In re ALFRED WILLIAM RODERICK
Filed 8/17/07
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re ALFRED WILLIAM RODERICK, on Habeas Corpus. | A113370 (Humboldt County Super. Ct. No. CV050566) |
The Attorney General appeals from a superior court order granting a petition for writ of habeas corpus filed by Alfred William Roderick, who is now 75 years old. The superior court determined that the factors relied upon by the Panel of hearing officers representing the Board of Parole Hearings in denying Roderick parole were not supported by some evidence.[1] The court granted Rodericks petition and referred the matter back to the Board for further review consistent with the courts ruling. The Attorney General urges us to reverse the courts decision, arguing that there is some evidence in the record to support each of the factors upon which the Panel relied in denying Roderick parole. We affirm.
I. FACTUAL BACKGROUND
A. The Commitment Offense
On April 11, 1986, Roderick was convicted of one count of second degree murder with the use of a deadly weapon and sentenced to 16 years to life in prison. The murder occurred when Roderick stabbed another man, Michael Obie, outside of a saloon in Eureka. According to police reports, as summarized in the probation officers report, Roderick and Obie began arguing inside the bar and Roderick challenged him to go outside and fight. Roderick reportedly punched Obie as they were going out the door, and then hit him again as Obie exited the saloon.[2]The altercation continued outside and a few seconds later it was reported that [Obie] had been stabbed.
The record before us also discloses the following additional facts: Obie began harassing Roderick inside the bar when he ascertained that Roderick was the father of a security guard at Safeway who had arrested Obies aunt for shoplifting. During the fight that took place outside the saloon, Obie pulled a hunting knife, the two struggled over the knife, and, ultimately, Roderick gained control of the knife and stabbed Obie in the chest. Roderick was drunk at the time of the crime. Obie was on parole for first degree murder.
B. History of Parole Hearings
1. 1994
Rodericks minimum eligible parole date was August 28, 1995. Accordingly, his initial parole hearing took place in 1994. In the life prisoner evaluation report prepared for that hearing, Rodericks behavior in prison is described as marginal, with an average relationship with staff and other inmates. The report also sets forth a disciplinary history which indicates he had a CDC 115[3]for possessing marijuana in 1993, and that he was stabbed during an altercation with his cell mate in 1989. Roderick was assessed to pose a moderate threat to the public if released. A psychiatric evaluation prepared in 1994 states that Roderick demonstrates little self-understanding about the causative factors regarding [the commitment] offense or his previous offenses. Roderick was diagnosed with [a]lcohol intoxication and an [a]ntisocial personality disorder, which reflects a lifestyle of repetitive crime compounded by substance abuse. The report states that [i]n a less controlled setting, he would be less dangerous if he maintains his sobriety, but that can not be predicted nor guaranteed. No psychiatric treatment was indicated.
The Panel found Roderick would pose an unreasonable risk of danger to society if released, and denied parole, articulating the following reasons: (1) The commitment offense was carried out in a manner which exhibits a callous disregard for the life and suffering of another; (2) Roderick failed to develop a marketable skill; (3) Roderick failed to demonstrate evidence of positive change; he received a recent CDC 115 for possession of a controlled substance; and (4) the psychological report was not totally supportive of release. One commissioner commented that Roderick appeared to have a very nonchalant, indifferent attitude about [his] whole situation, about [his] life history and the crime. Another commissioner stated: Im really puzzled by the solution as to what [Roderick] can . . . do to keep [himself] out of prison, which I dont think [he] really cares much about in or out of prison. Roderick responded that, for sure, thats one thing he would be doing.
2. 1997
Rodericks next parole hearing occurred in 1997. The life prisoner evaluation report added nothing new from the previous report except to state that Rodericks degree of threat (moderate) was based upon the consumption of alcohol in the instant [commitment] offense. The psychological evaluation, however, reflected a fundamental shift in attitude. In describing the crime Roderick expressed his regret and wished he had handled [the situation] somehow differently. It reports that Roderick is attending Alcoholics Anonymous (AA) and that he is done with drinking forever. Roderick is described as having normal intellectual functioning with good insight and judgment. Although still diagnosed with antisocial personality disorder, it is described as improved. The report concludes that Roderick is showing improvement in his behavior and, if released, should be able to maintain the gains he has made, especially if he continues to abstain from alcohol. According to the report, his level of dangerousness is likely to be less now than for the average inmate.
The Panel again found Roderick to pose an unreasonable risk to the public if released, based upon the following stated reasons: The commitment offense was callous; he had an unstable social history, including a history of predatory offenses; he had failed at previous grants of probation and parole and had prior prison terms; he had not upgraded educationally or vocationally; he had not participated sufficiently in self-help and therapy; and he was diagnosed with an antisocial personality disorder, but hes improved. Commending Roderick for his excellent disciplinary record and for recent gains, the Panel noted the need for additional participation in AA and other self-help and therapy programming, for upgrading his vocational skills or education, and for remaining disciplinary free.
3. 1999
Roderick was given another hearing in 1999. Salient in the life prisoner evaluation report prepared for that hearing is information concerning Rodericks criminal historysome 28 convictions over a period of 28 years, ranging from negligent driving to armed robbery. Roughly half of the convictions relate to Vehicle Code violations, public drunkenness or contempt; the remaining crimes are primarily theft related, including petty and grand theft, forgery, burglary and armed robbery. Rodericks previous violent offenses occurred in 1959 (assault with a deadly weapon), and in 1970 (armed robbery). The report also notes that Roderick had another CDC 115 (work performance/obey orders) which he incurred when first incarcerated in 1986. In other respects the evaluation is, in essence, the same as the previous evaluations and assesses Roderick to be a moderate degree of threat to the public if released. His psychological evaluation, however, reflects steady gains. According to the report, Roderick now understands that at the time of the crime he should not have been drinking, that had he been sober he could have made a better decision, and that the decision he made was irresponsible. The report states that Roderick is very remorseful for causing the victims family grief, as well as for taking this time from his own family. The psychologist concludes, after 14 years of incarceration, and 67 years of age, [I believe this inmate] has developed his maturity to such an extent that he would be an excellent candidate at this time for parole. [] . . . [] . . . If released to the community this inmate poses no more danger than the average citizen.
The Panel again denied parole, listing the following reasons to support its conclusion that Roderick posed an unreasonable risk of danger: The commitment offense was carried out in an especially cruel and callous manner and the motive for the crime was trivial in relation to the offense; Roderick had a record of violence and assaultive behavior and an escalating pattern of criminal conduct, had failed previous grants of probation and parole, and therefore could not be counted upon to avoid criminality; Roderick had failed to develop a marketable skill, failed to upgrade educationally and vocationally, and had not sufficiently participated in beneficial self-help or therapy programs; and Roderick had a serious CDC 115 in 1993 for possession of marijuana. The Panel took note of the psychological evaluation which states that [Rodericks] insight into his commitment offense is minimal [but] goes on to say some very positive things about [Roderick].[4] The Panel commended Roderick for his excellent work evaluations, his participation in AA and in the life skills program. It found, however, that Roderick needs continued therapy in order to face, discuss, understand and cope with stress in a nondestructive manner. The Panel recommended that Roderick remain disciplinary-free, upgrade vocationally and educationally and participate in continued self-help and therapies programs as they become available.
4. 2001
Rodericks next hearing was in 2001. The life prisoner evaluation reportif there was oneis absent from the record. No new psychological report was prepared for this hearing; under a new protocol, the Panel was to rely on the 1999 evaluation. The Panel again declined to set a date for parole on the ground Roderick would pose an unreasonable risk of danger to public safety. This was based upon the following factors: The commitment offense was carried out in an especially cruel manner; Roderick had an extensive prior history of criminality, had served prior prison terms and thus had failed to profit from previous attempts to correct his criminality; Roderick had a problem with alcohol and at some point used marijuana as well; Roderick had not sufficiently participated in beneficial self-help programs; and Rodericks counselor[] believed he would pose a moderate degree of threat to the public if released at this time. The Panel found, again, that Roderick needs continued therapy in order to face, discuss, understand, and cope with stress in a nondestructive manner.
On the other hand, Roderick was commended for increasing his TABE score,[5]for receiving above average and exceptional work reviews, for participating in AA for a number of years now, and for participating in a class on the subject of sexually transmitted diseases. The Panel gave Roderick his first one-year denial (a new hearing in one year instead of two) and recommended that he remain disciplinary freeto come back completely cleanand continue to participate in available self-help, meaning not just AA but anything else that was offered. Significantly, the following exchange then took place: [Roderick]: I wrote a letter to this place over here and they wrote me a letter back saying they had no self-help (indiscernible), self-help (indiscernible) opening right now. [] [Commissioner]: Okay. Well, were just telling you [] [Roderick]: Yeah, I know that. [] [Commissioner]: that if available [] [Roderick]: Im trying to do that. [] [Commissioner]: if anything [] [Roderick]: Right. [] [Commissioner]: comes up. We know that programming is limited. We know that. [] [Roderick]: Okay. [] [Commissioner]: We understand that. Thats why were recommending you continue in AA and anything else thats available to you. [] [Roderick]: Okay.
Additionally, another commissioner made this comment: Mr. Roderick, youre in In my opinion and our opinion, youre on the right track. [] . . . [] And youre to be commended for having turned a number of corners, in our opinion. Continue on that right track.
The Panels decision no longer included the recommendation which had been included in every previous denial that Roderickthen almost 70 years oldupgrade vocationally and educationally.
5. 2002
For the 2002 hearing, the life prisoner evaluation report updated the 1999 report and added a summary of Rodericks work assignments and performance reviews, and of Rodericks therapy and self-help activities. One significant change was that Rodericks threat assessment was reduced to a moderate to minimal degree of risk to the community if released. Pursuant to the new protocol, no new psychological evaluation was prepared for this hearing.
Although Roderick was not given a release date, the Panel again commended him for his progress. In denying parole, the Panel relied on essentially the same reasons as those given for his 2001 denial, and stated, again, that he needed continued self-help and/or therapy programming in order to face, discuss, understand and cope . . . with stress in a non-destructive manner. On a positive note, the Panel observed that the most recent psychological evaluation (from 1999) stated that Roderick was no more a danger than the average citizen, that Rodericks parole plans included offers of both a job and a home, that Roderick had no 115s since 1993, that Roderick had satisfactory to above-average work reports, and that Roderick had participated in AA, in Project CHANGE, in life skills, and in a class on sexually transmitted diseases. Next year, one commissioner stated, we recommend, Mr. Roderick, that you remain disciplinary-free, that you continue to participate in any self-help and/or therapy programming that might become available to you, and that you cooperate with clinicians in the completion of a new clinical evaluation. When you come [back] to [the] Board, your psych[ological] eval[uation] will be four years old and we dont want that to be held against you at the next Board appearance so we ask for a new psych eval to be completed. I dont think there will be any problems there. We just want to make sure that you have a fresh one on file. . . . [] . . . [] I want to wish you good luck. Youve done some pretty good time here. Im a little disappointed that you hadnt completed a vocation in this term or your prior terms, but youre to the age now where youre probably not going to really need to use that on the outside and probably would just be taking up space for somebody that would really need to learn a vocational skill. But just continue mainly in self-help areas and continue your positive programming. And I think that youre coming around the corner, moving in the right direction. And youve got some more time to do.
6. 2003
The record contains no transcript of the Panels decision in 2003. The record does, however, contain a psychological evaluation for the November 2003 Lifer Calendar. The evaluation reports that Roderick freely admitted to a former problem with alcohol and has dealt with this issue through membership and attendance at Alcoholics Anonymous meetings. The report goes on to state that Roderick spoke openly about the circumstances of the instant offense, and his comments reflect a new sense of insight into his incarceration. According to the report, Roderick is fully remorseful, and aware of the effect of his actions on the victims family. The report agrees with the 1999 assessment that Roderick would pose no more danger than the average citizen and concludes that he has an extremely low probability of recidivism.
There is also a life prisoner evaluation report for the November 2003 Calendar. In that report, Rodericks threat assessment was reduced again, as the report concluded Roderick would pose a minimal degree of risk to the community if released on parole at this time.
Apparently, a hearing was held in December of 2003, because in the life prisoner evaluation report prepared for the December 2004 calendar the following was noted: On 12/18/03 Roderick attended Subsequent parole consideration hearing #6, [Board] denied parole for 1 year and made the following recommendations: (1) Remain disciplinary-free, (2) Participate in self-help programs and requested a new psychological evaluation.
7. 2005
The next hearingresulting in the parole denial we review herewas held in May 2005. As requested by the Panel, an updated psychological evaluation was prepared in April 2005. Primarily, it states there is no new information to add to the 1999 report. The psychologist does note that Roderick attended all of the self help groups available in the prison such as Anger Management and Alcoholics Anonymous, and that his release plans provide a supportive environment, [in which] inmate Rodericks prognosis for success is excellent. There are no diagnosed mental or personality disorders, and Roderick is assigned a GAF rating of 90 to 95.[6]The report states that [i]f released to the community inmate Roderick poses no more danger than the average citizen. [] . . . The only significant risk factor to violence would be inmate Roderick[s] using alcohol or drugs (which he stopped in 1991). He will be living in a very supportive benevolent environment and he is thoroughly convinced of alcohols terrible effects. It is very unlikely he would be violent. The report concludes, [g]iven everything inmate Roderick has learned, his age [73 years] and the fact that he has experienced a slowing down during the last year, due to aging, he would make an excellent candidate for parole.
A life prisoner evaluation report was prepared for the December 2004 Calendar, and we assume it was used for the May 2005 hearing. The report does not differ materially from the 2003 report (assessing Roderick as posing a minimal risk of reoffending), and states that the Panel had denied parole for one year in December 2003, that the Panel recommended Roderick remain disciplinary free and continue to participate in self-help programs, and that, in fact, Roderick remained disciplinary free and continued to participate in AA.
At the hearing, the Panel reviewed the circumstances of the commitment crime, relying on the probation report which summarized police reports. Roderick gave his account of the incident. Although the two accounts differed with respect to who initiated the physical fight, it is uncontradicted that the victim Obie began harassing Roderick inside the saloon, that it was Obie who pulled the knife during the fight outside the bar, that Roderick was drunk when the crime took place, and that Roderick was unaware he had inflicted a fatal wound at the time it occurred. Under questioning by Rodericks attorney, it was brought out that the victim was a larger and much younger man than Roderick.[7]
The Panel then reviewed Rodericks extensive criminal record and asked him about it. Roderick acknowledged it, and stated he had no excuse for it. The Panel also reviewed his family history: that his parents had been divorced before he was born, that Roderick was raised by his grandmother, that he did not see his mother until he was 16, that he did not have a relationship with his father, that he completed school through the 11th grade, that he was married for 20 years, that he has two daughters, that he is still close to his ex-wife, that he is in close contact with his daughters, that he has nine grandchildren and a great-grandchild on the way, and that prior to this incarceration he worked mostly as a high climber.[8]When asked why, given that he had a family and a job, he had engaged in criminal behavior, he responded: Stupid is all I can tell you. When a Panel member commented that Roderick just [did]nt seem to know why [he was] doing it, Roderick admitted, It dont make sense, Ill agree with you, but he admitted that he was drinking too much during that time and was an alcoholic. Roderick denied any drug habit.
The Panel then reviewed Rodericks parole plans. If released, Roderick would live with his daughter and son-in-law in Eureka. He would work with his son-in-law, who was a contract logger, and would also be receiving $850 per month income from Social Security. These plans were supported by a letter from Rodericks daughter describing where he would live and the loving environment the family would provide. Roderick also planned to attend AA meetings in Eureka.
The Panel also reviewed matters relating to Rodericks incarceration, noting a custody level of Medium A.[9]The Panel recited that, as of August 2004, Roderick was assigned to the yard crew and had received an exceptional performance rating. Further, [t]here was no psychiatric treatment and no negative discipline.
The Panel then asked what Roderick had been doing since August 2004. Roderick explained he had been reassigned from the yard crew to the canteen, but complained the inmates had been locked up all the time over there and had only been out a few days this year. He stated he had attended AA every time they got a chance to go but that he had gone only about four times because [w]ere locked up all the time over there. Roderick stated he had been in AA for 12 years. When asked what the eighth and ninth steps of the 12 steps were, Roderick had difficulty responding, explaining that he was nervous. When prompted that it deals with making amends Roderick responded, Yeah, making amends. Wait a minute. Ill tell you in a second here. Im a little bit nervous. I cant think. Ill tell you in just a minute. I know them all. When asked what he had done to make amends he stated that his daughter had written a letter to the victims family, and that he [Roderick] had spoken with the victims sister, who was in jail when Roderick was there, and she didnt say much about it. She just said she knew how [Obie] was. Thats all she had to say. When asked to recite the fourth step Roderick responded, Continue to take personal inventory, where wrong promptly admit it. When asked if Roderick had taken a moral inventory of himself, he replied, Ive been in 20 years. Ive been thinking about this everyday, you know. And I just wish it didnt have [sic] happened and sorry that it happened. I cant change what happened but I can change myself.
Rodericks lack of vocational training was also discussed. Roderick explained that he had not acquired a vocation in prison due to his age. A lot of places if youre over 50 they dont want to get you to class get into a place. Then at 60, they wont. They dont want a guy taking a trade [at] that age. The commissioners remarked on the various jobs Roderick had undertaken in prison, commented on the fact that he had not gotten his GED (high school general equivalency diploma), and noted that he nevertheless scored 12.9 on the TABE.[10]When asked how he had achieved such a high score Roderick explained he didnt know but he read[s] all the time.
The Panel asked Roderick what he had learned in the Project CHANGE program in 2003. He responded that he learned he had a drinking problem (and stated he knew that already) and he learned that if you do something you should be accountable for what you do[, a]nd treat other people how youd like to be treated yourself. Beyond this explanation Roderick had difficulty articulating lessons learned from the program, but stated he took all the tests. It was also noted that Roderick had taken a class on sexually transmitted diseases.
Rodericks disciplinary actions in prison were reviewed; it was noted there had been none since 1993. When asked why he had not participated in more self-help groups he replied that [t]hey dont have nothing over there, that [w]ere locked up all the time, that he did participate in anger management, and that he did not get involved in other programs before Project CHANGE because he was getting up at two in the morning working the kitchen and . . . go[ing back] to sleep in the afternoon. So, Id get up at two in the morning. Im tired, I cant go nowheres. I had that job for seven years.
When asked if he posed a threat to the public, Roderick replied he was no threat to nobody. The Panel then asked what makes you a different man today than the man that came into prison, and Roderick responded: Well, Ive been in 20 years and I want to live . . . the rest of my life I can outside. And Im not going to do nothing to jeopardize that. [] . . . [] . . . I got grandkids. Ive never been around them, never did see them. And I havent seen my kids either. [] . . . [] Im a different guy. Im a different guy than I was 20 years ago. I can tell you that. [] . . . [] Ive been thinking about all this for 20 years for one thing. All that Ive done and Im not proud of myself.
The Panel then reviewed the very favorable 2005 psychological evaluation, including the conclusion that Roderick does not present a threat to society any more than the average citizen. Additionally, the Panel quoted from the 2003 evaluation, including the observation that Rodericks comments reflect a new sense of insight into his incarceration, that he is fully remorseful and aware of the effect of his actions on the victims family, and that due to his advanced age and low risk factors he is appropriate for release consideration.
One of the Panel members then asked Roderick what it was, apart from the fact he had this family out there, that would make the commissioner feel comfortable that if released he would not commit another crime. Roderick responded that he is not into committing more crimes. Thats all in the past for me. Then my age. Im going up to my daughters place. Its out of town. . . . The Police Department and The District Attorneys Office wouldnt even know Im in the county, as a matter of fact. And Im not going to live forever. And I want to enjoy my grandkids if I can. And Im not going to do anything to make them think worse of me than what Ive already done to them.
Then came what appeared to be a critical exchange: [Commissioner]: . . . [Another] Commissioner asked you questions at the beginning of the hearing and repeatedly [sic] your exact words were, stupid is all I can tell you. Well, thats not good enough. [] . . . [] Thats not good enough because the issue is whether or not we can give you the keys to the door and release you into the community. If you dont know the answer to the question, how in the world can we let you out because you might do the same thing all over again. So, the answers to the questions are extremely important. And you sit[] there telling us repeatedly [sic], stupid is all I can tell you. [] [Roderick]: Well, I just cant believe that someone would think a guy my age would go out there and do them crimes that Id done 30 years ago. [] [Commissioner]: Older people kill people all the time. [] [Roderick]: It might [have] happened. But I can say that I cant believe that someone could think that a guy my age would go out there and commit them crimes Id done there 30 years ago, 40 years ago. . . . [] [Commissioner]: Have you given any real thought to that type of question? [] [Roderick]: Well, I thought a lot Ive been thinking about it for 20 years. And I can say, I cant imagine somebody thinking that a guy my age would go out and do something like I did there 30, 40 years ago. [] [Commissioner]: Do you see how important the issue I presented you with earlier of how weak youve been in getting involved in self-help and group programs because you know what, if youd partook in those programs in the past, you might be able to answer those questions today. But you were sleeping because you were tired from working. [] [Roderick]: If I was sleeping, what? [] [Commissioner]: You were tired from working and you were sleeping when you could have been going to those programs. [] [Roderick]: Well, I dont know what to tell you other than Im not into doing crimes some more. . . . [] [Commissioner]: Okay. [] [Roderick]: Im not going out there These things 30 and 40 years ago, I cant change it and Im not going to be doing it again. I cant imagine that youd think I would go out there and do that again. [] [Commissioner]: Thank you, sir, Ill return to the Chair.[11]
The assistant district attorney was then permitted to speak. He argued that Roderick had no real remorse, that he still [did] not understand that his killing of Michael Obie was wrong, and that his rendition of the events was inconsistent with the injuries, the witnesses statements and the jurys verdict. He argued that Roderick had a long criminal history and that his release would pose an unreasonable risk of danger to the community.
Defense counsel argued in favor of Rodericks release, citing the positive Board report,[12]Rodericks completion of various self-help programs, his consistent attendance at AA meetings, his lack of any recent CDC 115s, his supportive psychological evaluations over the last several years (concluding that Roderick is appropriate for release and that the prognosis for community living is excellent), his GAF rating of between 90 and 95, and his anticipated stable income and solid residential plans. She went on to make this point: Perhaps it is that Mr. Roderick does not articulate his feel[ing]s and thoughts fully under the stress of the hearing. But it is important to know that he does consistently receive above-average work reports and even excellent ones.[[13]] And so, this is a man who shows up every day, doesnt get into trouble, and even with the limited self-help programming that is formal, he has managed to avoid problems in a big way since hes been in prison.
After a recess, the Panel returned and announced its decision. The Panel denied Rodericks request for parole, finding that he would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The Panel based its decision, first, on the commitment offense and, specifically, on the fact that once Obie started harassing Roderick there are a lot of other choices [Roderick] could have made . . . . [He] could have just left. [He] could have just gone home. [He] could have called the police. But that wasnt the choice that [he] made. Next, the Panel cited Rodericks extensive criminal history from 1952 to 1980, and his failure to profit from societys previous attempts to correct his criminality. Those attempts included county jail, a prior prison term, and probation. Third, the Panel relied upon Rodericks unstable social history [which] is certainly related to that criminal history but also to the abuse of alcohol. The Panel also stated that Roderick had programmed in a very limited manner, that he had failed to upgrade either vocationally or educationally, and that he had not yet sufficiently participated in beneficial self-help.
On the positive side, the Panel remarked upon the fact that Roderick had only one 128(a) counseling Chrono and that was back in 1991, that he had only three serious CDC 115s, the last one in 1993, that the psychological evaluation was largely favorable and supportive, and that he had good parole plans with a lot of family support and an opportunity for work.
Ultimately, however, the Panel found, again, that the prisoner needs to participate in self-help in order to understand and cope with stress in a non-destructive manner,[14]and concluded that, [i]n view of the prisoners history and his lack of program participation theres no indication that he would behave differently if paroled.
In closing the Panel stated: Mr. Roderick, we simply recommend that you continue to remain disciplinary-free. You really need to do some self-help, sir. And if youre not going to do it in a program through the institution, then you can do it on your own by reading some books. But you cant expect us to feel comfortable sending you back out with law-abiding citizens with your history and this crime if you dont know why you led the life you did.
C. Petition for Writ of Habeas Corpus
On July 29, 2005, Roderick filed a petition for writ of habeas corpus requesting that the superior court reverse the Panels decision. On October 28, 2005, the trial court held an evidentiary hearing in which Roderick was examined regarding his participation in various programs while in prison.
Roderick explained that he was frequently unable to attend AA meetings because he would finish dinner after 8:00 p.m., after which time no inmates were allowed to leave their cells. Otherwise, he attended all AA meetings available. He also briefly described the life skills and Project CHANGE programs.
On November 3, 2005, the superior court issued a ruling granting Rodericks petition, finding that the factors relied upon by the Panel in denying parole were not supported by some evidence in the record.
The Attorney General then filed a motion for reconsideration, arguing that the court should vacate its November 3, 2005, ruling since the court failed to serve the warden and the Board with the order to show cause. The court granted this motion, the Attorney General filed a return to the writ, and Roderick filed a traverse. On March 21, 2006, the superior court entered an order reaffirming the November 3, 2005, ruling granting Rodericks petition for writ of habeas corpus. The Attorney General timely filed this appeal.[15]
II. DISCUSSION
A. Statutory and Regulatory Scheme
The Boards parole decisions are governed by Penal Code section 3041 and Board regulations (Cal. Code Regs., tit. 15,[16] 2230 et seq.). Pursuant to statute, the Board shall normally set a parole release date one year prior to the inmates 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 . . . . (Pen. Code, 3041 subd. (a).) Subdivision (b) of Penal Code section 3041 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, and that a parole date, therefore, cannot be fixed at this meeting. Accordingly, parole applicants in this state have an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation. (In re Rosenkrantz, supra, 29 Cal.4th at p. 654; see also In re Smith (2003) 114 Cal.App.4th 343, 366 (Smith) [parole is the rule, rather than the exception].)
Section 2402 sets forth various factors to be considered by the Board to carry out the mandates of the statute. These regulations are designed to guide the Boards 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. ( 2402, subd. (a).)[17] This regulation also lists several circumstances tending to show unsuitability[18]and suitability[19]for parole.
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[1]We will refer to Rodericks panel of hearing officers as the Panel and the Board of Parole Hearings (formerly the Board of Prison Terms (see Gov. Code, 12838.4; Pen. Code, 5075)) as the Board.
[2]Roderick has consistently maintained that it was Obie who started the fight as they left the bar.
[3]A CDC 115 refers to a rules violation report which documents misconduct that is believed to be a violation of law or [that] is not minor in nature. (Cal. Code Regs., tit. 15, 3312, subd. (a)(3).)
[4]The psychological evaluation does state that Rodericks insight into the commitment offense is minimal; this statement is qualified, however, by the additional assessment that his place of development within the structure of the offense is appropriate. The psychological evaluation then goes on to describe Rodericks understanding that his drinking is part of the problem, and that his behavior was irresponsible. Additionally, he is no longer diagnosed as having a personality disorder.
[5]The TABE (tests of adult basic education) score reflects an inmates educational achievement level. (Frequently Asked Questions about TABE Tests of Adult Basic Education (2000) p. 2
[6]GAF refers to global assessment of functioning. This is a clinicians judgment of the individuals overall level of functioning and ability to carry out activities of daily living, and is useful in planning treatment and in predicting outcomes. The GAF scale is a 100-point scale that measures a subjects overall level of psychological, social, and occupational functioning on a hypothetical continuum. A score of 91-100 means Superior functioning in a wide range of activities, lifes problems never seem to get out of hand, is sought out by others because of his or her many positive qualities. No symptoms. (
[7]The dissent states Roderick inflicted multiple knife wounds, implying Roderick stabbed the victim multiple times. (Dis. opn., post, at pp. 16, 20.) The record, however, indicates that the victim, when found, was bleeding from chest wounds which is consistent with Rodericks statement that in the course of the altercation he cut the victim on the chest, and later stabbed him.
[8]Roderick worked in the logging industry, specializing in topping redwoods.
[9]This is the least restrictive level of custody for a life-term prisoner. (Cal. Code Regs., tit. 15, 3377.2, subds. (a)(16), (b)(3)(C).)
[10]The TABE score is expressed in a number reflecting grade level. (TABE FAQs, supra, p. 2; see maj. opn., ante, p. 6, fn. 5.) Thus, Roderick tested above the 12th grade level.
[11]The chair thereafter noted for the record that Rodericks commitment crime had not occurred 30 or 40 years ago but only 20 years earlier.
[12]This appears to make reference to the positive December 2004 life prisoner evaluation report, discussed above.
[13]In fact, Roderick received above average or exceptional ratings for his work during the following periods: March 1987, December 1990, April 1991 to April 1992, December 1992, May 1993, May 1994 through July 2000, December 2000, February 2001 to October 2001, and August 2003 to August 2004.
[14]This stock phrase was used to deny parole to Roderick four times. Apparently it is also used generically across the state. (See, e.g., In re Dannenberg (2005) 34 Cal.4th 1061, 1074-1075 (Dannenberg); In re Rosenkrantz (2002) 29 Cal.4th 616, 633 (Rosenkrantz); In re Barker (2007) 151 Cal.App.4th 346, 360 (Barker); In re Weider (2006) 145 Cal.App.4th 570, 582; In re Burns (2006) 136 Cal.App.4th 1318, 1324; In re DeLuna (2005) 126 Cal.App.4th 585, 596 (DeLuna); In re Scott (2004) 119 Cal.App.4th 871, 883 (Scott I); In re Morrall (2002) 102 Cal.App.4th 280, 303; In re Ramirez (2001) 94 Cal.App.4th 549, 558, disapproved on another ground in Dannenberg, supra, 34 Cal.4th at pp. 1084-1085, 1100; Biggs v. Terhune (9th Cir. 2003) 334 F.3d 910, 913 (Biggs).) A Westlaw search turned up an additional 25 unpublished Federal District Court cases in which this reason was applied to deny parole.
[15]Shortly after the trial courts decision was issued Roderick had his eighth parole hearing; parole was again denied. We grant petitioners request for judicial notice of the transcript of that hearing.
[16]Unless otherwise indicated, section references are to title 15 of the California Code of Regulations.
[17]These factors include the circumstances of the prisoners 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 prisoners 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. ( 2402, subd. (b).)
[18]Unsuitability factors are: (1) a commitment offense done in an especially heinous, atrocious or cruel manner; (2) a [p]revious [r]ecord of [v]iolence; (3) a history of unstable or tumultuous relationships with others; (4) [s]adistic [s]exual [o]ffenses; (5) a lengthy history of severe mental problems related to the offense; and (6) [t]he prisoner has engaged in serious misconduct in prison or jail. ( 2402, subd. (c)(1)-(6).) This subdivision further provides that the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel. ( 2402, subd. (c).)
[19]Suitability factors are: (1) the absence of a juvenile record; (2) reasonably stable relationships with others; (3) signs of remorse; (4) a crime committed as the result of significant stress in [the prisoners] life; (5) battered woman syndrome; (6) the lack of any significant history of violent crime; (7) [t]he prisoners present age reduces the probability of recidivism; (8) [t]he prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release; and (9) the prisoners [i]nstitutional activities indicate an enhanced ability to function within the law upon release. ( 2402, subd. (d)(1)-(9).)
