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

Story Continued from Part IV ..

The majority describes the Boards conclusion that there was no indication that Roderick would behave differently if paroled as unsubstantiated speculation and criticizes the Board for using stock phrases, such as the prisoner needs to participate in self-help in order to understand and cope with stress in a nondestructive manner. The majority states, This stock phrase was used to deny parole to Roderick four times. Apparently it is also used generically across the state. [Citations.] (Maj. opn., ante, p. 16, fn. 14.) No surprise there. Roderick and undoubtedly many, if not most, prisoners who have committed violent crimes suffer from similar issues. Learning to deal with stress in a nondestructive manner would presumably be the main goal of anger management and other similar classes offered in state prison. Prisoners failure to obtain this kind of self-help education logically would be a frequent reason for denying parole. As previously discussed (see ante, pp. 6-7), the repetitive use of what the majority refers to as stock phrases, such as the need to participate in self-help programs or the exact wording found in the governing regulations, is not rote hyperbole that is being improperly relied upon by the Board in finding unsuitability for parole.

The majority relies upon Rodericks ability since 1993 to cope with the stresses of prison life in a nondestructive manner, as indicative of his ability to adequately deal with stress without resorting to violence once he is released into the community.^[1]While his lack of violent infractions in state prison certainly has some bearing on this issue, it cannot be determinative. Obviously Roderick does not have the same stressors that motivated him to commit crimes in the community impacting him in prison. Further, the very controlled environment of state prison gives him fewer opportunities to act out violently than he will have upon release. Finally, he hopefully does not have alcohol readily available to him there. It is this potentially lethal combination of a propensity for violence and alcoholism that is of particular concern in Rodericks case. As the 1994 psychological evaluation stated, In a less controlled setting, he would be less dangerous if he maintains his sobriety, but that can not be predicted or guaranteed. The most recent psychological evaluation indicates that the one factor that may lead Roderick back to a life of crime is alcohol abuse, stating, the only significant risk factor to violence would be inmate Roderick using alcohol or drugs . . . . Even the majority notes that Rodericks criminal history was fueled by his alcohol abuse. (Maj. opn., ante, p. 37.)^[2]

Thus, some evidence supports the Boards determination that Rodericks institutional behavior favored a finding of unsuitability for parole.

(5) Prior Criminal History

The majority does concede that which they cannot contest, that there was some evidence in the record to support the Boards reliance upon Rodericks prior criminal history as a circumstance supporting a finding of unsuitability. The majority describes Rodericks criminal history as  an extensive criminal history starting in 1952 . . . related to traffic violations, Vehicle Code violations, pretty much continuously, almost without a break until this crime in 1980.  (Maj. opn, ante, at p. 35, quoting from Boards statements.) The majority indicates that his criminal history over 28 years, including two prior violent crimes, is long and recognizes that the Panels finding that Roderick has an extensive criminal history is most certainly supported by the evidence. (Maj. opn., ante, at p. 35.) The majority concludes that [t]he question, however, is whether, on this individualized record, the criminal history constitutes some evidence to support the [Boards] conclusion that Roderick poses an unreasonable risk of danger to the public safety. (Maj. opn., ante, at p. 35.)

First, the limited summary of Rodericks prior record by the majority does not do justice to the weight that could be attached to this circumstance. The Board in its findings refers to Rodericks criminal history starting in 1952 and continuing pretty much continuously, almost without a break until this crime in 1980. During the hearing, the Board elicited admissions from Roderick that he had a lot of contact with law enforcement before . . . this offense, that he was kind of a thug, and that he was just kind of a career criminal.

As detailed by the Board, Rodericks 30-plus-year criminal history consisted of a very long series of offenses, committed on a regular basis almost without any break other than periods of incarceration, and included many crimes related to substance abuse (such as driving under the influence and being drunk in public). His criminal history also included felony offenses such as burglary, forgery, grand larceny, and grand theft, and included violent crimes such as resisting arrest, two simple assaults, an assault with a deadly weapon, and armed robbery. His criminal history also reflects numerous attempts at community supervision, including grants of probation and parole, and at least one parole violation. Obviously Rodericks criminal history provides more than just some evidence supporting this circumstance. Rodericks prior criminal history includes substantial instances of crimes of violence, poor response to community supervision, and prior poor performance on parole, and is indicative of a long and continuous history of substance abuse.^[3]

In the Fuentes case, the court upheld the Boards reliance upon the prisoners past criminal history, even though it lacked any prior violence and was minimal. The court noted: It is evident that the Boards concern was not that Fuentess criminal history was violent or extensive but that it showed Fuentes had been given opportunities to reform his conduct, to deal with his substance abuse, to remain in the Navy, and he had not availed himself of those opportunities but had instead engaged in further criminal conduct. The repetitive and recidivist nature of his conducthis failure to heed wake-up calls and the opportunities he was givenwas a legitimate factor for the Board to weigh in favor of a denial of parole. (Fuentes, supra, 135 Cal.App.4th at p. 163.) Here, Rodericks criminal history was both violent and extensive, demonstrating a repetitive and recidivist nature, he similarly failed to heed repeated wake-up calls, failed to avail himself of many opportunities to reform his conduct, and repeatedly reoffended despite numerous efforts at community supervision. (See also Elkins v. Brown, supra, 2006 WL 3782892 at p. 7) [relatively short criminal history (one adult conviction and no juvenile record) was some evidence to support Boards reliance on this circumstance to find prisoner unsuitable].)

The majority relies upon the Biggs case from the Ninth Circuit (Biggs v. Terhune (9th Cir. 2003) 334 F.3d 910, 916-917) for the proposition that continued reliance upon immutable factors such as the prisoners criminal history alone,^[4]when the prisoner has continued to demonstrate exemplary behavior and evidence of rehabilitation, may violate due process. First, decisions of intermediate federal appellate courts, while they may be of persuasive value, are not binding on state courts, even when they interpret federal law. (People v. Zapien (1993) 4 Cal.4th 929, 989.) Further, as the court indicated in Hill v. Kane (N.D.Cal. Oct. 23, 2006 No. C06-3203 SIPR) 2006 WL 3020923, the Biggs reasoning is not controlling even in federal habeas review of state parole decisions, as it is not based on clearly decided Supreme Court precedent and has not been adopted by the California Supreme Court.^[5]

Additionally, as explained by Judge Breyer in Solis, supra, 2006 WL 2934086, the Ninth Circuit itself appeared to retreat from its Biggs position in Sass v. California Board of Prison Terms (9th Cir. 2006) 461 F.3d 1123 (Sass). [T]he Ninth Circuit recently made clear that evidence of a prisoners prior offenses and the gravity of his convicted offense [ ] may constitute some evidence to support the [Board of Prison Terms] decision. Sass, slip op. at 10573. (Solis, supra, 2006 WL 2934086 at p. 4.) In Solis, the continued reliance on the commitment offense and upon the prisoners prior criminal history (in addition to a recent disciplinary action) was held not to violate due process where the Board gave the petitioner individualized consideration and some evidence supported its decision, as it simply could not be said that,  in making a judgment call based on evidence of pre-conviction recidivism . . . the [Board] acted arbitrarily. [Citation.] (Ibid.)

Judge Patel, in Elkins v. Brown, supra, 2006 WL 3782892, discusses the impact of Sass, supra, 461 F.3d 1123 on Biggs v. Terhune, supra, 334 F.3d 910, indicating that the reasoning relied upon by the majority here from the Biggs decision was dicta and that Sass . . .determined that the parole board is not precluded from relying on unchanging factors such as the circumstances of the commitment offense or the petitioners pre-offense behavior in determining parole suitability. (In reElkins, supra, at p. 3, italics added.) Judge Patel then seeks to harmonize the two Ninth Circuit opinions, finding that under Sass, the Board may look to such immutable factors, but under Biggs, the weight to be given to them may decrease over time as a predictor of future dangerousness. (Elkins,supra, 2006 WL 3782892 at pp. 3-4; accord, Singler v. Schwarzenegger (N.D.Cal. April 13, 2007, No. C 06-373 SI) 2007 WL 1031261, at p. 4.)

The Ninth Circuit, however, in the recent case of Irons v. Carey (9th Cir. July 13, 2007, No. 05-15275) 2007 WL 2027359 (Irons), arguably attempted to breathe some new life into the Biggs reasoning (Biggs, supra, 334 F.3d 910) by suggesting that an inmates imprisonment beyond the minimum number of years required by his sentence might be the point at which reliance upon the immutable factor of the circumstance of the commitment offense might cause due process concerns. The court in Irons, like the court in Biggs, upheld the finding of unsuitability for parole and then mused again about the potential that at some point and in some cases the indefinite retention of a prisoner, regardless of rehabilitation, might violate due process. However, this reasoning, like that in Biggs, was merely dicta. As the court stated, We note that in all the cases in which we have held that a parole boards decision to deem a prisoner unsuitable for parole solely on the basis of his commitment offense comports with due process, the decision was made before the inmate had served the minimum number of years required by his sentence . . . . All we held in those cases and all we hold today, therefore, is that, given the particular circumstances of the offenses in these cases, due process was not violated when these prisoners were deemed unsuitable for parole prior to the expiration of their minimum terms. (Irons, supra, 2007 WL 2027359 at p. 6.)

In Singler v. Schwarzenegger, supra, 2007 WL 1031261, District Judge Illston examined the Ninth Circuit decisions in Biggs, supra, 334 F.3d 910, Sass, supra, 461 F.3d 1123, and Irons, supra, 2007 WL 2027359, and concluded, Interpreting this statement from Irons to suggest that the offense can only be relied on until the minimum number of years has been reached would suffer the same problem that Sass identified in Biggs: it is not the holding of the case. The dicta in Biggs and Irons are speculative and do not determine when a denial of parole based solely upon the commitment offense or pre-offense behavior violates due process. Neither logic nor Irons compel a decision that such reliance must cease when the prisoner reaches the minimum number of years in his sentence, such as the fifteenth year of a 15-to-life sentence. (Singler v. Schwarzenegger, supra, 2007 WL 1031261 at p. 4.) Further, as Judge Illston concludes, Past criminal conduct is not some arbitrary factor like eye color that has nothing to do with present dangerousness. Recidivism concerns are genuine. (See Ewing v. California, 538 U.S. 11, 26 [Parallel citations.] (OConnor J.) (noting a report stating that over 60% of violent offenders were arrested again within three years of their release). Californias parole scheme does not offend due process by allowing the [Board] to predict that an inmate presents a present danger based on a murder he committed many years ago. (Ibid.)

There is no magical point at which reliance upon immutable factors such as the commitment offense or prior record of the prisoner, even alone, necessarily becomes a due process violation. Indeed the most egregious of commitment crimes, or the most severe criminal history, may carry sufficient weight to justify retention of a life prisoner long beyond his minimum years of incarceration. If these three cases from the Ninth Circuit mean anything, it is only that the nature of the commitment crime and the prisoners criminal history may be relied upon by the Board in determining that he is not suitable for parole, but the weight to be attributed to such immutable factors may decrease over time, if they are relied upon alone to determine unsuitability, once the prisoner has served his minimum sentence. (See Singler v. Schwarzenegger, supra, 2007 WL 1031261 at p. 4.) Thus, even if we were bound by the musings of the Ninth Circuit in dicta, when determining the predictive value of such an immutable circumstance the particular facts of the circumstance and its age would logically be considered. (See, e.g., Lawrence, supra, 150 Cal.App.4th at p. 1540; Elkins v. Brown, supra, 2006 WL 3782892 at p. 3.) The determination of the weight to be attached to these circumstances would always rest, of course, with the Board.

Rodericks criminal history is long, his prior convictions frequent, sometimes serious, and often violent. His crimes reflect both an addiction to alcohol and a tendency toward violence, and he has previously failed under community supervision. This record alone would justify his retention for a substantial period of time beyond that for other prisoners convicted of similar crimes, if that were the standard. Under the facts of this case, we have not reached the point where relying upon this immutable factor alone, had the Board done so, would constitute a violation of due process (if it ever would), because it had lost all its predictive value. In the present case, however, we need not reach that issue, as the Board did not rely upon the immutable factor of the prisoners prior criminal history without regard to intervening factors. Most significant of those intervening factors were Rodericks failure to successfully program in state prison and his attitude toward the crime. By his testimony at the hearing, Roderick demonstrated that he has little, if any, insight into why he committed so many crimes in the past, why he committed the commitment crime, or his alcoholism. As the Board explained, he did not evoke confidence that he would not return to a life of drinking and violence if released into the community.

The record reflects that the Board engaged in an individualized evaluation of Rodericks suitability for parole, and the majority does not contend otherwise. The only circumstance not considered specifically by the Board, which might have tended to show suitability for parole, was the lack of any evidence that Roderick had a juvenile record. However, as the majority notes, Roderick indicated in one early psychological evaluation that he had been committed to the youth authority at the age of 14. The majority surmises that this must have been an isolated incident, as there is no record of any juvenile arrests in Rodericks file. (Maj. opn., ante, at p. 25, fn. 21.) While it is true that the prisoners criminal record (as set forth in the probation report and in the reports from the California Department of Corrections) does not even reflect this lone juvenile offense that Roderick admitted to, that absence of information does not necessarily support the majoritys conclusion. Rather than speculating that it was an isolated incident, one might more reasonably surmise that either Rodericks juvenile record was extensive, or that the underlying offense was quite serious, if it resulted in a youth authority commitment at the young age of 14.^[6]

Finally, the majority concludes that there is no evidence in the record that supports the Boards conclusion that releasing Roderick at this time would pose an unreasonable danger to the public. The majority, relying upon In re Lee (2006) 143 Cal.App.4th 1400, 1408 and Scott II, supra, 133 Cal.App.4th at p. 595, takes the position that the proper analysis on review of the Boards finding of unsuitability is whether any evidence supports the ultimate decision of the Board, that the prisoners release would unreasonably endanger public safety. As the majority states, 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. (Maj. opn., ante, at p. 20.) It is not settled, however, that this is the correct analysis. There is disagreement as to whether a reviewing court should determine if some evidence supports the circumstances cited by the Board in finding the prisoner unsuitable for parole, or if the correct test is whether some evidence supports the Boards overall determination that the prisoner is unsuitable for parole because his release unreasonably endangers public safety.

The majority in the recent Lawrence case also agrees with the courts analysis in In re Lee, supra, 143 Cal.App.4th 1400. (Lawrence, supra, 150 Cal.App.4th 1511.) Presiding Justice Perluss, however, in his dissent in Lawrence, articulates why this recasting of the some-evidence standard, while it may be appealing to a reviewing courts sense of justice in a particular case, is at odds with Rosenkrantz, supra,29 Cal.4th 616. So long as some evidence supports the factor(s) relied upon by the Board, the only way to determine that the Boards decision to deny parole is not supported by some evidence is for the reviewing court to decide the probative (or predicative) value of that factor is outweighed by other indicia of suitability. (Lawrence, supra, 150 Cal.App.4th at p. 1570 (dis. opn. of Perluss, P. J.).) Although discussed in the context of the review of the Governors determination to override the Boards decision to grant parole, the same standard attaches to judicial review of the Boards determination. Our review is limited to determining whether some evidence supports the Boards finding that each circumstance, relied upon in finding the prisoner unsuitable for parole, exists. The regulations indicate that these circumstances do tend to show unsuitability for parole (see  2402, subd. (c)), and the manner in which these factors are considered and balanced, and the weight to be attached to each, lies within the discretion of the Board. (Rosenkrantz, supra, 29 Cal.4th at p. 677.) So long as the Boards reliance upon them is supported by some evidence, so is the Boards determination that the prisoner is unsuitable for parole. As the court summarized their decision in Rosenkrantz, [U]nder this standard a court is authorized to review the factual basis of the [Boards] decision only to determine whether it is supported by some evidence relevant to the factors the [Board] is required to consider . . . . (Id. at p. 626, italics added.) The court further elaborated that [i]f the decisions consideration of the specified factors is not supported by some evidence and thus is devoid of a factual basis the court should grant the prisoners petition . . . . (Id. at p. 658, italics added.) I agree with Presiding Justice Perluss that, as tempting as it may be in order to satisfy our individual sense of justice and to support our personal opinion regarding whether a particular prisoner is suitable for parole, we cannot subvert the very deferential standard of review in this manner.

Conclusion

As is evident from the areas of disagreement between the majority and dissent in the present case, the process of evaluation of the circumstances to be considered by the Board in determining whether a life prisoner is suitable for parole involves subjective judgment calls. This is to be expected, since the Board is ultimately trying to predict future dangerousness, which is by nature a subjective analysis. (See Sturm, supra, 11 Cal.3d at p. 266.) I believe we should ordinarily defer to the Board in the judgment calls it makes regarding these circumstances; after all, Board members have both training and vast experience in this field. They conduct literally thousands of parole suitability hearings each year.^[7] The Board therefore has the opportunity to evaluate the egregiousness of the facts of a great number of commitment offenses. They evaluate participation in, and successful completion of, programs for a great number of prisoners. Board members listen to the testimony of a multitude of inmates, and assess their attitudes toward their criminal histories, toward their commitment crimes, toward their programming, and toward the Board. The Boards experience and training in evaluating these circumstances far exceed that of most, if not all, judges. So long as there is any evidence in the record to support the circumstances the Board relies upon in making their determination of unsuitability, their decision should be given the deference mandated by the decisional law of the United States Supreme Court and the California Supreme Court. (See Superintendent v. Hill, supra, 472 U.S. at pp. 455-456; Dannenberg, supra, 34 Cal.4th at pp. 1095-1096, fn. 16; Rosenkrantz, supra, 29 Cal.4th at pp. 677-679.)

There is evidence in the record that supports the circumstances relied upon by the Board in finding Roderick unsuitable for parole. This is all that is required, and the Boards determination of unsuitability should be upheld. The trial courts order granting Rodericks writ of habeas corpus should be reversed.^[8]

_____________________________

Sepulveda, J.

Trial Court: Superior Court of Humboldt County

Trial Judge: Honorable J. Michael Brown

Attorney for Appellant: Bill Lockyer

Edmund G. Brown, Jr.

Attorneys General

Robert R. Anderson

Mary Jo Graves

Chief Assistant Attorneys General

Julie L. Garland

Senior Assistant Attorney General

Anya M. Binsacca

Jennifer A. Neill

Supervising Deputy Attorneys General

Jessica N. Blonien

Deputy Attorney General

Attorney for Respondent: Michael Satris

Margaret Littlefield

Under appointment of the Court of Appeal

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

A113370

^[1]I note that the court in Dang v. Ornoski, supra, 2006 WL 3041096 at p. 7 found that the Board properly relied upon six rule violations (the most recent of which was ten years prior to the hearing at issue) and minor infractions (the most recent being three years prior to the hearing) as indicating negative institutional behavior. Older transgressions are obviously relevant, and when such violations and infractions become too old to rely upon is not set in stone.

^[2]The majority relies upon Rodericks alcoholism being in remission, as negating concern about his potential for returning to his habit of drinking and engaging in violent conduct. While he may be considered a recovering alcoholic, characterizing Rodericks alcoholism as in remission hardly seems appropriate, especially given the lack of local bars or other establishments in state prison where alcohol would be readily available to him.

^[3]While section 2401, subdivision (c)(2) does not specifically reference consideration of a prisoners nonviolent criminal history, the list of circumstances in that section is nonexclusive and section 2402, subdivision (b) specifically allows the Board to consider a great range of relevant and reliable information, such as the prisoners  past criminal history, including involvement in other criminal misconduct which is reliably documented.  (Paluzzi v. Kane, supra, 2006 WL 3020919 at p. 6; accord, Elkins v. Brown, supra, 2006 WL 3782892 at p. 7.)

^[4]Although not raised by the majority in their discussion of the commitment crime as a circumstance supporting a determination of unsuitability, that is another immutable factor discussed in Biggs, supra, 334 F.3d 910 and subsequent cases discussing the issue. The same analysis, post, would apply equally to the Boards consideration of the commitment crime.

^[5]Federal review on habeas is, of course, limited. As the court explained in Solis, The writ may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state courts adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. [Citation.]  (Solis, supra, 2006 WL 2934086 at p. 1.)

^[6]Apparently Roderick was still residing in the state of Washington at the time of this youth authority commitment. Most of his juvenile history would have been from the 1940s and it is questionable how accurately the manual portion of his rap sheet would reflect even adult nonautomated criminal history of that vintage, much less out-of-state juvenile adjudications.

^[7]See Board of Prison Terms v. Superior Court (2005) 130 Cal.App.4th 1212, 1240 [several thousand parole suitability hearings were held in 2003]; http://www.cdcr.ca.gov/ReportsResearch/caseload_stats.html [as of Aug. 26, 2007].

^[8]The particular facts of the present case, and some other recent cases stretching the deferential standard of review in the parole suitability context, may not be so egregious as to call for attention from our high court. However, the slow yet steady erosion of the deferential standard of review as demonstrated by these decisions indicates the need for intervention. This erosion includes the subtle manipulation of the elements of that standard of review, as discussed by Presiding Justice Perluss in his dissent to the Lawrence case (Lawrence, supra, 150 Cal.App.4th 1511), along with a continuation of comparative analysis with other similar crimes despite what appears to be a clear statement of the proper analysis in Rosenkrantz, supra, 29 Cal.4th 616and Dannenberg, supra, 34 Cal.4th 1061 (comparing the commitment crime to the minimum elements required for the offense). Finally, the contortion of the deferential standard of review, both in the trial court and upon appellate review, by the mechanism of conducting an evidentiary hearing in trial court habeas proceedings on the very factual issues that were heard and determined by the Board, is also troubling. Clarification of these legal issues, and a strong statement of the appropriate application of the deferential standard of review, would clarify the law in these areas, and hopefully prevent the continued erosion of that standard.