In re CLARENCE BURDAN on Habeas Corpus
Filed 3/24/08
CERTIFIED FOR PUBLICATION
COPY
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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In re CLARENCE BURDAN on Habeas Corpus. | C056099 |
ORIGINAL PROCEEDING: Petition for Writ of Habeas Corpus. Petition granted.
Michael Satris, under appointment by the Court of Appeal, for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Jennifer A. Neill, Supervising Deputy Attorney General, and Pamela B. Hooley, Deputy Attorney General, for Respondent.
On the evening of November 22, 1983, Clarence Burdan shot and killed his wife while the two sat in her car in front of their residence discussing their marital problems. Burdan thereafter entered a negotiated plea of guilty to second degree murder and, on June 21, 1984, was sentenced to an indeterminate term of 15-years-to-life in state prison.
On February 9, 2005, the Board of Parole Hearings (Board) conducted a parole consideration hearing and found Burdan suitable for parole. However, the Governor reversed the Boards decision, concluding Burdans release would pose an unreasonable risk to public safety because of the grave nature of the conviction offense.
Burdan filed a petition for writ of habeas corpus in the superior court, which that court denied on August 7, 2006. On June 29, 2007, Burdan filed a petition for writ of habeas corpus in this court. On August 16, 2007, we issued an order to show cause to Matthew C. Kramer, Warden of Folsom State Prison (the Warden) in order to review the Governors decision.
The Warden filed a return to our order to show cause and Burdan filed a denial to the return. We conclude the Governors decision is not supported by the record and grant the petition.
Facts and Procedural History
At his parole consideration hearing, Burdan acknowledged the accuracy of the information concerning the underlying murder as set forth in the 1984 probation report. That report reveals the following:
Burdan married the victim, Charity Adams, in April 1974. At the time of the murder, they had two children.
At approximately 8:00 p.m. on November 22, 1983, Stephen Hall, a Sacramento police officer who was off duty and at home at the time, walked outside and heard a horn honk and a female voice calling his name with some urgency. Hall lived next door to the Burdans. Hall began walking toward a Honda Civic in which he could see Burdan and his wife arguing and struggling.
When Hall got within five feet of the car, he heard three small-caliber gunshots. He immediately ran back into his house and retrieved his own gun. When Hall came back outside, he heard two more shots.
Hall yelled at Burdan to open the car window, and Burdan complied. Hall could see that Burdan was fumbling with something on his lap and heard him say several times, I cant make it work. I cant make it work. I want to finish the job. Burdan was emotionally upset, shaking, nervous and distraught.
Hall reached in and grabbed a handgun away from Burdan. Burdan struggled briefly over the gun, saying, I want to finish this . . . . I want to make it work. Hall got Burdan out of the car, where Burdan said, Steve, give me your gun. I wont hurt you. I just want to kill myself. Hall pulled Burdan away from the car with some difficulty, because Burdan was walking very poorly and was not well coordinated. Burdan kept asking for Halls gun and appeared to be looking at Hall as if to size him up and determine if he could take the gun by force. Hall knocked Burdan to the ground.
Hall eventually handcuffed Burdan to a light post and said he wanted to check on Burdans wife. Burdan said, Steve, its no use. I know shes dead.
The victim had eight gunshot wounds, five entry and three exit. One wound was to the left temple, two to the upper right temple, one on the left side of the neck, one on the right side of the neck, and three to the chest.
The handgun used by Burdan was a single-action, .22-caliber revolver. In order to make the gun fire, it was necessary to cock the hammer before each shot. Burdan had borrowed the gun the day before from an acquaintance. At the time, he told the acquaintance he wanted the gun for target practice. The gun was loaded when Burdan received it. Five live rounds of ammunition were found in Burdans jacket after he was taken into custody.
It was later revealed that Burdan and his wife had been having marital difficulties for a month or two before the shooting. Burdan had discovered that his wife had begun a sexual affair with a female coworker. He had in fact observed his wife and the other woman engaging in sex at the coworkers home two or three days before Burdan committed the crime. Burdan had briefly moved out of the home, but then returned and made his wife move out the day before the shooting.
On the day of the shooting, Burdan had apparently called his wife and arranged to meet with her that evening. Also on that day, the victim called her sister and told her that she had informed Burden she was leaving him, he had asked her to stay, she had said she could not, and Burdan had said he understood.
A neighbor told police the victim had spoken with her two weeks before the murder and said she was afraid that Burdan was going to do something to hurt himself. The victim said Burdan was depressed and indicated he needed to see a psychiatrist. Others also reported that Burdan appeared depressed for about two weeks before the murder. A coworker described Burdan as being close-mouthed and keeping his personal business to himself. He noticed something had been bothering Burdan for about a month before the murder, that his production had declined, and that Burdan would just sit and stare at the floor for long periods of time. The coworker had also seen Burdan crying.
The victims sister, who was living with the Burdans at the time, revealed that the day before the murder, Burdan was acting hostile and she was afraid something was going to happen. The victims mother stated that the day before the murder, the victim told her she was staying with a friend because Burdan had beaten her up and she was afraid of him.
Burdan told the probation department in 1984 that he moved out of the home in October 1983 because of marital problems. He said he wanted a divorce, but the victim did not. He said he accused the victim of spending a lot of time with her coworker but she said she it did not matter how he felt because she would continue doing as she pleased. Burdan said that a few days before the murder, he went to the other womans home and saw her and his wife making love together. He confronted them and later told the victim to move out. Burdan acknowledged he slapped her. The next morning she moved out.
Burdan admitted borrowing the handgun from a friend and purchasing ammunition. He said the plan at the time was to kill himself. He said he arranged to meet the victim to discuss bills and, when she arrived at their home, got into the car with her. They smoked cigarettes and talked for a while. She eventually threw her wedding ring on the dashboard, and he did the same. She refused to discuss their marriage problems or her new lover.
At one point, the victim said, What are you going to do, kill me? Burdan pulled out the handgun and she grabbed it with both hands and started screaming. As they struggled over the gun, it went off. Burdan said he did not know how many times the gun went off but later learned it had been five times. He said he then put the gun to his own head and pulled the trigger. However, it did not go off. He said he was trying to load another shell into the gun when Officer Hall arrived and took it from him. Burdan acknowledged trying to take Halls gun from him to use on himself.
As noted above, Burdan entered a negotiated plea of guilty to second degree murder and was delivered to the custody of the Department of Corrections and Rehabilitation on June 29, 1984. The Board set a minimum parole eligibility date of June 7, 1992.
Between 1991 and 2002, Burdan appeared before the Board on seven occasions and was denied parole each time. On May 13, 2003, Burdan again appeared before the Board, but this time was found suitable for parole. However, on October 3, 2003, then Governor Davis reversed the Boards decision. Burdans subsequent petitions for writ of habeas corpus in the superior court and this court were denied, and both the California Supreme Court and the United States Supreme Court denied review.
On January 1, 2005, Burdan filed a petition for writ of habeas corpus in the United States District Court challenging the Governors 2003 parole decision.
On February 9, 2005, Burdan again appeared before the Board and the Board again found him suitable for parole. The Board specifically found Burdan would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison. Among other things, the Board cited the fact Burdan had no prior criminal record, has had reasonably stable relationships with others, has enhanced his ability to function within the law through various programs and educational opportunities while in prison, has participated in a variety of self-help and therapy programs, has had no major infractions while in prison, and has a number of employable skills. The Board also found the 1983 murder was mitigated by the fact it resulted from significant stress in Burdans life due to marital problems.
On June 29, 2005, Governor Schwarzenegger reversed the Boards second decision to grant parole. After first noting the various factors in favor of granting parole, as highlighted by the Board, the Governor concluded the gravity of the 1983 murder alone is enough to support a conclusion that Burdans release on parole would pose an unreasonable risk to public safety.
Burdan filed a petition for writ of habeas corpus in the superior court, challenging the Governors 2005 parole decision. The superior court denied the petition on August 7, 2006.
On June 29, 2007, Burdan filed the instant petition. On August 16, 2007, we issued an order to show cause to the Warden.
Discussion
I
Introduction
Penal Code section 3041 addresses how the Board makes parole decisions for indeterminate life inmates. (Undesignated section references that follow are to the Penal Code.) Under subdivision (a), one year before the prisoners minimum eligible parole date, a Board panel is to meet with the inmate, shall normally set a parole release date, and shall do so in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public. ( 3041, subd. (a).) This release date must comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of parole release dates. (Ibid.) However, subdivision (b) specifies the circumstances under which a parole release date need not be fixed. It provides that a parole release date shall be set unless [the Board] determines the inmate is presently unsuitable for parole, i.e., 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. ( 3041, subd. (b).)
Under Board regulations, the panel must determine whether the life prisoner is suitable for release on parole, and [r]egardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison. (Cal. Code Regs., tit. 15, 2402, subd. (a).) A parole date set under these regulations shall be set in a manner that provides uniform terms for offenses of similar gravity and magnitude with respect to the threat to the public. (Id., 2401.)
The regulations list six factors tending to show unsuitability for release on parole: (1) commission of the offense in an especially heinous, atrocious or cruel manner; (2) a previous history of violence; (3) an unstable social history; (4) prior sadistic sexual offenses; (5) a lengthy history of mental problems; and (6) serious misconduct in prison or jail. (Cal. Code Regs., tit. 15, 2402, subd. (c).) They also list nine factors tending to show suitability for parole: (1) the absence of a juvenile record; (2) a history of reasonably stable social relationships; (3) tangible signs of remorse; (4) the commission of the crime resulted from significant stress, especially if the stress had built over a long period of time; (5) battered woman syndrome; (6) lack of a history of violent crime; (7) increased age, which reduces the probability of recidivism; (8) marketable skills and a reasonable plan for the future; and (9) responsible institutional behavior. (Id., 2402, subd. (d).)
The importance of these factors is left to the discretion of the parole panel (Cal. Code Regs., tit. 15, 2402, subds. (c), (d)), and judicial review of the Boards parole decisions is limited. (In re Rosenkrantz (2002) 29 Cal.4th 616, 655.) [T]he 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. (Id. at p. 658, italics added.) Only a modicum of evidence is required. Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the [Board]. . . . [T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the [Board], but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious. 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. As long as the [Boards] decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the courts review is limited to ascertaining whether there is some evidence in the record that supports the [Boards] decision. (Id. at p. 677.)
Any parole decision by the Board is subject to review by the Governor. Article V, section 8, subdivision (b), of the California Constitution provides: No decision of the parole authority of this State with respect to the granting, denial, revocation, or suspension of parole of a person sentenced to an indeterminate term upon conviction of murder shall become effective for a period of 30 days, during which the Governor may review the decision subject to procedures provided by statute. The Governor may only affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider. The Governor shall report to the Legislature each parole decision affirmed, modified, or reversed, stating the pertinent facts and reasons for the action.
The statutory procedures governing the Governors review of a parole decision are set forth in section 3041.2. It states:
(a) During the 30 days following the granting, denial, revocation, or suspension by a parole authority of the parole of a person sentenced to an indeterminate prison term based upon a conviction of murder, the Governor, when reviewing the authoritys decision pursuant to subdivision (b) of Section 8 of Article V of the Constitution, shall review materials provided by the parole authority.
(b) If the Governor decides to reverse or modify a parole decision of a parole authority pursuant to subdivision (b) of Section 8 of Article V of the Constitution, he or she shall send a written statement to the inmate specifying the reasons for his or her decision.
The Governors determination of the inmates suitability for parole is subject to the same standards as that of the Board. (In re Dannenberg (2005) 34 Cal.4th 1061, 1086.) It is also subject to review under the same deferential some evidence standard. (In re Rosenkrantz, supra, 29 Cal.4th at p. 667.)
Burdan attacks the Governors decision to reverse the Boards grant of parole on a number of fronts. He contends the Governors decision is not supported by some evidence that his release would pose an unreasonable risk of danger to society. He also contends the Governors review of the Boards decision violated the terms of his plea agreement because, at the time of the plea, the Governor did not have authority to review parole decisions and he was assured any parole decision would be made by the Board alone. Finally, Burdan contends the Governors reversal of the Boards grant of parole violates ex post facto principles of the United States Constitution. As we shall explain, because we agree with Burdans first contention, we need not consider the others.
II
Administrative Record
Burdan has filed a motion for an order requiring the Warden to file a copy of the administrative record reviewed by the Governor in making his parole decision. As justification for the motion, Burdan has expressed a concern that the Governor did not consider the full administrative record that was before the Board at the time it granted parole.
We deny Burdans motion. The Governor has indicated he considered the same factors as the Board, and his decision reflects knowledge of the same matters that were before the Board. The Governor is required to consider the same record as the Board, and we presume official duty has been regularly performed. (Evid. Code, 664.) We find the record before us adequate to resolve the issues presented.
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