Opinion
NOT TO BE PUBLISHED
Superior Court County, Super. Ct. No. 1213797, of Santa Barbara, Clifford R. Anderson, III, Judge
Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Heather Bushman, Gregory J. Marcot, Deputy Attorneys General, for Appellant.
County of Santa Barbara Office of the Public Defender, Gregory C. Paraskou, Public Defender and Raimundo Montes De Oca, Assistant Public Defender for Respondent.
GILBERT, P.J.
John Marshall, as Warden of the California Men's Colony, Department of Corrections and Rehabilitation (Marshall) appeals a superior court order, which granted inmate Robert Joseph La Cava's petition for writ of habeas corpus and overturned the Board of Parole Hearings' (Board) decision which denied La Cava parole. We conclude, among other things, that the trial court erred by granting the writ because there was evidence to support the Board's findings that La Cava was unsuitable for parole. We reverse.
FACTS
In 1981, La Cava murdered his girlfriend, Katie Kennedy. He struck her head twice with a large rock. These "massive" blows caused a skull fracture. Kennedy was mortally injured. La Cava wrapped a telephone cord around her neck, then strangled her to death.
La Cava told the emergency crew at the scene that he saw Kennedy outside, brought her into his house, placed her in the bathtub and tried to revive her. Later, however, he told police that he had strangled Kennedy, but did not remember hitting her with any object. He said he had "snorted cocaine" and "that when he does, 'he goes crazy.'" He told a probation officer that when he killed Kennedy, "the reason was most likely that he was imagining things about her, such as being a drug agent or a monster." He disagreed with the prosecution's claim that he murdered her in revenge for leaving him.
A week before the murder, Kennedy told La Cava she was thinking of moving out of his home. La Cava told her she "better not even think about it." Kennedy's mother told a probation officer that Kennedy told her friends she was leaving La Cava because he "trafficked too much in cocaine, and she also wanted to date other men." La Cava was convicted of second degree murder.
Parole Hearing and Board's Decision
At the hearing, the Board questioned La Cava about his claim that cocaine psychosis was the reason he killed Kennedy. La Cava said he "was . . . a cocaine addict and [he] was experiencing psychosis. And if [he] wasn't experiencing psychosis . . . the crime wouldn't have happened . . . ." He acknowledged that the psychiatrists and psychologists who evaluated him did not believe his claim that cocaine psychosis was the cause of his crime. They told him that such a condition is a rare event. La Cava told the Board: "But [cocaine psychosis] does happen more frequently today than ever before. And so, again, . . . I run into the problem that I run into with [the Board] in the past, with the psychs [sic] . . . . So, that's not going to change. I can't change what I don't remember."
Commissioner McBean asked La Cava: "I know you don't want to discuss the factors of this crime, but do you want to discuss how you feel about the crime, today?" La Cava responded: "I know that you have very probative questions for me . . . . I just didn't want to get involved in discussing my lack of memory and going back and forth on whether or not I'm a psychotic and the use of cocaine and if I took Katie's life because I was upset because she was leaving me. I didn't want to get hung up on that, because we have in the past. A long time." Commissioner McBean said: "Well, that might be an issue, again. But don't you want to discuss those issues?" La Cava said: "You know, if it's an issue . . . it's always going to be an issue and my term might as well just be set to life without parole."
Commissioner McBean told La Cava that the Board had to consider how he felt about the crime, his level of remorse and his level of insight. She again asked: "[D]o you want to answer those kind of questions?" La Cava responded: "The problem that I have is that my recollection of the facts is never going to change . . ., there is no way I can access memories from the psychosis."
Scott Kennedy, the brother of the victim, told the Board: "[T]he impact that [La Cava] has had on our family he will never know because he is a BS artist with himself as his best customer. He really doesn't understand what he did and I don't think he ever will. He skirted the whole issue today of reasons why, because that's always been his stumbling block. . . . [T]he crime here is 15 to life and I still don't see any remorse."
The Board found, among other things, that: 1) La Cava was not yet suitable for parole and would pose an unreasonable risk of danger to society, 2) his crime was committed in an especially cruel and callous manner, 3) he had prior prison disciplinary violations which included a physical assault on another inmate, 4) his psychological evaluations showed that he lacked insight about the causative factors that led him to commit murder, and 5) his prior criminal record included importing hashish into this country.
Habeas Proceeding
La Cava filed a petition for writ of habeas corpus in the superior court to challenge the Board's decision. The court granted the petition and found, among other things: 1) that his murder of Kennedy was not "especially" cruel, 2) the Board's finding that he lacked insight about why he committed murder was not supported by evidence, 3) La Cava's disciplinary violations for possessing a hobby hammer in prison and attacking another inmate were insignificant, and 4) his prior criminal record was minor and could not be used as a factor showing unsuitability for parole. The court also ruled that the Board erred by implicitly finding that La Cava was not credible at the parole Board hearing. It said La Cava adequately explained his inability to discuss his feelings about the murder when he stated he could not remember details about the crime.
DISCUSSION
I. Board's Decision to Deny Parole
Marshall contends the trial court erred because the Board properly considered the parole suitability factors in denying parole and its findings are supported by "some evidence." We agree.
"'[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.' [Citation.]" (In re Honesto (2005) 130 Cal.App.4th 81, 95 (Honesto).) "Judicial review of the Board's decision is . . . highly deferential, but our review of the superior court's decision is independent because the superior court based its order solely upon documentary evidence. [Citation.]" (Id. at p. 94.) "'. . . As long as the [Board]'s decision reflects due consideration of the specified factors as applied to the individual prisoner . . ., the court's review is limited to ascertaining whether there is some evidence in the record that supports the [Board]'s decision.' [Citation.]" (Ibid.) "'Only a modicum of evidence is required. Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the [Board] . . . ." (Ibid.)
A. Severity of Offense
Marshall contends the Board may rely on the severity of La Cava's offense as a factor to support the decision that he is unsuitable for parole. He claims the trial court improperly weighed the facts and did not consider the evidence showing that the murder of Kennedy was especially callous and cruel. We agree.
Unsuitability for parole is shown where the defendant committed the offense in an especially heinous, atrocious or cruel manner. (Honesto, supra,130 Cal.App.4th at p. 95.) A crime is especially heinous if it was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. (Ibid.) The nature of the prisoner's offense, alone, can constitute sufficient basis for denying parole. (In re Rosenkrantz (2002) 29 Cal.4th 616, 682 (Rosenkrantz).) But it is necessary to remember that "a denial of parole based upon the nature of the offense alone may rise to the level of a due process violation – for example[,] where no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction for that offense." (Id. at p. 683.)
"[T]he parole authority may credit evidence suggesting the inmate committed a greater degree of the offense than his or her conviction evidences. [Citation.]" (In re Dannenberg (2005) 34 Cal.4th 1061, 1095, fn. 16 (Dannenberg).) Dannenberg struck his wife's head with a pipe wrench and rendered her helpless from her injuries, then forced her head under water until she died. (Ibid.) Our Supreme Court concluded the murder was especially callous and cruel, and beyond the minimum elements of second degree murder. (Ibid.) It held the board could rely on the facts of this offense as a factor to support its decision to deny parole. (Ibid.)
Here the facts of La Cava's offense are similar to Dannenberg. La Cava struck Kennedy twice with a rock and rendered her helpless. She was mortally wounded and her skull was fractured. He then strangled her to death. He caused the victim's helpless condition, then took advantage of it to commit murder.
In Dannenberg, there was some provocation. The victim argued and struggled with the defendant. The defendant claimed he had been rendered "briefly unconscious" during the struggle. (Dannenberg, supra, 34 Cal.4th at p. 1095.) Here there was no argument, struggle or resistance by Kennedy. She posed no threat to him. La Cava told a probation officer that he remembered strangling Kennedy and seeing her smiling at him. Strangling a victim to death is the type of murder which involves severe trauma to the victim and aggravated human suffering under the Board's parole guidelines. (In re Scott (2004) 119 Cal.App.4th 871, 892.) The Board could reasonably find La Cava's crime was especially callous and cruel. (Ibid.)
Marshall notes that prior panels had denied La Cava parole. Marshall contends the Board was justified again in denying parole based solely on the ground that the commitment offense was egregious. Some appellate courts agree with this view. (See In re Andrade (2006) 141 Cal.App.4th 807, 819, In re Lowe (2005) 130 Cal.App.4th 1405, 1427 (Lowe).) But many others do not. (In re Lee (2006) 143 Cal.App.4th 1400, 1412; In re Scott (2005) 133 Cal.App.4th 573, 594-595 (Scott).)
We held, except in rare cases, that as "time passes and the number of parole denials increase, . . . the circumstances of the offense that at first supported a decision to deny parole become increasingly attenuated." (In re Montgomery (2007) 156 Cal.App.4th 930, 946 (Montgomery).) Repeatedly denying parole, solely on the nature of the commitment offense, may violate due process where decades have passed and the prisoner is otherwise suitable for release. (Ibid.; see also Scott, supra,133 Cal.App.4th at pp. 594-595.) But our "Supreme Court has not yet provided clear guidance as to when the immutable facts of the commitment offense, standing alone, cease to be a permissible factor in parole decisions . . . ." (Montgomery, at p. 946.) Here, however, the Board relied on factors in addition to the commitment offense to support its denial of parole.
B. Prior Record
Marshall contends the trial court erred by finding that there was no prior criminal record which would indicate unsuitability for parole. We agree.
The Board reviewed La Cava's prior state criminal record and found it was minor. But it also noted that he served a prior federal prison term after his conviction for importing hashish in 1972. The Board may consider a prisoner's prior record in determining suitability for parole. (Honesto, supra, 130 Cal.App.4th at p. 95.) Here it could reasonably find that La Cava's prior federal prison term and drug trafficking offense were negative suitability factors when combined with a murder conviction. (Ibid.)
The Board could also infer that La Cava's 1972 drug smuggling conviction was not an isolated event. La Cava told a probation officer that this incident was part of his partner's "big scheme of importing hashish from Morocco." He said he started using drugs in high school and continued to use them as an adult. From 1977 to 1981, "he was using cocaine extensively." From 1980 until he was arrested for murder, he was "selling drugs in large quantities." La Cava's extensive history involving drugs "was a legitimate factor for the Board to weigh in favor of a denial of parole." (In re Fuentes (2005) 135 Cal.App.4th 152, 163.)
C. Prison Disciplinary History
Marshall contends the trial court improperly reweighed the evidence and found La Cava's history of prison discipline to be trivial. We agree. The court found there was nothing in his disciplinary record suggesting a negative parole suitability factor.
But the Board found otherwise, and balancing the weight to be given to this factor is a matter within the Board's discretion. (Honesto, supra, 130 Cal.App.4th at p. 94.) In 1991, La Cava failed to return a "hobby" hammer to prison authorities. At the parole hearing, La Cava admitted he violated prison rules.
In 1993, La Cava punched another inmate, knocked him out and broke his jaw. The trial court found La Cava's attack on the inmate who had been following him was justified or excusable. But it ignored evidence in the record which showed that it was not. At the parole hearing, La Cava admitted "it was a stupid thing to do." In addition, after prison authorities disciplined La Cava for this incident, he appealed. A disciplinary appeals panel affirmed the discipline and rejected La Cava's claim that he acted in self-defense.
The Board noted that this event showed La Cava had a serious problem in resolving uncomfortable situations without violence. It said psychiatric evaluations indicated he lacked insight as to why he engaged in violence. The Board viewed this event as part of a larger pattern which raised serious questions about his suitability for parole.
D. Lack of Insight About Committing Murder
Marshall contends the court erred by ignoring evidence the Board relied on about La Cava's lack of insight about committing murder, and in making its own findings by reweighing the evidence. Marshall is correct.
A prisoner's insight into his offenses and his understanding of the nature, magnitude and causes of his crime are important parole suitability factors. (Cal. Code Regs., tit. 15, § 2402, subd. (d)(3); In re Elkins (2006) 144 Cal.App.4th 475, 493.) Where a prisoner lacks such insight, the board is justified under the "'some evidence'" standard in considering the prisoner's need for further counseling a factor supporting parole denial. (In re Van Houten (2004) 116 Cal.App.4th 339, 355 (Van Houten).)
Here the Board found that La Cava lacked insight into why he murdered Kennedy and did not appreciate the seriousness of his actions. These findings are supported by some evidence. Joe Livingston, a staff psychologist, found La Cava has "a lack of insight . . . in regard to causes of his murdering someone that he says that he loved very much." He also "has not accessed mental health services during the current reporting period." He noted that La Cava claimed he murdered Kennedy because of cocaine intoxication. But psychological evaluators throughout his incarceration concluded his explanation showed his lack of appreciation about what caused him to kill. His initial psychological evaluation indicated La Cava had "murderously angry feelings . . . which then led to the murder."
Dr. Livingston noted that several years later, Dr. Jack Tolchin concluded La Cava continued to give "an inadequate explanation for committing murder, and it now becomes [La Cava's] task to invoke himself in long-term, insight-oriented . . . psychotherapy so that he might become more conversant with these subconscious forces and the motivations which contributed to his crime." But that did not happen.
In 1989, Dr. John Gannon found La Cava continued to claim that his offense was attributable to cocaine. In 1991, Dr. H. G. Sanchez, said La Cava, "blames the murder solely on cocaine intoxication. This is a naïve and insightless explanation . . . ."
In 1995, La Cava told John Saunders, a staff psychiatrist, that "he was using cocaine frequently leading up to" the murder. But Dr. Saunders concluded that he had not discussed his aggressive feelings and was not honest with himself. In 2004, La Cava again claimed cocaine addiction was responsible. But Dr. Livingston noted this would not explain the underlying reasons why he murdered Kennedy. He said La Cava "continues to try and stretch" the excuse of cocaine addiction, instead of dealing with the real causes for his crime. He noted that La Cava tends to "rationalize" and is not honest with himself or his psychological evaluators.
The trial court noted that Dr. Livingston opined that La Cava was a low risk for violence. But Dr. Livingston also identified several unfavorable psychological factors. The Board is not bound by an expert's ultimate conclusion and may rely on factual findings in the expert's analysis to reach a different conclusion. (People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427; White v. State of California (1971) 21 Cal.App.3d 738, 759-760; People v. Gentry (1968) 257 Cal.App.2d 607, 611.) The chief value of an expert's testimony rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion; it does not lie in his mere expression of conclusion. (People v. Lawley (2002) 27 Cal.4th 102, 132.) Moreover, the psychological reports are only one factor the Board considers to determine the inmate's risk to the public. Others include the nature of the crime, the inmate's insight, need for further psychological treatment and a prior unstable social history. (Van Houten, supra, 116 Cal.App.4th at p. 356.) The importance attached to any circumstance or combination of circumstances is left to the judgment of the panel. (Lowe, supra, 130 Cal.App.4th at p. 1427, fn. 5.) "'. . . It is irrelevant that a court might determine that evidence . . . tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole. . . .'" (Id. at p. 1429.)
Here the Board could give less weight to Dr. Livingston's ultimate conclusion on risk because he also said La Cava needed to develop "a strong relapse prevention program." La Cava had an extensive history of using and selling drugs. As Dr. Livingston noted, a prior psychiatric evaluator concluded that with substance abuse, La Cava's risk of violence would become high. Numerous psychiatric reports, including Dr. Livingston's, had established La Cava's lack of insight about why he committed murder. The Board could also infer this from La Cava's testimony at the hearing. Dr. Livingston relied on an earlier psychiatric evaluation by Dr. Saunders who diagnosed the connection between La Cava's lack of insight and violence. Dr. Saunders said "[p]ersons with this amount of difficulty with hostility tend to let it build up instead of expressing it appropriately, and on occasions when their coping skills are not adequate they may feel overwhelmed or disorganized and act on the aggressive feelings." Dr. Livingston noted that even though La Cava had participated in treatment programs, he still continued to "rationalize" and not candidly discuss his responsibility for murdering Kennedy.
The Board could reasonably infer from this, the facts of the crime, La Cava's history of drug abuse, drug dealing, his attack on the inmate, and his unresolved psychological condition that he posed a high degree of risk if released. The trial court erred by ruling that no evidence supported the Board's findings. (Rosenkrantz, supra, 29 Cal.4th at p. 679.)
It also erred by rejecting the Board's implicit finding that La Cava was not credible. La Cava evaded the Board's questions about his current feelings about the murder. The trial court found the Board could not question his credibility by finding that he lacked insight about what he had done. It said La Cava adequately explained his inability to discuss the crime when he told the Board he did not remember the details of the offense.
But La Cava told police that he remembered strangling Kennedy, and he had no problem discussing his feelings about the murder with a probation officer. Because he remembered how he killed Kennedy, the Board could reasonably infer that he deliberately evaded its questions about his feelings about his crime. It could also find that his cocaine amnesia claim was not credible and he used it to avoid answering questions about events he remembered. Psychiatric reports showed the absence of cocaine psychosis. The superior court erred by substituting its own judgment to credit La Cava's credibility. (Rosenkrantz, supra, 29 Cal.4th at p. 677.)
E. Ignoring Positive Suitability Factors
La Cava claims the Board ignored positive parole suitability factors, such as his completion of drug and alcohol rehabilitation programs, educational degrees and a favorable letter from the district attorney's office. But the Board did not ignore them. It noted La Cava had "done a commendable job" and had made significant progress. It encouraged him to continue those efforts. But it weighed them with other less favorable factors to reach its decision that he was not yet suitable for parole. It told him the area where he needed improvement. It gave him the name of a support group for counseling assistance.
The judgment granting La Cava's petition is reversed. The matter is remanded to the Superior Court with directions to enter a new judgment denying his petition.
We concur: YEGAN, J., PERREN, J.