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) |
Story continued from Part I
B. Standard of Review
In Rosenkrantz, our Supreme Court set forth the appropriate standard of review. [T]he judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law, but in conducting such a review, the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation. If the decisions consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoners petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law. (Rosenkrantz, supra, 29 Cal.4th at p. 658.)
This standard does not require a review of the entire record, but only requires such review as is necessary to determine whether there is any evidence in the record supporting the denial. (In re Van Houten (2004) 116 Cal.App.4th 339, 347-348.) Once there is some evidence to support the section 2402 factors relied upon by the Board, the precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the [Board] . . . . It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole. (Rosenkrantz, supra, 29 Cal.4th at p. 677.) However, the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary and capricious. (Ibid.) Thus, it is not enough that there is some evidence to support the factors cited for denial; that evidence must also rationally support the core determination required by the statute before parole can be denied, i.e., that a prisoners release will unreasonably endanger public safety. (In re Lee (2006) 143 Cal.App.4th 1400, 1408 (Lee); In re Scott (2005) 133 Cal.App.4th 573, 595 (Scott II).) Some evidence of the existence of a particular factor does not necessarily equate to some evidence the parolees release unreasonably endangers public safety. (Lee, supra, 143 Cal.App.4th at p. 1408.)
The dissent rejects the standard articulated in Lee and applied in In re Elkins (2006) 144 Cal.App.4th 475, 502, In re Tripp (2007) 150 Cal.App.4th 306, 313, and Barker, supra, 151 Cal.App.4th at page 366. The dissents proposed standard of review would require judicial affirmance of every Board decision if even a single unsuitability factor is found, regardless of whether that factor would rationally support a conclusion, based on individualized consideration, that the inmate would pose an unreasonable risk of danger. (Dis. opn., post, at pp. 43-44.) If this were the standard, the courts would indeed be relegated to the status of potted plants. (Scott I, supra, 119 Cal.App.4th at p. 898.)
The only ground for a parole denial is found in Penal Code section 3401, subdivision (b), which provides that a release date shall be set unless [the Board] determines that . . . consideration of the public safety requires a more lengthy period of incarceration. Interpreting that standard, our high court has required that the Boards decisions not be arbitrary or capricious (Rosenkrantz, supra, 29 Cal.4th at p. 677), and that the Boards decisions be made on relevant grounds and supported by the evidence (Dannenberg, supra, 34 Cal.4th at p. 1071, italics added). We read those directives as mandating that the Board, in its decisions, must articulate reasons that are grounded in evidence and rationally related to the statutory basis for denial. The dissents proposed standard, we think, goes beyond even the deferential some evidence standard and would annul any meaningful judicial review. Were we required to engage in the kind of prodigious efforts undertaken by our dissenting colleague to shore up the Boards decisions denying parole, affirmance would be guaranteed in every case.
B. Factors Relied upon by the Panel in Denying Roderick Parole
1. Rodericks Commitment Offense
Section 2402, subdivision (c)(1) provides that a commitment offense carried out in an especially heinous, atrocious or cruel manner tends to indicate unsuitability for parole. In determining whether the offense was committed in such a manner, the Board should consider whether (A) Multiple victims were attacked, injured or killed in the same or separate incidents. [] (B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder. [] (C) The victim was abused, defiled or mutilated during or after the offense. [] (D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. [] (E) The motive for the crime is inexplicable or very trivial in relation to the offense. (Ibid.)
While the Panel relied upon the commitment offense in denying parole, it failed to cite any of the factors under section 2402, subdivision (c)(1) in its decision. The Panel simply stated its conclusion that Roderick was not yet suitable for parole and that the information that we considered certainly included the commitment offense. Although the Panel then recited the facts of the offense, it made no findings on any of the factors identified in its regulations for determining whether a defendant committed his offense in an especially heinous, atrocious or cruel manner. ( 2402, subd. (c)(1).) The trial court, thus, found that there was no basis for the Panels ostensible finding that the offense was particularly egregious. No basis [was] set forth. This court was the trial court, and is very familiar with the case. No evidence was presented at trial, and none has been set forth in the transcript before the [Panel], to make the finding.[1]
The Attorney General nonetheless argues that the offense met the section 2402 subdivision (c)(1) standard because the record supports a finding that the motive for the murder was trivial. The dissent likewise gives an assist to the Panel by implying findings concerning the commitment offense not articulated in its decision. (Dis. opn., post, at pp. 9-11, 20.) Given the extraordinarily deferential standard of review we already apply to the Boards decisions, it would be inappropriate for courts to salvage the Boards inadequate findings by inferring factors that might have been relied upon. At minimum, the Board is responsible for articulating the grounds for its findings and for citing to evidence supporting those grounds. [T]he Board must apply detailed standards when evaluating whether an individual inmate is unsuitable for parole on public safety grounds. [Citations.] When the Board bases unsuitability on the circumstances of the commitment offense, it must cite some evidence of aggravating factors beyond the minimum elements of that offense. [Citation]. (Dannenberg, supra, 34 Cal.4th at p. 1095, fn. 16.) Accordingly, [w]e must confine our review to the stated factors found by the Board, and all the evidence presented at the parole hearing which is relevant to those findings, not to findings that the Attorney General . . . suggests the Board might have made. (DeLuna, supra, 126 Cal.App.4th at pp. 593-594.)
But even if the Panel had determined that the crime was particularly egregious because the motive for the murder was very trivial in relation to the offense ( 2402, subd. (c)(1)(E)), the evidence would not support such a finding.
Here, the facts contained in the record reflect that the victim began harassing Roderick in a saloon. Roderick was intoxicated and started a physical fight, punching the victim twice. In the course of the altercation, the victim pulled a hunting knife, and Roderick wrestled it away and stabbed him. There is evidence that the victim had also been drinking, and that Roderick did not realize he had effected a mortal wound. Without trivializing this tragic loss of life, the scenario appears to be nothing more than a drunken midnight brawl outside of a saloon that escalatedwith the appearance of a knifeto mortal combat. The motive for the killing was not inexplicable or trivial in its context. As in Scott I, supra, 119 Cal.App.4th at page 894, in this case there is no evidence to support a finding that the motive for the murder was less significant than in other second degree murder cases.
The dissent takes issue with Scott Is comparative analysis approach to determining the relative triviality of motive in second degree homicide cases, and agrees with the Scott I dissent that motive must merely be tested against the crime to determine its triviality. (Dis. opn., post, at pp. 11-13.) Under this view, fewif anymotives would not be trivial relative to the kind of findings that are required to convict on first or second degree murder. (Barker, supra, 151 Cal.App.4th at p. 374 [[g]iven the high value our society places upon life, there is no motive for unlawfully taking the life of another human being that could not reasonably be deemed trivial ].) But we need not resolve this issue because Scott I is not central to, nor even necessary to, our conclusion that the killing here was not particularly egregious. The core test for determining whether a crime is carried out in a particularly heinous, atrocious or cruel manner is whether the crime involves actions that are more aggravated or violent than the minimum necessary to sustain a conviction for that offense. (Rosenkrantz, supra, 29 Cal.4th at p. 683.) We cannot conclude, and the Panel has not stated, that this crime involves actions more aggravated or violent than the minimum necessary to sustain a conviction for second degree murder.
The Attorney General also contends that Rodericks failure to avoid the murder when he had the opportunity to do so would support a finding under section 2402 subdivision (c)(1) that the crime was particularly egregious. In its decision, the Panel stated [a]nd there are a lot of other choices that you could have made, Mr. Roderick. You could have just left. You could have just gone home. You could have called the police. But that wasnt the choice that you made.
That a prisoner could have avoided his or her commitment offense is not one of the section 2402 subdivision (c)(1) factors to be considered by the Board in determining whether the offense was committed in an especially heinous, atrocious or cruel manner. (See Rosenkrantz, supra, 29 Cal.4th at p. 658 [the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation].) We observe, however, that in Smith the court upheld the Governors determination that the defendants murder of his wife was aggravated based on a constellation of factors that included use of a gun; vulnerability of the victim; planning, sophistication and professionalism; premeditation; a special relationship of trust with the victim; and an ongoing pattern of physical and mental abuse; as well as the fact that the defendant had an opportunity to stop his crime but instead continued. (Smith, supra, 114 Cal.App.4th at pp. 349, 368.) In our view, Smith is not useful precedent.
To begin with, we are not convinced that, as a general principle, a lost opportunity to stop a crime would ever tend to prove the heinousness, cruelty or atrociousness of a crime. The mere fact that there are a lot of other choices a person could have madeas distinguished, for example, from evidence of premeditation or stalking (see, e.g., Rosenkrantz, supra, 29 Cal.4th at p. 678; DeLuna, supra, 126 Cal.App.4th at p. 593)does not rationally support a finding that a crime was committed in an especially heinous, atrocious or cruel manner. To state that a defendant could have just left or could have just gone home says nothing more than the defendant could have chosen not to pick the fight or mortally wound his victim; these facts do not describe the manner in which the murder was committed. But even if they did, Smith held only that continuing with a crime after having an opportunity to stop taken together with the other enumerated factors, constituted evidence to support a finding that the offense was aggravated. (Smith, supra, 114 Cal.App.4th at p. 368.) Here, no other similar circumstances exist.
In sum, there is no evidence that Rodericks commitment offense was carried out in an especially heinous, atrocious or cruel manner as set forth in section 2402 subdivision (c)(1).
2. Rodericks Social History
Under section 2402 subdivision (b), the Board is directed to consider the circumstances of the prisoners social history in determining his or her suitability for parole. An [u]nstable [s]ocial [h]istory, which is defined as a history of unstable or tumultuous relationships with others, is one circumstance tending to show unsuitability. ( 2402, subd. (c)(3).) In its decision, the Panels only reference to social history is a generalized statement that Rodericks unstable social history is certainly related to [his] criminal history but also to the abuse of alcohol. But the Panel cited no facts or circumstances to support its premise that Roderick had an unstable social history (as distinguished from his criminal history) and we see no evidence that would bear it out.
The Attorney General cites as some evidence of Rodericks unstable social history the facts that Roderick (1) was raised by his paternal grandmother and dropped out of school after the 11th grade; (2) had no contact with his estranged mother until he was 16, even though she lived within 40 miles of him; and (3) continued to engage in criminal activity during his 20-year marriage. The dissent also cites the first two enumerated factors as some evidence of an unstable social history. (Dis. opn., post, at p. 20.) We cannot agree that these factors constitute an [u]nstable [s]ocial [h]istory, nor do they provide any evidence of unstable or tumultuous relationships with others.
The record shows an absence of any relationship with his natural parents, not any unstable or tumultuous relationships. That he was raised by his grandmother and failed to complete his final year of high school is also not evidence of a history of problematic relationships or instability. Indeed, it was during this period that Roderick seems to have had his most stable social history, because his chronic criminal behavior did not commence until he turned 20.[2]
With respect to his adult years, Rodericks history shows a long term marriage, producing two children with whom he has a good relationship. While Roderick committed crimes and experienced problems with alcohol during his marriage, there is no evidence that this affected his relationship with either his wife or his children.[3] (See DeLuna, supra, 126 Cal.App.4th at p. 595 [finding no evidence that the prisoners alcohol problem contributed to unstable relationships].) To the contrary, Rodericks 1999 psychological evaluation indicates that he has maintained stable relationships with his family. Letters in [Rodericks] Central file from his ex-wife express[] an interest in his coming to live with her upon parole so this inmate still has a very good relationship with his family. Roderick also stays in close touch with his two daughters; at the hearing he readily indicated the age range of his nine grandchildren, and volunteered the fact that his oldest granddaughter was about to have a baby. Even the Panel noted that Roderick has a lot of family support and that his daughters letter was very supportive in offering a home and also an opportunity for work.
Additionally, there is no evidence to support a finding that Roderick had difficult relationships with other prisoners and prison staff. The record supports a contrary conclusion. Dr. Hewchuk noted that Roderick has continued to be a model prisoner . . . [and] has maintained full institutional compliance. And Dr. Steward reported that Roderick has had a near exceptional record given the number of years in prison. He has only been found guilty of [3 CDC 115s], has attended numerous self help programs and takes his problem with drinking seriously. Rodericks work reports were, for the most part, above average or exceptional. There were no unsatisfactory ratings, and he has received only one negative counseling Chrono.[4]
The dissent points to Rodericks alcohol abuse and criminal history as some evidence of an unstable social history. (Dis. opn., post, at pp. 20-22.) We read the regulations as distinguishing between criminal history and social history ( 2402, subd. (b)) with the latter being defined in terms of social relationships ( 2402, subd. (c)(3)) as distinguished from criminal activity. The two factors are thus distinct and should not be conflated. Similarly, while there is ample evidence that Rodericks alcoholism contributed to his criminal activities, there is no evidence that it resulted in any unstable or tumultuous relationships or to any [u]nstable [s]ocial [h]istory apart from his criminal history. (See DeLuna, supra, 126 Cal.App.4th at p. 595.) Nor is there any evidence that Roderick is at risk of returning to alcohol abuse if he were released, after more than 20 years of sobriety and more than 12 years of active participation in AA. (See Smith, supra, 114 Cal.App.4th at p. 372, [if defendants past use of drugs established his unsuitability for parole, then the [Board] could deny parole for the rest of [the defendants] life based on this immutable factor, without regard to or consideration of subsequent circumstances and evidence indicating that he has no current desire for drugs and that there is little current likelihood of drug relapse . . .].)[5]
In sum, we see no evidence in the record upon which the Panel could have relied in finding that Roderick has an unstable social history or problematic, tumultuous relationships pursuant to section 2402, subdivision (c)(3). On the contrary, the evidence indicates that Roderick has actually experienced reasonably stable relationships with others, a factor tending to show suitability for parole. ( 2402, subd. (d)(2).)
3. Rodericks Past and Present Attitude Toward His Commitment Offense
Under section 2402, subdivision (b), the Board must consider the prisoners past and present attitude toward the [commitment] crime in determining suitability for parole. In denying parole, the Panel stated that Roderick needs to participate in self-help . . . in order to understand the underlying factors that led not only to this commitment offense, but also to his entire criminal history, and also to develop insight into the impact of his criminal behavior and in particular, the impact of this crime where a man lost his life. According to the Attorney General, the Panel relied on Rodericks testimony at the hearing in making its finding on this factor, including his reply [s]tupid is all I can tell you when asked for an explanation of his extensive criminal history.
We see no evidence to support a conclusion that Roderick lacked insight into the impact of his criminal behavior or his commitment crime. In Rodericks 2003 evaluation, Dr. Hewchuk stated that Roderick talked openly about the circumstances of the instant offense, and his comments reflect a new sense of insight into his incarceration. He is fully remorseful, and aware of the effect of his actions on the victims family. In 1999, Dr. Carswell stated that [t]his inmate is very remorseful for causing the victims family grief, and he is as sorry for taking this time away from his own family. While in the early stages of his incarceration Roderick denied any criminal act and insisted the stabbing was in self-defense, over the years, after participating in AA and other programs, he was able to acknowledge his responsibility and express his regret and then remorse for his actions. We can find no evidence that Roderick currently does not understand the impact of his crime.
The dissent concludes Rodericks attitude toward the crime was poor, characterizing Rodericks statement regarding his role in the crime as merely a passive or defensive one (the victim was fatally injured during a struggle over the knife). (Dis. opn., post, at p. 25.) In fact, Roderick admitted at the hearing that he intentionally stabbed Obie; he stated that he thought about stabbing him in the leg or the butt, but decided against it and, instead, stabbed him in the chest. He asserted no claim of self-defense in describing the crime. This is in contrast to Rodericks early claims, in 1989, 1992 and 1994, that the killing was in self-defense and that he had been railroaded. Since that time, however, and over the course of his incarceration, as has been discussed, Roderick came to accept responsibility and express remorse for the crime.
The Attorney General and the dissent cite the district attorneys argument that Roderick had shown no remorse and his argument that Roderick believed the murder was the right thing to do. (Dis. opn., post, at p. 25.) But the record does not support the district attorneys arguments and the Attorney General cites no evidence in corroboration.[6]
Expanding upon the section 2402, subdivision (b) factors, the Panel also questioned Roderick concerning why he led a life of crime. Roderick acknowledged his extensive criminal record, admitted he had no excuse for it, seemed to appreciate its connection to his alcoholism, and described his criminal behavior as [s]tupid. The Panel felt this was insufficient to demonstrate that he understood the underlying factors that led not only to [his] commitment offense, but also to his entire criminal history and concluded, 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. That the Panel members were dissatisfied with Rodericks responses was manifest. The question before us, however, is whether it is arbitrary and capricious for the Panel to rely on those responses to support a denial of parole.
Certainly, Rodericks responses were unsophisticated and lacked analytical depth. But is his inability to articulate a more insightful explanation as to why he committed multiple crimes some evidence that Roderick poses a danger to public safety? The record does not support that conclusion.[7] The evidence does show that Roderick has a limited capacity either to understand or to explain the mechanisms that led to his criminality. But this limitation is a known quantity and has been factored into his risk assessment. Rodericks 1999 evaluation observes that Roderick had a difficult time understanding the complexity of substance abuse, and demonstrated minimal insight into his commitment offense. But Dr. Carswell went on to explain that Rodericks place of development within the structure of the offense is appropriate because, in talking about the crime, Roderick stated that he shall never drink again and should not have been drinking at the time[,] . . . had he not been drinking, he could have made a better decision, and that the decision he did make was not a responsible one. Despite this rather rudimentary level of insight, the report concluded that Roderick, at 67 years of age, after 14 years of incarceration has developed his maturity to such an extent that he would be an excellent candidate at this time for parole; and that [i]f released to the community [he would] pose no more danger than the average citizen. Building on the 1999 report, the 2003 evaluation also concluded Roderick would be able to integrate back into the community with few problems, and would pose no more danger than the average citizen . . . . with an extremely low probability of recidivism. Without commenting on Rodericks level of insight, the 2005 evaluation reaches the same conclusion. These reports are in stark contrast to Rodericks early evaluations (1989-1994) which reflect little self-understanding and a failure to accept responsibility for his commitment crime or his prior criminal history. The watershed year appears to be 1997, where it is reported that Roderick expressed his regret for the crime and wished he had handled it somehow differently.
Roderick provided a less than incisive explanation for his chronic criminality, but his responses also reflected acceptance of his alcoholism, acknowledgement of responsibility for his crimes, remorse, and shame. Ignoring the unanimous clinical evidence to the contrary presented by trained expertssince 1999 all psychological reports conclude he would pose no more danger to society than the average citizenthe Panels arbitrary pronouncement that Rodericks limited insight poses an unreasonable risk to public safety cannot be considered some evidence to support a denial of parole. (Biggs, supra, 334 F.3d at p. 915 [denial of parole must be based on some evidence, and the evidence must have some indicia of reliability ].)[8]
4. Rodericks Institutional Behavior
A prisoners postcommitment institutional behavior is relevant to his suitability for parole. (DeLuna, supra, 126 Cal.App.4th at p. 595; 2402, subd. (d)(9).) As to this factor, the Panel made the following findings: Mr. Roderick has programmed in a very limited manner. Hes failed to upgrade either vocationally or educationally and has not yet sufficiently participated in beneficial self-help. The Panel concluded that Roderick needed to participate in more self-help in order to understand and cope with stress in a non-destructive manner. The Panels find[ing] that Roderick is in need of additional programm[ing] as well as vocational and educational upgrade[s], is without support in the record, and there is not a scintilla of evidence that would support the conclusion that these findings demonstrate Rodericks release would constitute an unreasonable risk to public safety.
a. Rodericks [L]imited Programming
At the time of the hearing Roderick had participated in AA for more than 12 years, had completed a life skills group program that met one hour each week for 10 weeks, had completed an anger management course, had completed a course on sexually transmitted diseases, and had also completed a 44-week program called Project CHANGE. His work performance during incarceration ranged from satisfactory to exceptional, with his most recent supervisor report reflecting an exceptional performance rating. There are no recommendations in any of Rodericks recent institutional evaluations indicating a need for additional therapy or self-help. For example, in 2005, Dr. Steward related that Roderick has attended all of the self help groups available in the prison such as Anger Management and Alcoholics Anonymous. In 2003, Dr. Hewchuk noted that since Rodericks last psychological evaluation in 1999, he has continued to be a model prisoner within the facility, and that Roderick freely admitted to a former problem with alcohol, and has dealt with this issue through membership and attendance at Alcoholics Anonymous meetings.
In short, there is no evidence to support the Panels determination that Rodericks programming was in any way limited or deficient. The Panel did not describeand we cannot find in the recordany evidence that Roderick was in need of specific programs or that there were programs available to him that he failed or refused to attend. Rather, the evidence indicates only that Roderick was unable to attend programs because of his work schedule, because of his meal schedule, because of lock-downs, or because no programs were available. Although the dissent denigrates these as convenient excuses (dis. opn., post, at p. 33), there is not a shred of evidence controverting the legitimacy of Rodericks explanations. Indeed, in the past the Panel has acknowledged a dearth of available programming.
The Panel also expressed concern that Roderick had not gained enough insight from the classes he had taken. As we have already explained, Rodericks inability to gain or articulate a better understanding of his behavior is a known factor that, according to all reports, does not negatively affect his suitability for parole. Additionally, we must consider the circumstances under which Roderick was responding. It was clear he was quite nervous. Moreover, we can discern even on the cold record that the questioning by one Panel member, plainly irritated at Rodericks inability to give the kind of answers he expected to hear, became quite antagonistic. He even criticized Roderick for not attending programs available in the afternoons because he was sleeping, despite the fact that Rodericks job in the canteen required him to begin work at 2:00 a.m. It could not have been surprising that at this point Rodericks responses were more defensive than introspective.[9]
On this record, the Panels conclusion that theres no indication that [Roderick] would behave differently if paroled in view of his lack of program participation is unsubstantiated speculation. And the Panels recital of the stock phrase that Roderick still needs more self-help in order to learn how to understand and cope with stress in a non-destructive manner is utterly specious. Since at least 1993 Roderick has coped with the many stresses of prison life in a nondestructive manner. No evidence supports the Panels unadorned opinion that if released to live with his family, Roderick will become unable to cope with stress in a nondestructive manner. (See Irons v. Warden of California State Prison-Solano (E.D.Cal. 2005) 358 F.Supp.2d 936, 948 (Irons I) [Boards lay opinion that inmate needs more therapy to understand and cope with stress in a non-destructive manner was without medical or other evidentiary support, and appears to be simply [a reason] repeated often in order to add another factor to the non-suitability conclusion].)[10]
b. Rodericks Failure to Upgrade Vocationally and Educationally
In denying parole, the Panel also found that Roderick had failed to upgrade either vocationally or educationally while in prison. While this finding as a general matter would be other information which bears on the prisoners suitability for release under section 2402, subdivision (b), in Rodericks case, the additional training simply is not relevant to his parole suitability. Given Rodericks advanced age, his eligibility to receive Social Security payments, and his plans to live in his daughters household and work with his son-in-law, there is no evidence indicating that further vocational or educational training would make him more suitable for parole. Indeed, the Panel itself concluded in 2002 that upgrading his vocational skills was no longer a concern. In its November 2002 decision denying him parole, a commissioner of the Panel stated: 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. Having told Roderick in 2002 that vocational training was unnecessary at his age to attain parole, it would be arbitrary and irrational for the Panel now to withhold parole based on his failure to engage in further vocational training.
In any case, additional training or education would not have improved Rodericks chances for economic success upon release. Roderick stated that he planned to work with his son-in-law who is employed as a contract logger. Because Roderick worked in the logging industry before his incarceration, any vocational or educational training in prison would not have further prepared him for this type of employment. Paraphrasing the court in DeLuna, we do not perceive any connection between [training] . . . and the [Panels] conclusion that [Roderick] would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. Nothing in the record indicates that [Rodericks] criminality or ability to support himself was affected by any limitation of his vocation . . . skills. (DeLuna, supra, 126 Cal.App.4th at p. 597.)[11]
Story continues as Part III.
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[1]In reaching our decision we do not consider the trial courts reference to its familiarity with the facts as revealed during the trial. We review only the record before the Panel. (Rosenkrantz, supra, 29 Cal.4th at p. 658.)
[2]In 1994 Roderick told the clinical psychologist that he had been incarcerated in the Youth Authority at the age of 14. Assuming this to be accurate, it appears to be an isolated incident, as there is no record of any juvenile arrests in his file.
[3]It can be argued that the regulation is premised upon the assumption that the stability of relationships helps to prevent crime, and in Rodericks case the premise did not hold. Whether or not that is the intent of the regulation, there is still no evidence to support a finding of unstable relationships.
[4]A Custodial Counseling Chrono (CDC Form 128-A) documents minor misconduct and the counseling provided for it. ( 3312, subd. (a)(2).)
[5]The Panel also failed to consider that Rodericks parole could be conditioned upon regular attendance at AA meetings and random testing to further ensure public safety. ( 2402, subd. (b).)
[6]The Attorney General also cites to the district attorneys argument that Rodericks version of the crime was inconsistent with the victims injuries, the statements of the witnesses and the verdict of the jury. Again, the Attorney General cites no evidence that demonstrates these alleged discrepancies.
[7]In so stating, we do not mean to undervalue the inmates demeanor at his parole hearing. Just like trial judges, parole hearing commissioners are in the best position to evaluate both the credibility and the attitude of the inmate in the course of the hearing, and we must defer to those judgments. Here, however, the Panel members did not disbelieve Roderick, nor did they take him to task for displaying a defiant or indifferent attitudesomething they are known to comment upon when it occurs. (See, e.g., maj. opn., ante, at p. 3.) It was only the content of Rodericks responses that did not satisfy the Panel.
[8]The dissent maintains we must defer to the Boards subjective analysis of an inmates suitability for parole because the hearing officers conduct thousands of hearings each year and, thus, have the opportunity to evaluate participation in, and successful completion of, programs for a great number of prisoners. (Dis. opn., post, at p. 45.) Further, having listened to a multitude of inmates, the hearing officers can assess an inmates attitude toward the Board, and toward his criminal history, his commitment crime, and his programs. (Ibid.) But experience does not necessarily translate into expertise. Indeed, together with the dissent we have spent more than 80 pages trying to divine what evidence the Panel relied on in denying Roderick parole. The Panels inability to state with clarity, in a nonconclusory manner, that which is central to its role in Californias parole system indicates that such subjective analyses do not suffice. What is required is an objective analysis predicated upon evidence and adequately articulated. Further, given the statistically small number of life-term inmates actually released, it is not possible to draw credible conclusions either about the success[] of institutional programs or the insightfulness of the Boards subjective analyses over time. For example, as of December 31, 2002, there were nearly 10,000 inmates serving time for second degree murder; during 2003, 13 were released. (Cal. Dept. of Corrections & Rehabilitation, Prisoners & Parolees, 2003 (2005) table 9, p. 33
[9]The same two Panel members (plus a third) presided over Rodericks 2006 parole hearing. That Panel denied parole for two years to the then 74-year old Roderick despite continued exemplary prison behavior.
[10]Irons I was reversed in Irons v. Carey (9th Cir. 2007) 479 F.3d 658, 663-665 (Irons II). The Ninth Circuit, however, expressly agreed with the district courts finding that the Boards determination that Irons needed more therapy was unsupported by any evidence. (Ibid.; see also maj. opn., ante, at p. 16, fn. 14.)
[11]The dissent makes the point that Roderick also never obtained a GED while incarcerated. (Dis. opn., post, at p. 29.) We question the relevance of that concern, given Rodericks age and his TABE score of 12.9. (See maj. opn., ante, at p. 12 & fn. 10.)
