Opinion
NOT TO BE PUBLISHED
APPEAL from an order granting petition for writ of habeas corpus, Steven R. Van Sicklen, Judge. Los Angeles County Super. Ct. No. BH004414
Roger S. Hanson for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Heather Bushman and Gregory J. Marcot, Deputy Attorneys General, for Respondent-Appellant.
MOSK, J.
INTRODUCTION
Petitioner-appellee David Duvall (Duvall) is serving a California prison sentence of seven years to life, after a conviction in 1962 for one count of first-degree murder, two counts of kidnapping for robbery, and 13 counts of first degree robbery. Appellant-respondent A. Hedgpeth (appellant), acting Warden of Kern Valley State Prison, where Duvall is currently incarcerated, appeals from an order issued by the Los Angeles County Superior Court on June 18, 2007, granting Duvall’s petition for writ of habeas corpus. The petition challenged the Governor’s reversal of the decision of the Board of Parole Hearings (Board) on May 4, 2006 finding Duvall suitable for release on parole. We affirm the order of the trial court granting Duvall’s petition and ordering his release.
Although not the shooter, the murder took place during a robbery in which he was a participant.
PROCEEDINGS
After being denied parole on at least eight prior occasions, on May 4, 2006, Duvall appeared before the Board at a hearing for parole consideration. At that hearing, the Board considered Duvall’s crime and criminal record; his acceptance of responsibility and expressions of remorse; his low classification score—the lowest possible for a life inmate; his record in prison; his participation in educational and psychological services; the psychological reports concluding that his parole would entail a low risk to public safety; his age and poor health condition; letters written on his behalf; and the willingness of his family to care for him. The Board issued a tentative decision finding Duvall suitable for parole, with various conditions, and calculating his release date. That decision became final. The conditions of parole included abstention from alcoholic beverages, submission to alcohol testing, and attendance at a parole outpatient clinic.
On September 28, 2006, the Governor reversed the Board’s parole grant. The Governor said, “[T]he offense was carried out in a manner demonstrating an exceptionally callous disregard for human suffering and life . . . . The nature and circumstances of the first-degree murder perpetrated by [petitioner] are [sic] alone sufficient for me to conclude presently that his release from prison would pose an unreasonable public safety risk. The fact that Mr. Duvall, according to the Statement by [sic] Judge and District Attorney, proceeded to commit three additional armed robberies with his partner over the next 18 days makes his actions even more atrocious.”
Duvall, who was represented by counsel, filed a petition for writ of habeas corpus, challenging the Governor’s parole decision. Duvall contended that the Governor’s decision violates due process because of the following contentions: 1) the Governor did not personally review the facts of his case or prepare and sign the decision; 2) the Governor’s determination that petitioner’s release would pose an unreasonable risk of danger to society was not supported by the record; 3) the Governor improperly relied on the unchanging factors of the commitment offense to deny parole; 4) the Governor was not personally involved in the decision, is biased against parole, and has a “no-parole” policy; and 5) the Governor considered petitioner’s parole suitability using the determinate sentencing law (DSL) criteria, rather than the indeterminate sentencing law criteria, in violation of Duvall’s due process rights and the Ex Post Facto Clauses of the state and federal constitutions. Duvall also contended that the trial court should not apply the “some evidence” standard of judicial review when reviewing the Governor’s decision, but rather should apply a “substantial evidence” test.
The trial court issued an order to show cause requiring appellant to file a return to respond to the claims in Duvall’s petition. Appellant then filed a return, and Duvall filed a denial and traverse.
Thereafter, the trial court granted the petition for writ of habeas corpus. The trial court concluded that there was “no evidence in the record that [Duvall] was likely to commit another crime or that his release would pose an unreasonable risk to public safety”—which the trial court said was the relevant consideration.
On July 27, 2007, appellant timely filed a notice of appeal of the trial court’s order granting the petition and a petition for writ of supersedeas. Appellant also sought a stay of the enforcement of the trial court’s order in this Court, which was granted on August 1, 2007.
Appellant’s Motion to Augment the record on appeal is granted.
During a two-month period in 1962, Duvall, then 22 years of age, and his crime partner, Raymond Treloar (Treloar), committed robberies of nine bars and the bars’ patrons while armed with loaded handguns. During the first robbery, the crime partners brandished their revolvers, and Treloar fired a shot over a person’s head. During other robberies, they beat and pistol-whipped victims—some severely. In one of the robberies Treloar shot a victim. After the shooting, they proceeded to rob other patrons. Duvall and Treloar kicked and cursed the shooting victim for moaning, and the victim ultimately died from his bullet wounds. Upon leaving the bar on that occasion, Duvall and Treloar kidnapped two female customers, bound and gagged them, drove them approximately four miles away and then abandoned them. The crime partners thereafter committed three additional armed robberies. Duvall voluntarily turned himself into the authorities when he learned that the police had identified, and were seeking, him for the crimes.
Following his capture, Duvall was convicted of one count of first-degree murder (felony murder), two counts of kidnapping for robbery, and 13 counts of first-degree robbery. After two separate juries deadlocked 9-3 in favor of imposing the death penalty, Duvall eventually was sentenced by the trial court to an indeterminate life term for the first-degree murder and two concurrent life terms for the kidnapping for robbery convictions. Duvall also was sentenced to five consecutive and eight concurrent life terms for the 13 separate first-degree robbery convictions. Additionally, because Duvall had committed his offenses while he was on probation for a previous forgery conviction, his probation was revoked, and he was sentenced to a concurrent three-year term in prison. His minimum parole eligibility date was February 7, 1969. He was received in the Department of Correction on November 3, 1962.
He was not convicted of all of the crimes perpetrated during that period. Nevertheless, we refer to all those crimes as the commitment offenses.
The Attorney General explained that at that time that “minimum eligible parole date, [was] because all of the robberies and the kidnap for robberies merged into a single life sentence.”
Duvall’s record of violence prior to the robberies consisted of his role in a gang fight at age 15, for which he was committed to a juvenile camp. He had a number of arrests, and was convicted of forgery and of offenses arising out of a bar fight. He was on probation at the time of the crimes that led to the incarceration that is the subject of this proceeding. He engaged in the crime spree for which he is imprisoned notwithstanding his representations to the court and the Probation Officer’s prediction that he no longer would commit criminal acts. He also was discharged from the United States Marine Corps, after being incarcerated, for drinking and fighting.
In 1973, while Duvall was serving his sentence, he escaped without force from prison. He explained he was on an “outside work detail and . . . just walked away” because of depression over not being paroled at that time. He said “it was a stupid thing . . . to do . . . I was going to be in another two years, max . . . .” Duvall remained a fugitive for 19 years, living in various states—ultimately in the state of Washington. He was finally captured and returned to custody in California. Duvall denied committing any crimes while an escapee, and there is no indication that during this period at large he committed any crimes, other than being a fugitive and using another name. The Presiding Commissioner of the Board stated, “When [Duvall] was picked up again in Washington, the prosecutor declined to prosecute him because he had not committed any crimes in the 19 years he was a fugitive.” He had sustained himself while a fugitive by working. This escape was his only serious prison infraction. As noted, had he not escaped, according to Duvall, there is a likelihood he would have been paroled in two years—that is in 1975.
See In re Wilson (1981)30 Cal.3d 438, 440 (convicted of first degree murder in 1960 and initially paroled in 1975).
Duvall met a woman who turned out to be a law enforcement warrants deputy. She happened to run his name through the computer and discovered he was a fugitive.
Duvall’s crime record was before the Board at his most recent parole hearing. Duvall had claimed that he was intoxicated during the 1962 offenses, did not know that the murder victim would be murdered, and was in another area when the murder occurred. He nevertheless has accepted responsibility and expressed remorse. Duvall still is in contact with his mother (who is over 90 years of age and in failing health) and siblings and, if paroled, plans to live with and work for his brother. His brother promised to support him and is financially able to do so. Letters written on his behalf were described by one Board member as “rather poignant.” Duvall’s classification score was the lowest possible for a life inmate. He availed himself of educational and psychological services. Psychologists concluded that if paroled, Duvall’s risk to public safety was low (“minimal”, “low”, “no more than the average citizen in the community.”) At the parole hearing, it was noted that his baseline term, excepting the period as a fugitive, had expired. There is no indication that any victim opposed parole. (See Pen. Code, § 3043.) The District Attorney opposed parole.
The Board, in granting parole, recognized that the crimes committed in 1962 were treated more leniently for sentencing purposes than they would be today. It noted the following: Duvall had no significant juvenile history of violence; he had established a stable social history during his 19 years as a fugitive; he earned his GED; he had participated in self-help programs, including alcoholics anonymous, and completed a vocational program; he was of advanced age; he had demonstrated maturation growth and greater understanding; he was a diabetic, on dialysis for kidney and liver failure and had hepatitis and hypertension; his life expectancy may not be long; at prison, he was “permanently medically unassigned” and on various “special diets;” he had positive psychological responses; he demonstrated remorse and insight into his crimes; and he had realistic parole plans. The Board said, “We didn’t give you this [parole] date, because you’re an old, sick man; we followed the law.” In granting parole and setting Duvall’s term on May 4, 2006, the Board set his base term at 192 months (16 years) pursuant to California Code of Regulations, title 15, section 2282, subdivision (b) C-III (no prior relationship to victim, severe trauma). The Board deducted 88 months of postconviction credit pursuant to California Code of Regulations, title 15, section 2290, resulting in a total term of 104 months (8 years, 8 months). Conditions of parole included abstention from alcoholic beverages, submission to alcohol testing, and attendance at a parole outpatient clinic.
Duvall is on dialysis three days a week and his condition, according to Duvall, is deteriorating.
DISCUSSION
The Board is comprised of 17 commissioners appointed by the Governor, subject to State Senate confirmation. (Govt. Code, § 12838.4; Pen. Code, § 5075.) Parole is a period of conditional, supervised freedom imposed on prisoners released from prison. It is an “integral part of the penological system. . . . Its purpose is to help individuals reintegrate into society as constructive individuals as soon as they are able, without being confined for the full term of the sentence imposed.” (Morrissey v. Brewer (1972) 408 U.S. 471, 477.) “Though the purpose of parole is to provide a testing period for reintegration of the prisoner into society, the consequences of being on parole are penal. A parolee is, in a real sense, an ‘outside inmate.’ Parole entails a significant array of impositions and liberty curtailment, such as warrantless search and seizure and severe restrictions on travel and other conduct affecting practically every aspect of the parolee’s life. Further, ‘prisoners on parole remain under legal custody and are subject to be returned to prison at any time.’” (In re Carabes (1983) 144 Cal.App.3d 927, 931-932; see People v. Burgener (1986) 41 Cal.3d 505, 531, disapproved on another ground in People v. Reyes (1998) 19 Cal.4th 743, 756.) Parole benefits society by reducing the cost of the correctional process. (Morrissey v. Brewer, supra, 408 U.S. at p. 477.)
Currently, most of the Board’s members have law enforcement backgrounds. (HTTP://www.CDCR.CA.GOV/Divisions_Boards/BOPH/Index.HTML.)
It was reported, “Each year, the Board conducts approximately 4000 parole hearings but grants parole in less than one percent of those cases.” (Weiss, “California’s Inequitable Parole System: A Proposal to Reestablish Fairness” (2005) 78 S.Cal.L.Rev. 1573, 1576.)
California’s prison health system has been determined to be sufficiently deficient so that it is currently under a federal receivership order. (See Plata v. Schwarzenegger (2005) 2005 WL 2932253.) “To house the ‘lifer’ population, each year California spends at least $31,000 per inmate, at an annual cost of nearly $1 billion out of a total annual adult correctional budget of close to $6 billion. As they get older, their incarceration will become far more expensive because of increased health-care costs.” (Editorial, San Francisco Chronicle, July 7, 2005.)
The California Constitution (art. V, § 8, subd. (b)) and the Penal Code (§ 3041.2) grant the Governor the authority to review the Board’s decision to parole an inmate convicted of murder. The Governor’s review is de novo and is governed by the same factors the Board is required to consider. The review is restricted to the Board’s record. Under California law, a court reviews the Governor’s decision to reverse a Board’s parole decision to determine if there is “some evidence” in the record to support that decision. (In re Rosenkrantz (2002) 29 Cal.4th 616, 664, 670 (Rosenkrantz).) The Supreme Court stated, “we have no occasion to determine whether the same standard is also mandated under federal constitutional principles.” (Id. at p. 658, fn. 12.) The precise standard for the application of the “some evidence” test is an issue that has resulted in conflicting opinions and is now before the Supreme Court. (See post.)
Because there are a number of opinions that discuss the standard for reviewing a Governor’s reversal of a Board decision and that issue is now before our Supreme Court, we do not reiterate in great detail the points set forth in the authorities. Most recent appellate decisions (several from this District) have—in overturning the Governor’s reversal of a Board decision granting parole—held that “[t]he test is not whether some evidence supports the reasons the Governor cites for denying parole, but whether some evidence indicates a parolee’s release unreasonably endangers public safety . . . . [In other words,] some evidence of the existence of a particular factor does not necessarily equate to some evidence the parolee’s release unreasonably endangers public safety.” (In re Lee (2006) 143 Cal.App.4th 1400, 1408-1409, fn. omitted; see In re Montgomery (2007) 156 Cal.App.4th 930; In re Dannenberg (2007) 156 Cal.App.4th 1387; In re Elkins (2006) 144 Cal.App.4th 475, 496; In re Scott (2005) 133 Cal.App.4th 573.) There are dissenting opinions and authority providing that the Governor’s decision to deny parole based on his view of the circumstances of the crime will be upheld if there is some evidence to support the Governor’s view that the crime was particularly egregious or heinous. The Supreme Court has granted review in several cases to address this conflict and the appropriate standards for parole. (See e.g., In re Jacobson, review granted December 12, 2007, S156416, 172 P.3d 401, In re Lawrence, review granted September 19, 2007, S154018, 168 P.3d 869.)
This case establishes no new rule of law, but simply determines the existence or nonexistence of evidence under the established rule as applied by a number of authorities.
We adhere to the observations of most of the Courts of Appeal in considering review of the Governor’s decision to reverse the Parole Board. For example, the court in In re Dannenberg, supra, 156 Cal.App.4th at page 1398 (Dannenberg) stated, “Our deferential standard of review, which requires us to credit the Governor’s findings if they are supported by a modicum of evidence, does not mean that the fact that there is a modicum of evidence that a commitment offense was ‘especially heinous’ will eternally provide adequate support for a decision that a prisoner is unsuitable for parole. Indeed, in the wake of the California Supreme Court’s decision in Dannenberg [(2005) 34 Cal.4th 1061], the Courts of Appeal have elaborated on the critical distinction between the [same] finding that the commitment offense was ‘especially heinous’ and the nexus that links that finding to the Governor’s conclusion that the prisoner currently poses an unreasonable risk of danger to society if released.”
The court in In re Scott, supra, 133 Cal.App.4th at page 595 said, “[r]eliance on such an immutable factor [as the nature of the commitment offense] ‘without regard to or consideration of subsequent circumstances’ may be unfair [citation], and ‘runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation.’ [Citation.] The commitment offense can negate suitability only if circumstances of the crime reliably established by evidence in the record rationally indicate that the offender will present an unreasonable public safety risk if released from prison. Yet, the predictive value of the commitment offense may be very questionable after a long period of time[.] [Citation.] Thus, denial of release solely on the basis of the gravity of the commitment offense warrants especially close scrutiny.’”
The court in In re Elkins, supra, 144 Cal.App.4th at pages 498-499 stated, “[T]he commitment offense, this court has observed, is an unsuitability factor that is immutable and whose predictive value ‘may be very questionable after a long period of time [citation].’ [Citation.] We have also noted, as has our Supreme Court, strong legal and scientific support that ‘predictions of future dangerousness are exceedingly unreliable,’ even where the passage of time is not a factor and the assessment is made by an expert. [Citation.] Reliance on an immutable factor, without regard to or consideration of subsequent circumstances, may be unfair, run contrary to the rehabilitative goals espoused by the prison system, and result in a due process violation. [Citation.]”
There are a number of federal court decisions that espouse the same principles as contained in these Court of Appeal opinions. (See, e.g., Irons v. Carey (2007) 505 F.3d 846, 854 [“We hope that the Board will come to recognize that in some cases, indefinite detention based solely on an inmate’s commitment offense, regardless of the extent of his rehabilitation, will at some point violate due process, given the liberty interest on parole that flows from the relevant California statutes”]; Biggs v. Terhune (9th Cir. 2003) 334 F.3d 910, 916.) In a recent federal case, the Ninth Circuit Court of Appeal, in ordering the granting of a writ of habeas corpus and holding that the Governor’s reversal of a Board decision constituted a denial of due process, said, “California courts have made clear that the ‘findings that are necessary to deem a prisoner unsuitable for parole’ [citation], are not that a particular factor or factors indicating unsuitability exist, but that a prisoner’s release will unreasonably endanger public safety.” (Hayward v. Marshall (Jan. 3, 2008, 06-55392) __ F.3d __, 2008 WL 43716 (Judges Kozinski, Friedman, Gould).)
The Board’s parole decisions are governed by Penal Code section 3041 and Board regulations. (Cal. Code Regs., tit. 15, § 2230 et seq.) The Board “shall normally set a parole release date” one year prior to the inmate’s minimum eligible parole release date and shall set the date “in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public . . . .” (§ 3041, subd. (a).)
Penal Code section 3041, subdivision (b) provides a release date must be set “unless [the Board] determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual . . . .” Title 15, section 2402 of the California Code of Regulations sets forth the various factors to be considered by the Board in carrying out the mandates of the statute. The regulations set forth a list of factors tending to show unsuitability or suitability for parole. (Cal. Code Regs., tit. 15, § 2402, subds. (c), (d).) The specified unsuitability and suitability factors are “general guidelines” only. (Ibid.) These regulations are designed to guide the Board’s assessment of whether the prisoner poses “an unreasonable risk of danger to society if released from prison,” and thus, whether he or she is suitable for parole. (Cal. Code Regs., tit. 15, § 2402, subd. (a).) Subdivision (b) of section 2402 directs the Board to consider “[a]ll relevant, reliable information available to the panel . . . in determining suitability for parole. Such information shall include the circumstances of the prisoner’s social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner’s suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.” “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, § 2402, subd. (a).) There is no provision as to what occurs when the immutable facts of the commitment offense, standing alone, cease to be a permissible factor in parole decisions when the inmate has met the suitability factors in the regulations.
We accept that Duvall’s crimes were egregious, and we do not condone his escape from prison and his lengthy fugitive status, but that does not end the analysis. The evaluation of the crime in considering the prisoner’s current risk of danger cannot displace “an individualized consideration of all relevant factors.” (Rosenkrantz, supra, 29 Cal.4th at p. 655.) Although the Governor referred to Duvall’s background and condition, he specifically cited only the 1962 commitment offenses as the reasons for his unsuitability determination. Thus, we must determine whether this one ground—those commitment offenses—constitutes “some evidence,” in view of all of the other factors, that Duvall will pose an unreasonable risk—not no risk—of danger to society if released from prison. (Cf. In re DeLuna (2005) 126 Cal.App.4th 585, 593-594 [“[w]e must confine our review to the stated factors found by the Board . . . not to findings that the Attorney General now suggests the Board might have made”].)
The commitment offenses took place 45 years ago, and there are indications that alcohol played a role. We recognize, however, as stated in In re Dannenberg, supra,156 Cal.App.4th at page 1401, “[i]t is not the mere passage of time that deprives [Duvall’s] commitment offense of predictive value with respect to the risk he may pose to society.”
Admittedly, this is an atypical case because of the escape and nature of the crimes involved. Since being returned to prison in 1992, Duvall has served without any discipline and before his escape, discipline in prison was not significant. He has served about 27 years in prison. There is no indication that he committed crimes while a fugitive (other than being a fugitive and assuming a false identity). He has engaged in self-help programs. He has maintained contact with his family members who are supportive. His brother will take care of him and provide him with work. But even more important is that Duvall is extremely sick and requires significant prison medical resources. He has a limited life expectancy and requires dialysis treatment every other day as well as insulin treatments. Duvall will live with his financially secure brother, who has promised to support him. His family members, including his over-90 year old, infirm mother, have offered support. All the reports conclude that he is a low risk for crime. (It is never said that there is no risk.) He has accepted responsibility for his crimes and expressed remorse for them.
In one of the cases now before the Supreme Court, in where the Court of Appeal required parole, the petitioner had committed first degree murder and had been a fugitive for many years. (In re Lawrence, no. S154018)
Professor Norval Morris wrote, “[T]hirty years of careful compilation of base expectancy rates for parole revocation risk and later conviction risk reveal that only three possible changes in the life of the prisoner during his incarceration are correlated with his later conformity to the conditions of his parole and with his avoidance of conviction for crime after his release—the availability of a family or other supportive social group for him to join on release; the availability of a reasonable supportive job; and the process and duration of aging itself.” (Morris, The Future of Imprisonment (1974) pp. 35-36.)
Respondent does not dispute any of the facts concerning Duvall’s medical condition.
As noted, there is no question that the crimes committed in 1962 were heinous, but Duvall did not personally kill anyone. Although “an accomplice is treated the same as the perpetrator of a crime for purposes of determining guilt and imposing sentence,” (In re Montgomery (2007) 156 Cal.App.4th 930, 946-947) that Duvall was not the “shooter” should be considered. (Ibid.)
The trial court stated, “The Governor must consider the same factors as the Board, but he may weigh factors differently and be more ‘stringent or cautious’ in determining the risk posed to society. (Rosenkrantz, supra, 29 Cal.App.4th at 686.) In this case, the only factors indicating unsuitability for release are the commitment offense and juvenile convictions for car theft and a gang-related fist fight, which occurred over 50 years ago and a non-violent conviction for forgery. All of these are immutable factors that occurred long ago. This past criminality has lost predictive value over time and is no longer reliable evidence that petitioner’s release from prison would unreasonably endanger public safety. (Lee, supra, Cal.App.4th at 1408; Scott, supra, 133 Cal.App.4th at 595.) The Court finds no evidence that petitioner is likely to commit another crime or that his release would pose an unreasonable risk to public safety.” We do not believe we should reverse the trial court.
There have been a number of cases in which the commitment offense was a particularly heinous murder, but the court found there was not “some evidence” that parole after many years would pose an unreasonable risk of danger to society. For example, in In re Smith (2003) 109 Cal.App.4th 489, the parolee was convicted for his role in the shooting, beating, and drowning of another drug dealer. In In re Lee, supra, 143 Cal.App.4th 1400, a man seeking to collect a debt fired a gun five times (before his gun jammed) at the debtor and killed the debtor’s wife. In In re Elkins, supra, 144 Cal.App.4th at page 475, a man who was on probation struck the victim with a baseball bat, then beat him to death with that bat, drove the body into the wilderness, where he disposed of it, stole more of the victim’s belongings from a locker, and fled the state. In In re Montgomery, supra, 156 Cal.App.4th 930, a man agreed for money to drive another man to execute the victim, which was done. Both fled. Intentional murder is inevitably “atrocious, heinous and callous.” In the end, such a crime would seem to defy a comparison of abhorrence.
In these and other cases, whether first degree or second degree murders, the crimes were “atrocious, heinous, or callous”—the term often employed by the Governor. (See Cal. Code Regs., tit. 15, § 2402, subd. (c)(1).) But as the cases cited discuss, over long periods of time, the crime often loses its value to predict a danger to society. Certainly the crimes of a serial or psychopathic killer do not lose their predictive quality. But in such cases, one would not expect psychiatric evaluations of low risk of continued crime or of a danger to society. And thus, in those cases, clearly the commitment offenses alone would be sufficient to reject parole.
The views expressed in the dissenting opinion are not without merit, and we respect its author’s strongly stated views. We seriously considered them, and we respect the perogatives of the Governor and do not question his sincerity. This is the first time this Division has ruled as we do. Yes, the commitment offenses are some evidence of a risk to public safety—but the issue is whether they are some evidence of an unreasonable risk. We also considered the views of the Board, which, unlike the Governor, personally interviewed Duvall and has observed him over a period of time, and those of the well-respected Superior Court judge, who also sees this case differently than as set forth in the dissent.
The Board’s action here is not consistent with a federal court’s critical assessment that “the Board appears to have capitulated to the blanket no-parole policy . . . abandoning its role as an independent assessor of petitioner’s eligibility.” (Martin v. Marshall (N.D. Cal. 2006) 448 F.Supp.2d 1143, 1144.)
Duvall committed serious acts when he was 22 years old. He is now 68 years old. During his youth, he was often under the influence of alcohol, and this surely had a role in his fighting and this particular crime spree. Had he a permanent uncontrollable urge for violence, it would seem that it would have manifested itself in prison or while he was a fugitive, or would have been detected by the psychologists who evaluated him. But it did not. Indeed, the reports state he is a particularly low risk. It might be said that he did not commit crimes while a fugitive because he did not want to return to prison. If that is so, the same incentive exists if he is on parole. One slip and he can be returned to prison for the rest of his life. (See Morrissey v. Brewer, supra, 408 U.S. at pp. 478-479 [“The enforcement leverage that supports the parole conditions derives from the authority to return the parolee to prison to serve out the balance of his sentence if he fails to abide by the rules”].) As for alcohol, he fully understands that with his physical conditions, alcohol could be fatal. While on parole, he is to be monitored for alcohol. Had Duvall not escaped, under the system in place then, it is likely he would have been paroled in a few years. The maximum punishment for an escape is three years. (Pen. Code, § 4530.) Duvall has now served 16 years since being returned to prison. So he has suffered severe consequences for his escape.
There is no showing that the commitment offenses committed 46 years ago relied upon by the Governor continue to render Duvall an unreasonable risk of danger to society in view of all of the other circumstances discussed. Thus, we conclude that the necessary “some evidence” does not support the Governor’s conclusion, and we therefore affirm the trial court’s decision granting the writ of habeas corpus.
In this instance, to remand to the Governor for reconsideration would, in effect, “‘amount to an idle act.’” (In re Scott, supra, 133 Cal.App.4th at p. 603; see also In re Smith, supra, 109 Cal.App.4th at p. 507 [“Since we have reviewed the materials that were before the Board and found no evidence to support a decision other than the one reached by the Board, a remand to the Governor in this case would amount to an idle act”].)
In view of our conclusion, we do not reach the other grounds invoked by Duvall.
DISPOSITION
The order granting Duvall’s petition for writ of habeas corpus is affirmed.
I concur: ARMSTRONG, Acting P. J.
KRIEGLER, J., Dissenting.
I respectfully dissent. Inmate David Duvall is an extraordinarily violent career criminal who escaped from state prison for a period of 19 years, while serving a combination of 16 concurrent and consecutive life terms. My colleagues tell the Governor there is “some evidence” to support his finding that Duvall is a threat to public safety if released, but that there is no evidence the threat posed by Duvall is an unreasonable one. This subjective review of the Governor’s decision to reverse a grant of parole is inconsistent with binding California Supreme Court authority. A deferential review of the record in this case plainly reveals “some evidence” to support the Governor’s decision reversing the grant of parole by the Board of Parole Hearings (the Board). (In re Rosenkrantz (2002) 29 Cal.4th 616, 665 (Rosenkrantz).) Because this is not a close case, I cannot join the opinion of the majority.
The Governor engaged in a detailed review of Duvall’s case pursuant to his constitutional and statutory authority. (Cal. Const., art. V, § 8, subd. (b); Pen. Code, § 3041.2.) That review included the facts of the commitment offenses, the convictions suffered by Duvall, his criminal history including violence, the 1973 escape from state prison, Duvall’s positive prison record after recapture and his medical condition, and the circumstances of the commitment offenses. The majority does not dispute the accuracy of any of the facts relied upon by the Governor, and in fact accepts “that the crimes were egregious” and does “not condone [Duvall’s] escape from prison and lengthy fugitive status.” The following is the text of the Governor’s analysis of why Duvall remains an unreasonable threat to public safety:
Duvall’s crime partner fired the fatal shot during one of the nine incidents of robbery the crime partners perpetrated, a fact twice mentioned by the Governor in his decision. Because the Governor was aware of who fired the shot, the majority’s citation to In re Montgomery (2007) 156 Cal.App.4th 930, 946-947 adds nothing to the analysis. In Montgomery, the Governor failed to take into account the inmate was not the actual killer—a problem not present in Duvall’s case.
The majority emphasizes that “Duvall is extremely sick and requires significant prison medical resources.” Duvall’s medical prognosis is not clear, as the parties agreed at oral argument that there is no medical report in the record on appeal. Duvall told the Board he was told “by a guy” in 2004 that he would die shortly without dialysis and would live for one year with dialysis. Duvall is still alive in 2008, and a commissioner at the 2006 hearing told him “you look pretty good.” Duvall is purportedly going to work as a maintenance man on his brother’s property if released, a job seemingly at odds with someone who is “extremely sick.” Duvall has not applied for a compassionate release under Penal Code section 1170, subdivision (e)(2). I in no way suggest Duvall is not ill, but merely point out there is no evidence he is so debilitated as to be unable to commit additional crimes.
“Despite the positive facts that I have considered, the first-degree murder for which Mr. Duvall was convicted was especially aggravated because he actively and willingly participated in nine armed robberies—serious crimes that, by their very nature, involve the risk of physical harm or death—and one of which resulted in a cruel and unprovoked murder of an innocent victim. Indeed, the offense was carried out in a manner demonstrating an exceptionally callous disregard for human suffering and life. According to the Statement by Judge and District Attorney, after [Duvall’s crime partner] shot [the victim] in the back, he and Mr. Duvall ‘completed the robbery of some 30 to 40 patrons and while the victim was on the floor [Mr. Duvall and his crime partner] kicked and cursed the victim for moaning and upon leaving the premises they kidnapped two women patrons whom they took as hostages . . . whom they drove some four miles from the place, bound and gagged them with adhesive tape and abandoned them in a stolen automobile . . . .’ Furthermore, the Statement by Judge and District Attorney noted that Mr. Duvall and [his crime partner] kicked and pistol whipped several other robbery victims, one of whom was ‘so severely beaten and pistol whipped about the head by [Mr. Duvall] that it required in excess of 100 sutures to close the head wounds and the pistol used by [Mr. Duvall] became inoperative as a result of its use in connection with this beating that it had to be disposed of and [Mr. Duvall] acquired another gun.’ The nature and circumstances of the first[]degree murder perpetrated by Mr. Duvall are alone sufficient for me to conclude presently that his release from prison would pose an unreasonable public-safety risk. The fact that Mr. Duvall, according to the Statement by Judge and District Attorney, proceeded to commit three additional armed robberies with his partner over the next 18 days makes his actions even more atrocious. The Los Angeles County District Attorney’s Office appeared at Mr. Duvall’s 2006 hearing and opposed parole based on the gravity of ‘the whole series of vicious, violent, sadistic crimes’ he committed.”
The extreme level of violence found in Duvall’s commitment offenses, standing alone, supports the Governor’s decision to reverse the grant of parole. As our Supreme Court has stated, “‘the nature of the prisoner’s offense, alone, can constitute a sufficient basis for denying parole. [Citations.]’ (Rosenkrantz, supra, 29 Cal.4th [at p.] 682.)” (In re Dannenberg (2005) 34 Cal.4th 1061, 1094 (Dannenberg).)
Although the facts of the underlying offenses and escape are more than sufficient to support the Governor’s decision under Rosenkrantz and Dannenberg, when Duvall’s history of violence and deceit are also considered, there should be no doubt the Governor acted within his discretion in reversing the grant of parole. Duvall came before the juvenile court at the age of 15 for his involvement in what was described as a gang fight and near riot. He served six months in the stockade and was dishonorably discharged from the United States Marine Corps for frequently getting into fights, drinking, and insubordination. Duvall had two convictions for violence as an adult. After discharge from the Marines, Duvall had a fight with his boss’s son, which resulted in probation and a fine. While on felony probation for forgery, Duvall engaged in a bar fight in which he caused a laceration to the head of another person. According to a probation report, Duvall pled guilty to battery and disturbing the peace, as a result of the bar fight. The Governor specifically referenced Duvall’s criminal history in his particularized review of the grant of parole.
There is another reason why Duvall’s history of violence is significant. Duvall was on felony probation for forgery in 1962 at the time of his crime spree. When his probation was violated due to the bar fight in December 1961, Duvall told the probation officer he was aware of the seriousness of his conduct and would never again be involved in such an incident. The probation officer bought into Duvall’s statement, advising the superior court that he was convinced there would be no repetition of a similar nature. The probation officer was duped by Duvall; within two months, Duvall and his crime partner went on a crime spree that gave rise to the commitment offenses. In the face of this evidence along with Duvall’s violent past, the Governor was not required to accept Duvall’s claims of remorse and rehabilitation at face value.
Further support for the Governor’s decision is found in Duvall’s 1973 escape from state prison, which the Board viewed as a positive factor because there was no evidence Duvall committed additional offenses while at large for 19 years. The majority describes this case as being “atypical” due to Duvall’s escape; the Governor found the escape to be an aggravating factor, which is certainly a reasonable conclusion under the circumstances. The only issue in this regard is whether the Governor could find the escape demonstrated that Duvall continued to pose a danger if released, not whether this court agrees. The Governor specifically chided the Board for crediting Duvall with being crime free while at large, because the escape itself constituted serious criminal conduct and Duvall remained a fugitive for 19 years. The notion that Duvall was crime free for 19 years seems preposterous. Duvall was in violation of the law each day he was a fugitive from the 16 life terms he was supposed to be serving, and he claims to have survived by committing identity theft, which can hardly be described as abiding by the law.
Duvall’s decision in 1973 that he was above the law and not required to serve his 16 life terms is “some evidence” he will not abide by the law if released. It is not as though Duvall were an innocent man who fortuitously escaped prison and spent 19 years trying to find the real killer; there has never been a question as to Duvall’s guilt of these numerous despicable crimes. The escape tends to support, not undercut, the Governor’s determination that Duvall remains a danger to the public.
The ultimate issue in this case is whether “some evidence” exists to support the Governor’s conclusion that Duvall continues to pose an unreasonable risk to public safety if released on parole. Under the criteria set forth in title 15, section 2281 of the California Code of Regulations, a prisoner shall be found unsuitable for parole if the prisoner poses an unreasonable risk to society if released from prison. (Id., subd. (a).) A prisoner may be found unsuitable for parole if he “committed the offense in an especially heinous, atrocious or cruel manner.” (Id., subd. (c).) The regulations set forth the factors to be considered in determining if the offense is especially heinous, atrocious or cruel. As set forth below, Duvall meets nearly every relevant factor in support of unsuitability—a point which the majority does not dispute, while still ordering his release.
There is abundant evidence to support the Governor’s determination that Duvall is unsuitable for parole based on the commitment offenses because (1) multiple victims were attacked, injured, or killed, (2) the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder, (3) the victim was abused, defiled, or mutilated during or after the offense, (4) the offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering, and (5) the motive for the crime is inexplicable or very trivial in relation to the offense. (Cal. Code of Reg., tit. 15, § 2281, subd. (c)(1)(A)-(E).) Another factor indicating unsuitability is Duvall’s record of violence. (Id., subd. (c)(2).) Finally, Duvall’s escape is unquestionably an aggravating factor as it constitutes “serious misconduct in prison or jail.” (Id., subd. (c)(6).)
No California court has ordered release on parole of a first degree murder inmate who engaged in a crime spree involving the level of violence employed by Duvall. It takes a remarkable degree of depravity to beat robbery victims senseless with a gun and to kick a dying man because his moans are interfering with other armed robberies. The facts in this case are far more aggravated than those in Rosenkrantz and Dannenberg, in which our Supreme Court held there was “some evidence” to support a denial of parole. Unless and until the actual holdings in Rosenkrantz or Dannenberg are overturned by the Supreme Court, we should abide by the result in those opinions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Although the majority states that “[t]his case establishes no new rule of law,” the majority applies a standard of subjective review never articulated by any court. Moreover, the majority opinion applies to “a set of facts significantly different from those stated in published opinions,” since the majority describes the case as “atypical” due to Duvall’s escape and the nature of the crimes involved. Right or wrong, the majority opinion should be published. (Cal. Rules of Court, rule 8.1105.)
The nature of an inmate’s commitment offense may continue to serve as the basis for a denial of parole long after the date of the commitment offenses. (See In re Van Houten (2004) 116 Cal.App.4th 339, 362-364.) When that inmate also has a history of violence before the commitment offenses and escapes from state prison for 19 years, there is “some evidence” to support a finding of current unreasonable risk to public safety.
For the foregoing reasons, I would reverse the order granting Duvall’s petition for writ of habeas corpus.