In re Criscione

Filed 4/17/09 In re Criscione CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In 1979, petitioner Arthur Sam Criscione killed his 22-year-old girlfriend, Dorothy Quintanar, during an argument. He was convicted of second degree murder and committed to state prison to serve an indeterminate term of 15 years to life.

In the instant appeal, we review whether the superior court properly granted Crisciones petition for habeas relief arising out of a 2004 hearing before the Board of Prison Terms (Board).[1]^, The superior court granted Crisciones habeas petition, finding that the Board failed to accord Criscione due process at his 2004 hearing since it failed to weigh his commitment offense against the minimum elements of a first degree murder. The superior court ordered the Board to hold a new parole hearing within 35 days, at which hearing the Board would be precluded from relying on any factor the superior court had rejected unless there was new and further evidentiary support for such a factor.

Respondent J. Hartley, Acting Warden at Avenal State Prison (Warden), timely appealed.[2] On February 15, 2008, we granted the Wardens petition for writ of supersedeas and stayed the superior courts order granting habeas relief.

Our independent review of the record suggests that the Board did not adhere to the evidentiary standard recently set forth in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence), and a companion case, In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis). Lawrence and Shaputis clarified that a decision to deny parole comports with due process only if there is a rational nexus between the relevant statutory factors as found by the Board or the Governor and the determination that the inmate would present a current danger to the public if released. (Lawrence, supra,at p. 1210; Shaputis, supra, at p. 1255.) Since Lawrence and Shaputis were not decided until well after the proceedings from which this appeal is taken, we shall remand the matter to the Board for rehearing in light of this clarifying law.[3] In so doing, we express no opinion on the ultimate issue, which is Crisciones suitability for parole. (See In re McGraw (2009) 171 Cal.App.4th 251.)

I. Factual and Procedural Background

A. The 2004 parole hearing

At the 2004 parole consideration hearing, the Board considered documentary history of Crisciones commitment offense, records of his incarceration and letters of support from family, as well as Crisciones own statements at the hearing. We summarize the evidence as follows:

i. The commitment offense[4]

It is undisputed that appellant [Criscione] killed his girlfriend, Dorothy Quintanar, on the night of February 27, 1979. At about midnight he arrived at the home of his son, Ricky, age 21, and told him he had killed Dorothy. The two men then drove to the home of appellants ex-wife (Rickys mother), but she refused to see him. They then stopped at the police station, where defendant asked to speak to certain officers he was acquainted with, but none of them were available. Next, they drove by Marios, a bar where appellant worked as a bouncer, then stopped at appellants apartment so that he might see Dorothy for the last time. Appellant returned to the car with a photograph of himself and Dorothy, then broke into sobs. Finally the pair drove back to the police station where appellant told the desk officer that he had killed Dorothy.

Appellant was taken into an interrogation room and given Miranda warnings. He admitted that he did it, but declined to say more, although he voluntarily gave the apartment keys to the officer.

Proceeding to appellants apartment the police found the body of Dorothy in a water-filled bathtub. The coroner determined the cause of death to be strangulation and drowning. It was noted that the victim had bruises on the palm of her right hand consistent with someone putting pressure on the outside of the hand while she held a blunt object. A steak knife was found in the bathtub. (People v. Criscione, supra, 125 Cal.App.3d at p. 280.)

ii. Criminal record, social history, parole plans

Criscione was born in Chicago in 1938, and is the youngest of three children. He keeps in touch with his brother and his sister, as well as his three adult children.

As a child, Criscione had exhibited severe mental problems and was once sent to Livermore Hospital for three months to receive electroshock treatment and insulin therapy. (People v. Criscione, supra, 125 Cal.App.3d at p. 281.) Criscione quit school in the 10th grade to work with his father as a baker.

Except for the commitment offense, Criscione has no juvenile or adult criminal record. Crisciones social history, however, includes several violent episodes, some of which involved the victim and some of which involved his ex-wife. At Crisciones trial, the victims mother testified that the relationship between appellant and Dorothy had been intermittent and tumultuous. Her daughter, she testified, was a PCP addict who often behaved in a bizarre and violent manner--once even stabbing her own brother. Violent arguments between appellant and Dorothy were common: indeed only the week before the killing, appellant and Dorothy had argued wildly, appellant accusing her of infidelity, and to punish her, cutting off her hair. . . . [The victims mother] told appellant to leave Dorothy alone, warning that some day he was going to end up killing her and spending years in prison. Appellant replied that he knew that was true. (People v. Criscione, supra, 125 Cal.App.3d at p. 281.)

At the age of 17 appellant married Doris, who was pregnant at the time. Just before the marriage he gave Doris an overdose of sleeping pills, rushed her to the hospital, then reportedly said that if he couldnt have her, he would kill her. [] During his marriage to Doris, appellant suffered frequent periods of depression and was hospitalized several times. On numerous occasions he exhibited violence toward his wife, accusing her of infidelity, and on one occasion even tried to strangle her. (People v. Criscione, supra, 125 Cal.App.3d at pp. 281-282.)

Prior to incarceration, Criscione worked as a produce clerk, and was a member of the local union. For a short period, Criscione was disabled from work due to bouts of depression. He subsequently worked as a bouncer at various bars in Santa Clara County.

If paroled, Criscione advised the Board that he intended to move in with his brother, who recently retired. Alternatively, Crisciones son offered to let Criscione live with him and his wife in Turlock. Crisciones sister also wrote a letter offering to let him live with her in San Clemente.

As for employment, if released, Criscione indicated that he would have to go on Social Security and work part-time. He stated his brother and sister know[] a lot of people and would help him find work.

iii. Institutional behavior

Criscione has a nearly spotless prison record, with no major disciplinary infractions and only two minor infractions from 1981 and 1983, both for performance.[5] Criscione also has a couple of laudatory notations in his file.

Criscione was working in the laundry and has worked as a baker while incarcerated. He participated in AA, although he did not feel he really needed it. He has also taken a class in anger management, as well as a year long CAT T course which covered several areas, including anger management, criminal thinking and self-esteem. Through his attorney, Criscione admitted that he had not participated in any self-help programs since his previous parole review hearing, because Criscione believed he had done everything that the Board expected of him in that regard and because program cutbacks had restricted self-help programs. Crisciones counselor deemed him to pose a low to moderate risk to the public if released from prison at this time.

iv. Opposition by the Santa Clara County District Attorney

A representative from the Santa Clara County District Attorneys office participated in the hearing via video conference and argued against granting parole.

v. Psychological factors

The Board reviewed a psychological report dated February 25, 2004, which noted that Criscione has adjusted well while incarcerated, but his violent behavior has always involved tumultuous relationships with women and that he was prone to violence in these relationships. The report concluded that his [p]otential for violence in the community is more difficult to assess, if only because the only violent episodes reported were in the context of heterosexual relationships, which he has not had access to in the past 25 years. Given his age, his overall improvement in mental state alone, current behavioral stability, it is unlikely that he would be a risk to the community if released and thus now presents as a lower than average risk for dangerousness in an unsupervised setting.

vi. The Boards decision

The Board concluded that Criscione was not yet suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison and denied parole for one year. The presiding commissioner announced the decision: [T]he offense was carried out in an especially cruel and callous manner in that the victim was strangled. The offense was carried out in a manner which demonstrates an exceptional [sic] callous disregard for human suffering and based on the information in the file, sir, it appears that after the victim was strangled, she was strangled to unconsciousness, was still alive, and then she was placed in a bathtub to drown. . . . [O]n previous occasions it has been alleged that you have attempted to inflict serious injury on another woman, your first wife, in that according to the appellate documents, page four: At the age of 17, you married Doris, who was pregnant at the time. Just before the marriage, you gave Doris an overdose of sleeping pills, rushed her to the hospital, then reportedly said that if you couldnt have her, you would kill her. According to the record, during your marriage to Doris, you suffered frequent periods of depression and were hospitalized on a variety of occasions. On numerous occasions, you exhibited violence towards your wife, accusing her of infidelity, and on one occasion even attempted to strangle her, as previously noted. According to the record, sir, you have a history of unstable or tumultuous relationships, particularly as it relates to women, your wife and the victim in this case, whom you subsequently killed. It is the opinion of this Panel, sir, that you have not participated in beneficial self-help and therapy programs. And according to our review of the previous decision, . . . the Panel specifically recommended to you, sir, that you participate in self-help programs. And it appears that since your arrival at Avenal State Prison, you have not taken advantage of that, sir. And also I would like to note for the record that there is a document in the file that also leads us to conclude that the reason you did not participate in any type of self-help program, particularly as it relates to psychology and so forth, is because there is a statement in the record that indicates that you stated, psychology is not an exact science. Which either leads us to believe that either you believe you are not in need of further self-help or you see no reason why you need to do that.

The Board also noted that the February 2004 psychological report was not totally supportive of Crisciones release. Though the Board did not receive any written notices of opposition to release, the Board acknowledged that the Santa Clara County District Attorney, who appeared at the hearing, spoke out against granting parole to Criscione.

Finally, the Board indicated that, during the hearing, Criscione made a number of statements which caused it to conclude that he has not expressed the appropriate remorse for this crime, in that not once did you specifically express remorse for the victim or her family. And you further indicated that at one point, the victims mother visited you and when I asked you about that visit, you indicated that you were sorry that it occurred. Not sorry that you committed this offense, but youre sorry that it occurred. Consequently, the Board concluded that Criscione had failed to express appropriate remorse for his crime and does not have insight into why he committed the offense. Though Criscione claims the victim attacked him first with a knife, after strangling the victim into unconsciousness, Criscione placed her in the bathtub where she drowned. It was the Boards opinion that Criscione minimizes his responsibility for the crime and needs further therapy to face, discuss, understand and cope with stress in a non-destructive manner.

The Board concluded by commending Criscione for his prison discipline record, his vocations, and the laudatory chronos he had received while incarcerated.

B. Crisciones petition for writ of habeas corpus

After the 2004 denial, Criscione successfully petitioned the superior court for a writ of habeas corpus. As noted above,[6] we reversed the superior courts order granting habeas relief and remanded for further proceedings on Crisciones allegation in his petition that the Boards decision to deny him parole was not supported by some evidence.

Following remand, Criscione filed a supplemental petition and, after further briefing by both sides, the superior court again granted habeas relief by order dated December 17, 2007. In its order, the superior court found merit in Petitioners claim that, because he has served 25 years on his fifteen to life sentence, when the Board weighed the timing and gravity [citation] of his commitment offense the Board was required to weigh it against the minimum elements of a first degree murder. This claim was significant, in the superior courts view, because while there is some evidence Petitioners crime is egregious based on the elements of a second degree murder, there is no evidence, in this record, that Petitioners crime is anything more than that minimally necessary for a first degree conviction. Accordingly, the Board erred in using Petitioners life crime as a basis to deny parole. The superior court directed the Board, in any and all of Crisciones future parole hearings, to examine and compare the timing and gravity of his crime as though it were a first degree murder. The superior court also prohibited the Board from denying parole to Criscione, based in any part on the commitment offense, unless it is explained why the commitment offense is especially heinous, atrocious or cruel for a first degree conviction.

The superior court ordered the Board to conduct a new hearing within 35 days, but cautioned that, in the absence of new evidence, the Board could not repeat any finding [the superior court] found invalid.

II. DISCUSSION

The Warden contends that the trial court erred in finding there was not some evidence to support the Boards decision to deny parole to Criscione. In addition, the Warden contends that the trial courts order impermissibly restricts the Boards discretion by requiring it to compare Crisciones crime to instances of first degree murder at the new hearing.

A. The statutory and regulatory framework for parole hearings

Penal Code section 3041, subdivision (b), provides that the Board shall set a parole release date unless [the Board] determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual . . . . Parole considerations applicable to life prisoners convicted of murder are contained in the regulations, which provide that, before setting a parole date, the Board shall first determine whether the life prisoner is suitable for release on parole. (Cal. Code Regs., tit. 15, 2402, subd. (a).)^[7] Regardless 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. (Ibid.)

In determining whether the prisoner is suitable for release, the Board considers a list of circumstances tending to show both unsuitability and suitability. Circumstances tending to show unsuitability include that the inmate committed the offense in an especially heinous, atrocious or cruel manner, possesses a previous record of violence, has an unstable social history, has previously sexually assaulted another individual in a sadistic manner, has a lengthy history of severe mental problems related to the offense, and has engaged in serious misconduct while in prison. ( 2402, subd. (c)(1)-(6).)

Pertinent factors favoring suitability are the lack of a criminal record or history of committing crimes as a juvenile ( 2402, subd. (d)(1)), a stable social history (id.,subd. (d)(2)), acts demonstrating that the prisoner understands the nature and magnitude of the offense (id., subd. (d)(3)), evidence that the prisoner committed the crime as the result of significant stress in his life (id.,subd. (d)(4)), realistic plans for the future (id.,subd. (d)(8)), and participation in institutional activities that indicate an enhanced ability to function within the law upon release (id.,subd. (d)(9)).

B. The scope and standard of review

In In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz), the Supreme Court explained that parole release decisions entail the Boards attempt to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts. Such a prediction requires analysis of individualized factors on a case-by-case basis and the Boards discretion in that regard is almost unlimited. (Ibid.) Although the Boards discretion is exceedingly broad, it is circumscribed by the requirements of procedural due process. (Ibid.; Cal. Const., art. I, 7, subd. (a).)

Judicial review of the Boards parole decisions is very limited. [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. (Rosenkrantz, supra, 29 Cal.4th at p. 658, italics added.) [U]nder the statute and the governing regulations, the circumstances of the commitment offense (or any of the other factors related to unsuitability) establish unsuitability if, and only if, those circumstances are probative to the determination that a prisoner remains a danger to the public. It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public. (In re Lawrence, supra, 44 Cal.4th at p. 1212.) While the Board . . . may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoners pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoners dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety. (Id. at p. 1214.)

To support the Boards finding of current dangerousness, [o]nly 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. (Rosenkrantz, supra,29 Cal.4th at p. 677.) If some of the Boards reasons for denial are not supported by the evidence, so long as the reasons that are supported by some evidence constitute a sufficient basis for the Boards decision, the decision satisfies the requirements of due process. (Ibid.)

C. Analysis of the Boards 2004 decision

With these rules in mind, we proceed to our review of the Boards 2004 decision. Because the trial courts findings were based solely upon documentary evidence, we independently review the record. (Rosenkrantz, supra, 29 Cal.4th at p. 677.)

i. The commitment offense

The pertinent regulations specify that one of the circumstances tending to show unsuitability for parole is where the prisoner committed the offense in an especially heinous, atrocious, or cruel manner. ( 2402, subd. (c)(1).) Evidence that would support such a finding includes evidence that the offense was carried out in a dispassionate and calculated manner, or in a manner which demonstrates an exceptionally callous disregard for human suffering. (Id., subd. (c)(1)(B), (c)(1)(D).)

In this case, Board found that the crime was especially heinous, atrocious, or cruel because it was carried out in a cruel and callous manner and demonstrated an exceptional [sic] callous disregard for human suffering since the victim was strangled until she was unconscious, then placed in a partially-filled bathtub where she drowned. We agree. Whether Criscione deliberately placed the unconscious victim in the partially-filled tub or simply left her there to drown after strangling her, his action or inaction in this regard was exceptionally callous.

ii. Prior history of violence and unstable social history

Two other circumstances which support a finding of unsuitability for parole relate to whether or not the prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age and whether the prisoner has a history of unstable or tumultuous relationships with others. ( 2402, subd. (c)(2), (c)(3).) The Board found that both of these circumstances applied to Criscione.

In denying parole, the Board noted that Criscione was often violent towards his wife, even attempting to strangle her on one occasion, and that Crisciones relationship with the victim was similarly tumultuous. The victims mother testified at Crisciones trial that Criscione and her daughter frequently had [v]iolent arguments. (People v. Criscione, supra, 125 Cal.App.3d at p. 281.) The week before the murder, for example, Criscione accused the victim of infidelity and, as punishment for that, cut off her hair. (Ibid.)

iii. Lack of insight

The Board also found that Criscione was not suitable for parole because he had failed to participate in self-help and therapy since his previous parole hearing, even though the panel at that prior hearing had expressly directed that he do so. According to the Board, Criscione had failed to express appropriate remorse for his crime and did not have insight into why he committed the offense; instead, the Board believed that Crisciones statements about the crime tended to minimize his responsibility and that he needed further therapy to face, discuss, understand and cope with stress in a non-destructive manner. As an example, the Board noted in its decision that Criscione did not, during the parole hearing, say he was sorry he committed this offense, but instead said he was sorry that it [i.e., the crime]^[[8]^]occurred. (Italics added.)

The Board indicated that the 2004 psychological report was not completely supportive of release. The report related that Crisciones ex-wife accused him of beating her on numerous occasions and even choking her on several occasions. In response to this, Criscione acknowledged that there were numerous arguments in the marriage, but minimized the violence. The report found that it was difficult to assess Crisciones potential for violence in the community if released, because the only violent episodes reported were in the context of heterosexual relationships, which he has not had access to in the past 25 years. However, the report concluded that Criscione would be a reasonable candidate for a high controlled parole, subject to monitoring for any relationship conflicts or hints of domestic violence.

Criscione admitted, through his attorney, that he had not participated in any self-help since his previous parole hearing because he thought that he had basically fulfilled the requirements that the Board had expected of him in the self-help area and because there were limited self-help opportunities due to program cutbacks.

iv. Connection between listed factors and current dangerousness

In the present case, although the Board concluded that Criscione would pose an unreasonable risk of danger to society or a threat to public safety if released from prison, the Board failed to articulate any nexus between the factors described above and this ultimate conclusion. Where there is some evidence to support the factors upon which the Board relied, we would ordinarily uphold the denial of parole so long as those factors individually or collectively justify the Boards conclusion. (Cf. Rosenkrantz, supra, 29 Cal.4th at pp. 682-683.) But where it is not clear that the Board would have reached the same conclusion based solely upon the supported factors, the appropriate remedy is to direct the Board to reconsider the prisoners parole suitability in accordance with the discretion allowed by law. (In re DeLuna (2005)126 Cal.App.4th 585, 598.) Provided that the Board considers all relevant, reliable evidence and is able to articulate a rational nexus between its findings and a decision to deny parole, the manner in which the factors interrelate and the weight to be given to each are considerations for the Board. (Rosenkrantz, supra,29 Cal.4th 616, 656.)

Here, the Board did not have benefit of Lawrence and Shaputis and the Boards decision does not clearly indicate that it considered the connection between the factors outlined in its decision and its conclusion that Criscione would present an unreasonable risk to public safety if released. In these circumstances, we cannot presume that the Board applied the evidentiary standard as clarified by Lawrence or that it would have reached the same conclusion had it done so. Accordingly, remand is warranted.

III. Disposition

The matter is remanded to the superior court with directions to modify its order granting Crisciones petition for habeas corpus. The superior court shall strike all but the first paragraph of its order and insert the following:

The Board of Parole Hearings is directed to vacate its 2004 parole decision and to hold a new hearing and issue a new decision within 60 days of this order. The Board shall proceed in accordance with due process in light of In re Lawrence (2008) 44 Cal.4th 1181 and In re Shaputis (2008) 44 Cal.4th 1241, taking into account all relevant regulating factors. The Board, in its discretion, may consolidate this 2004 parole review matter with the 2007 parole review and conduct a single rehearing. (See In re Criscione H032680, filed concurrently herewith.)

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] The Board of Prison Terms was abolished effective July 1, 2005, and was replaced by the Board of Parole Hearings. (Pen. Code, 5075, subd. (a).) Depending upon the context, Board, as used here, refers to the parole agency or to the panel that conducted the hearing. This is the second appeal involving Crisciones 2004 Board hearing. In a prior nonpublished opinion, we reversed the superior courts previous order granting habeas relief and remanded for further proceedings on Crisciones allegation that the Boards decision to deny him parole was not supported by some evidence. (In re Arthur Sam Criscione (Oct. 10, 2006, H029664).)

[2] Even though the habeas petition concerns the action of the Board, the respondent is the warden of the prison where the inmate is incarcerated. (Pen. Code, 1477.)

[3] Based on this conclusion, we need not address the Wardens additional claim of error, i.e., that the superior courts order impermissibly restricts the Boards discretion by requiring it to compare Crisciones crime to instances of first degree murder at his new parole hearing. We note, however, that the Lawrence decision also reaffirmed that comparative analysis of an inmates crime is not required by statute. (Lawrence, supra, at p. 1217.)

[4] The following facts are taken from the published decision on Crisciones direct appeal, People v. Criscione (1981) 125 Cal.App.3d 275, a copy of which was before the Board at Crisciones 2004 hearing.

[5] Form 128-A, a Custodial Counseling Chrono, documents incidents of minor inmate misconduct and the counseling provided. (Cal. Code Regs., tit. 15, 3312, subd. (a)(2).) Misconduct that is believed to be a violation of law or is not minor in nature is reported on CDC Form 115, a Rules Violation Report. (Id., subd. (a)(3).)

[6]Ante, footnote 2.

[7] Hereafter, all undesignated section references and all further references to regulations are to title 15 of the California Code of Regulations.

[8] In his opening brief, the Warden asserts that Criscione said at his parole hearing he was sorry the visit [with the victims mother] occurred. This is incorrect. The relevant portion of the Boards decision reads, as follows: And you further indicated that at one point, the victims mother visited you and when I asked you about that visit, you indicated that you were sorry that it occurred. Not sorry that you committed this offense, but youre sorry that it occurred. The second sentence makes clear that the Board understood Criscione to be saying he was sorry the offense had occurred, not the visit with the victims mother.