offense may not be a reliable predictor of current dangerousness where, as here, the prisoner has been violence-free for almost 20 years (Biggs v. Terhune, supra, 334 F.3d at pp. 916-917; Irons v. Carey, supra, 479 F.3d at p. 665; Rosenkrantz v. Marshall (C.D. Cal. 2006) 444 F.Supp.2d 1063, 1084-1085; In re Lee, supra, 143 Cal.App.4th at p. 1412; In re Elkins (2006) 144 Cal.App.4th 475, 496).

B.

The Board’s decision in this case is not supported by any evidence that, if released on parole, Willard would pose a danger to the public.

Contrary to the Board’s finding, there is no evidence that this murder was “carried out in an especially callous manner” demonstrating “an exceptionally callous disregard for human suffering.” This was a drunken fight that ended in a death by stabbing. Although any murder by definition involves some callousness, including indifference to the victim’s suffering, parole is the rule, not the exception, and “a conviction for second degree murder does not automatically render one unsuitable.” (In re Smith (2003) 114 Cal.App.4th 343, 366.) In short, there is no evidence that this crime was more aggravated or violent than the minimum necessary to sustain a second degree murder conviction. (In re Rosenkrantz, supra, 29 Cal.4th at p. 683; In re Dannenberg, supra, 34 Cal.4th at p. 1098; In re Scott (2005) 133 Cal.App.4th 573, 598; In re Elkins (2006) 144 Cal.App.4th 475, 496-497 [striking the victim several times to ensure his death does not go beyond what is necessary to commit murder]; In re Viray (2008) 161 Cal.App.4th 1405, 1418 [stabbing the victim multiple times during a fight did not show exceptionally callous disregard for human suffering].)

More to the point, there is no nexus between Willard’s crime of 30 years ago and the Board’s finding that he poses a current danger to society. Other than the commitment offense, Willard has no record of violence (his misdemeanor record is comprised of property offenses and drug and alcohol abuse charges). His misconduct during the early years of his incarceration had to do with his possession of “homebrew” and disobeying orders, not violence, and (with the one minor exception noted above) he has been discipline-free for almost 20 years. Dr. Orhling found that Willard presents “a low risk of violence” to society, and there is nothing in the record to support the Board’s rejection of that finding -- indeed, the record is filled with reports dating back to 1995 in which Willard has been consistently assessed as low risk.

The record supports Dr. Ohrling’s findings, not the Board’s. The commitment offense, Willard’s prior property offenses, and the failure of his marriage were the product of Willard’s alcoholism. While incarcerated, Willard has since 1994 been fully involved in AA, acquired several trades, earned accolades from his work supervisors, and conducted himself as a model prisoner. He has not been involved with any inmate-manufactured alcohol or drugs since 1989. As Willard told the Board, he realized in 1989, when his “daughters had just come of age” and were writing to him, that he “didn’t want to be a loser drunk.” He decided to become someone they could look up to, and he has not deviated from that plan.

Willard has solid parole plans (a fact acknowledged by the Board) and he understands that he must remain involved with AA for the rest of his life. He has done everything prior Boards have recommended (completing anger management and similar programs, and remaining discipline-free). In short, there is no evidence to support the Board’s finding that Willard poses a current threat to society.

DISPOSITION

The petition is granted. The Board is directed to find Willard suitable for parole unless, within 30 days of the finality of this decision, the Board holds a hearing and determines that new evidence of Willard’s conduct in prison subsequent to the 2006 parole hearing supports a determination that he currently poses an unreasonable risk of a danger to society if released on parole. (In re Singler (2008)161 Cal.App.4th 281, as modified April 16, 2008 at 161 Cal.App.4th 988c.)

We concur: MALLANO, P.J., ROTHSCHILD, J.


Summaries of

In re Willard

California Court of Appeals, Second District, First Division
Jul 3, 2008
No. B202516 (Cal. Ct. App. Jul. 3, 2008)
Case details for

In re Willard

Case Details

Full title:In re EDWARD JAMES WILLARD, on Habeas Corpus.

Court:California Court of Appeals, Second District, First Division

Date published: Jul 3, 2008

Citations

No. B202516 (Cal. Ct. App. Jul. 3, 2008)