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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Story Continued From Part I ..

III

Timeliness

The Warden contends the petition should be denied as untimely. The Warden points out that the Governor reversed the Boards parole decision on June 29, 2005, but Burdan did not file his habeas petition in the superior court until a year later, on June 28, 2006. The Warden further points out that the superior court denied Burdans petition on August 7, 2006, yet he did not file the instant petition until June 29, 2007, more than 10 months later and two years after the Governors parole decision.

The Warden relies on a number of cases indicating that, absent a showing of good cause, a petition for writ of habeas corpus must be filed without substantial delay. (See In re Sanders (1999) 21 Cal.4th 697, 703-705; In re Gallego (1998) 18 Cal.4th 825, 831; In re Clark (1993) 5 Cal.4th 750, 765.) However, these are all capital cases where the petition was a collateral attack on the underlying conviction. In Sanders, the high court explained the rationale for requiring a prompt petition: By requiring that such challenges be made reasonably promptly, we vindicate societys interest in the finality of its criminal judgments, as well as the publics interest in the orderly and reasonably prompt implementation of its laws. [Citation.] Such timeliness rules serve other salutary interests as well. Requiring a prisoner to file his or her challenge promptly helps ensure that possibly vital evidence will not be lost through the passage of time or the fading of memories. In addition, we cannot overestimate the value of the psychological repose that may come for the victim, or the surviving family and friends of the victim, generated by the knowledge the ordeal is finally over. (In re Sanders, supra, at p. 703.)

These same considerations do not apply where a life prisoner challenges a parole decision. The record before the Board or Governor is all on paper, so there is little risk of vital evidence being lost. Finality of the conviction, both as to society in general and the victims in particular, is not an issue. The only one potentially prejudiced by a delay in challenging a parole decision is the inmate himself. It is, after all, the inmate who must remain in prison after he or she might otherwise have been released on parole. Any delay in filing a petition challenging the denial of parole means a corresponding delay in the ultimate release date. (See In re Bartlett (1971) 15 Cal.App.3d 176, 186.) Because this is not a situation where a grant of habeas relief would require a retrial of the criminal charges, there is no potential prejudice to the state.

At any rate, in In re Clark, supra, 5 Cal.4th 750, the high court indicated a petition for writ of habeas corpus should be filed as promptly as the circumstances allow. (Id. at p. 765, fn. 5.) Here, despite Burdans assertion that counsel appointed for him in his federal court challenge to the Governors 2003 parole reversal told Burdan that he would handle any challenge to the Governors 2005 parole reversal, Burdan was unrepresented in this matter until we appointed counsel for him. We do not find a delay of 10 months for an unrepresented prison inmate to file a petition for writ of habeas corpus in the Court of Appeal, after denial of a similar petition in the superior court, to be unreasonable. We shall therefore turn to the merits of Burdans petition.

IV

Sufficiency of the Evidence

As explained earlier, the Board found Burdan suitable for parole. The Board explained that 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, and has had no major infractions while in prison. The Board also noted Burdan has a number of employable skills that were enhanced while in prison. Regarding the 1983 murder, the Board indicated Burdan committed the crime . . . as a result of a significant stress in [his] life in that [he] and [his] wife had been having significant marital problems and in which [he] subsequently learned that she was having a lesbian affair with another woman.

The Board also noted Burdan has realistic parole plans, including a job offer and family support. The Board expressed its opinion, and that of a number of psychiatric evaluations, that Burdan shows appropriate remorse, understands the nature and magnitude of the offense, and accepts responsibility for his actions. The Board took note of Burdans latest psychological evaluation, which states: Overall evaluating the three categories of risk for this inmate, history of problems, self-help and change, and realistic plans and support network, he is considered a low risk when it comes to potential future acts of violence. This conclusion is based on the extremely viewed actuarial risk factors present in this inmates file, his lack of prior criminal record, lack of substance abuse, and overall productive life prior to his offense, stands out from most of the inmates within the Department of Corrections. The offense itself appears to have been a long, entangled, emotional event the likes of which are not likely to ever be duplicated again especially after all the positive gains this inmate has made.

In reversing the Boards decision, the Governor noted the factors supporting parole but nevertheless concluded the gravity of the 1983 murder alone supported denial. The Governor explained: [T]he existence of significant stress does not mitigate the severity of his crime enough for me to conclude that the murder he committed was not especially grave. It was, even if his claim is true about the first shot being unintentional. Mr. Burdan shot his wife numerous times at close range, striking her a total of five times in the head, neck and torso. The autopsy, as described in the probation officers report, indicated that the gun was probably only a couple of inches away from Mrs. Burden for one of the neck wounds and that a slug was recovered from her skull. According to the same report, the off-duty police officer heard at least five shots and stated that while the first three shots were in rapid succession, the last two shots occurred after he had gone into and returned from his house and were spaced four or five seconds apart roughly. Moreover, the same officer reported that the firing mechanism of the gun required that the user physically cock the hammer before pulling the trigger, and that when he told Mr. Burdan he was going to check Mrs. Burdans condition just after the shootings, Mr. Burden stated something to the effect of, Dont bother. Shes dead. Mr. Burdan chose to repeatedly cock and fire the gun at his wife. As he told the 2005 Board, at some point after the initial gunshot, Mr. Burdan knew what [he] was doing and didnt want her to suffer. Under these circumstances, the second-degree murder of which Mr. Burdan was convicted was especially grave because, although not his initial plan, he decided at some point to kill his wife and then did so intentionally and deliberately by shooting her multiple times at close range. This factor alone is enough for me to at this time conclude that his release from prison would pose an unreasonable public-safety risk.

Reduced to its essence, the Governors explanation amounts to this: The murder was especially grave because Burdan decided at some point during the struggle to kill his wife and did so by deliberately shooting her multiple times at close range.

There is no question the record supports the factors cited by the Governor. However, the relevant test is not whether some evidence supports the reasons cited for denying parole, but whether some evidence indicates a parolees release unreasonably endangers public safety. (In re Lee (2006) 143 Cal.App.4th 1400, 1408, italics omitted; see also, In re Tripp (2007) 150 Cal.App.4th 306, 313.)

As explained earlier, one of the factors suggesting unsuitability for parole is that the murder was committed in an especially heinous, atrocious or cruel manner. (Cal. Code Regs., tit. 15, 2402, subd. (c)(1).) This factor alone may support a parole denial. (In re Dannenberg, supra, 34 Cal.4th at p. 1094.) The factors to be considered in assessing the gravity of the commitment offense include: (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. (Cal. Code Regs., tit. 15, 2402, subd. (c)(1).)

The Warden contends one of the foregoing factors applies here, because the murder was carried out in a dispassionate and calculated manner. According to the Warden, Burdan purchased ammunition, borrowed a handgun under false pretenses, arranged to meet his wife, and shot her five times at close range while being required to cock the gun before each shot.

It is hard to see how the 1983 murder of Mrs. Burden can possibly be characterized as one that was done in a dispassionate and calculated manner, such as an execution-style murder. (Cal. Code Regs., tit. 15, 2402, subd. (c)(1)(B).) The very essence of the offense was one of passion. And far from being calculated, even the Governor accepted that Burdan may not have intended to kill his wife initially. The murder took place in a residential area next door to the home of a police officer. Officer Hall described Burdan as emotionally upset, shaking, nervous and distraught after the shooting. As for the other factors relevant to the gravity of the offense, there were no multiple victims, Mrs. Burdan was not abused, defiled or mutilated, the murder was not carried out in a manner demonstrating an exceptionally callous disregard for human suffering, and Burdans motives were not inexplicable or very trivial.

At any rate, the California Supreme Court has held that, where the nature of the commitment offense is used as a basis for denying parole, the requirement that the offense be particularly egregious is meant to convey only that the violence or viciousness of the inmates crime must be more than minimally necessary to convict him of the offense for which he is confined. (In re Dannenberg, supra, 34 Cal.4th at p. 1095.) As explained by the court: In some circumstances, a denial of parole based upon the nature of the offense alone might rise to the level of a due process violation--for example where no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction for that offense. Denial of parole under these circumstances would be inconsistent with the statutory requirement that a parole date normally shall be set 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).) The Boards authority to make an exception [to the requirement of setting a parole date] based on the gravity of a life term inmates current or past offenses should not operate so as to swallow the rule that parole is normally to be granted. Otherwise, the Boards case-by-case rulings would destroy the proportionality contemplated by . . . section 3041, subdivision (a), and also by the murder statutes, which provide distinct terms of life without possibility of parole, 25 years to life, and 15 years to life for various degrees and kinds of murder. (. . . 190 et seq.) (In re Rosenkrantz, supra, 29 Cal.4th at p. 683.)

The Warden contends the facts and circumstances surrounding the 1983 murder of Mrs. Burdan were more than the minimal necessary to convict him of second degree murder, given the elements of premeditation highlighted by the Governor. In his decision reversing the Board, the Governor mentioned the following aspects of the crime: On the day of the murder, Mr. Burdan purchased ammunition and borrowed a gun from a friend, claiming it was for target practice. He then made arrangements to meet his wife to talk later that evening.

The fact that Burdan entered a negotiated plea of guilty to second degree murder does not preclude the Governor from considering particular aspects of the crime beyond its basic elements. (See In re Rosenkrantz, supra, 29 Cal.4th at pp. 678-679 [holding that a jury verdict acquitting the defendant of first degree murder did not preclude the Governor from considering evidence of premeditation in assessing parole eligibility].) Thus, while second degree murder does not involve premeditation, the Governor may consider facts suggesting Burdan planned and prepared for the murder.

However, as noted earlier, the Governor did not rely on evidence of premeditation in concluding the gravity of the offense warranted denial of parole. Rather, the Governor stated: [T]he second-degree murder of which Mr. Burdan was convicted is especially grave because, although not his initial plan, he decided at some point to kill his wife and then did so intentionally and deliberately by shooting her multiple times at close range. In other words, the Governor assumed Burdan did not initially plan to kill his wife, which would negate any suggestion of premeditation. Burden may well have obtained a gun and ammunition in advance, but this may have been for the purpose of killing himself.

Given the deferential standard of review applied to the Governors parole decisions, it is inappropriate for courts to salvage the [Governor]s inadequate findings by inferring factors that might have been relied upon. At minimum, the [Governor] is responsible for articulating the grounds for [his] findings and for citing to evidence supporting these grounds. (In re Roderick (2007) 154 Cal.App.4th 242, 265.) We must confine our review to the stated factors found by the [Governor], and all the evidence presented at the parole hearing which is relevant to those findings, not to findings that . . . the [Governor] might have made. (In re DeLuna (2005) 126 Cal.App.4th 585, 593-594.)

As explained above, the Governors justification for finding the 1983 murder was particularly egregious is that Burdan decided at some point during the encounter to kill his wife and did so by deliberately shooting her multiple times at close range. However, the fact that Burdan intentionally killed his wife is not a permissible factor, inasmuch as malice is one of the minimal elements of second degree murder (see  187-189) and malice involves either an intent to kill or an intent to commit an act, the natural consequences of which are dangerous to human life. (See People v. Cortez (1998) 18 Cal.4th 1223, 1229; People v. Saille (1991) 54 Cal.3d 1103, 1114-1115.)

Thus, the Governors justification for denying parole, in the face of overwhelming factors supporting it, is reduced to the fact that he shot his wife multiple times at close range. In assessing the adequacy of this rationale, it must be remembered the overarching consideration in a decision whether to grant parole is public safety. (In re Dannenberg, supra, 34 Cal.4th at p. 1084; In re Scott (2005) 133 Cal.App.4th 573, 591.) Some evidence of the existence of a particular factor does not necessarily equate to some evidence the parolees release unreasonably endangers public safety. (In re Lee, supra, 143 Cal.App.4th at p. 1409.) For example, a seriously troubled adolescence, even for an 80-year-old inmate, might constitute some evidence of a history of unstable or tumultuous relationships with others. (Cal. Code Regs., tit. 15, 2402, subd. (c)(3).) It would not necessarily be some evidence of an unreasonable danger to public safety. (In re Lee, supra, 143 Cal.App.4th at p. 1408, fn. 4.)

[A]ll second degree murders by definition involve some callousness--i.e., lack of emotion or sympathy, emotional insensitivity, indifference to the feelings and sufferings of others. (In re Scott (2004) 119 Cal.App.4th 871, 891.) The fact that Burdan shot his wife multiple times at close range following a struggle in her car over the gun does not demonstrate the crime was particularly egregious, atrocious or heinous such that Burden remains a danger to the public nearly a quarter of a century later. As noted above, he did not attack, injure or kill multiple victims; did not carry out the offense in a dispassionate and calculated manner, such as an execution-style murder, or in a manner which demonstrates an exceptionally callous disregard for human suffering; and the motive for the crime was not inexplicable or very trivial. (Cal. Code Regs., tit. 15, 2402, subd. (c)(1).) The fact that Burdan shot his wife several times may suggest nothing more than that he intended to kill her, given that, even after the five shots, she remained alive for some period of time. (See In re Elkins (2006) 144 Cal.App.4th 475, 496-497 [On the facts of this case, with the victim continuing to move after a first blow, Elkins had to strike his victim multiple times in order to kill him].) And the close range of the shots appears to be more a function of the confined quarters of the car than a particular callousness.

The measure of atrociousness is not general notions of common decency or social norms, for by that yardstick all murders are atrocious. [Citation.] Rather, the inquiry is whether among murders the one committed by [Burdan] was particularly heinous, atrocious or cruel. [Citations.] (In re Lee, supra, 143 Cal.App.4th at p. 1410.)

In assessing the gravity of a particular crime, it must be kept in mind that [t]he commitment offense is one of only two factors indicative of unsuitability a prisoner cannot change (the other being his Previous Record of Violence). Reliance on such an immutable factor without regard to or consideration of subsequent circumstances may be unfair [citation], and runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation. [Citation.] The commitment offense can negate suitability only if circumstances of the crime reliably established by evidence in the record rationally indicate that the offender will present an unreasonable public safety risk if released from prison. Yet, the predictive value of the commitment offense may be very questionable after a long period of time. [Citation.] Thus, denial of release based solely on the basis of the gravity of the commitment offense warrants especially close scrutiny. (In re Scott, supra, 133 Cal.App.4th at pp. 594-595, fns. omitted; accord In re Elkins, supra, 144 Cal.App.4th at p. 496.)

Here, even under the deferential some evidence standard, the justification given by the Governor for denying parole cannot withstand scrutiny. The Governor cited no evidence to suggest that, in the face of overwhelming evidence of his suitability for parole, Burdans release would pose an unreasonable risk of danger to society.

Disposition

The petition for writ of habeas corpus is granted. The Governors decision reversing the Boards grant of parole is vacated and the Boards decision is reinstated.

HULL, J.

We concur:

BLEASE , Acting P.J.

ROBIE , J.

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