In re Lee

Filed 10/25/07 In re Lee CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Petitioner Curtis Lee seeks a writ of habeas corpus to compel his release from prison. Petitioner alleges that the Governor improperly reversed his grant of parole by the Board of Parole Hearings (the Board). The Governor based his decision on the gravity of petitioners crime. Because the Governors conclusion that petitioners offense was an especially grave second degree murder is unsupported by some evidence in the record, we grant the petition for writ of habeas corpus. But we will not order petitioners release. Instead, we remand this case to the Board for further proceedings consistent with this opinion.

FACTS OF THE CRIME

Petitioner was 18 years old and just days away from his high school graduation when he was involved in a late night shooting in Oakland that resulted in his conviction for second degree murder and three counts of assault with a deadly weapon, all enhanced due to his personal use of a firearm.

The following facts describing petitioners crime are taken in their entirety from this courts prior opinion (People v. Lee (Jan. 27, 1989, A038374 [nonpub. opn.]) that affirmed his conviction.[1] [Petitioner] was driving home with his companions, Robert Turner, Tim Washington and the driver, Antoine Ware, when they passed [John] McDonald and his friends standing near the corner of 90th Avenue and East 14th Street. Eric Websters brother, Donnell, and others were standing nearby. Donnell and possibly Eric Webster were members of the 85th Street gang, whereas Turner, Washington and Ware were members of the rival 69th Street gang. As the car approached the group, Donnell and the driver, Ware, exchanged some words. Suddenly, several gunshots were heard. [Petitioner] and Turner both testified that Donnell screamed shoot at them, at which point Eric Webster shot at the car as they sped away.

A short distance later Ware stopped the car. [Petitioner], Washington and Turner got out, opened the trunk and retrieved weapons which Washington and Turner had placed in the trunk earlier. The three passengers returned to the car, and at Washingtons direction Ware drove looking for McDonald and his friends, believing that the shots came from McDonalds group. [Petitioner] and his companions came across the four youths walking near 87th and D Streets. Ware stopped the car and the three passengers exited and began shooting. One of the bullets hit McDonald in the head, killing him. The other three youths were not injured. The autopsy revealed that McDonald was killed by a bullet fired from a .45 caliber weapon. A slug found in a nearby apartment was a .38 caliber type. Turners gun was a .380 caliber automatic pistol. Washington used a .45 caliber handgun, which was probably the murder weapon. The .38 caliber slug could have been fired from [petitioners] .357 magnum.

In a taped statement to the police, [petitioner] admitted: I got out of the car. I shot at them. We shot at them. At trial, he testified that he fired because he was afraid and acted in self-defense. He intended only to scare the others off and that the only shots he fired were two or three shots into the air. (People v. Lee, supra, [nonpub. opn.] [typed opn. pp. 1-2].)

HISTORY OF PROCEEDINGS AND PETITIONERS INCARCERATION

Petitioner was convicted of the second degree murder following a jury trial. He had no prior criminal record, and would have been considered a suitable candidate for probation were he not ineligible due to his use of a firearm. He has been incarcerated for more than 22 years. Since his incarceration for the life offense, Mr. Lee has been disciplined nine times for rules violations, including possession of alcohol, possession of marijuana, refusing to submit to urinalysis, and disrespect to staff. He has also been counseled eight times for minor misconduct. The more serious disciplinary matters occurred in petitioners earlier years of incarceration and he has been free of any serious discipline for more than 10 years.

To his credit, however, Mr. Lee has made efforts while incarcerated to enhance his ability to function within the law upon release. He has participated in and completed several vocations, including Computer Refurbishing, Computer Repair, Computer Applications, Personal Computer Servicing, Trouble Shooting, Meter Usage, Refrigeration/Air Conditioning, and Screen Process Printing, and he has held a variety of skilled institutional jobs. He has also availed himself of an array of self-help and therapy, including Alcoholics Anonymous, Narcotics Anonymous, Victim Offender Reconciliation Group, Mens Violence Prevention, Life Plan for Recovery, Building for the Earthquakes of Tomorrow, and Tawheed Changing Faces. Likewise, Mr. Lee has received some favorable reports from correctional and mental health professionals over the years, has maintained seemingly supportive relationships with family and others, and has made realistic, confirmed plans to live and work in Alameda County upon release to parole.

The Board convened for the sixth time to consider petitioners suitability for parole on February 14, 2006, and found him suitable. Among the Boards observations were that the circumstances of petitioners involvement in the murder were not aggravated, there was some evidence from which to conclude he did not shoot the victim, he had avoided involvement with gangs and drugs during his youth, he had no juvenile record and had been a model prisoner. Pursuant to his constitutional authority, the Governor reviewed the Boards finding of suitability and reversed the Boards decision. In doing so, he concluded that the second-degree murder for which [Lee] was convicted was especially grave because his actions demonstrated that Mr. Lee premeditated on some level to murder Mr. McDonald. . . . The gravity of second-degree murder perpetrated by Mr. Lee alone is sufficient for me to conclude that his release from prison would pose an unreasonable public-safety risk at this time.

Petitioner challenged the Governors decision by writ of habeas corpus in the superior court and this court. The superior court denied relief. On April 12, 2007, we ordered the Governor to show cause why the relief sought by petitioner in his petition should not be granted. The Attorney General filed a return to the petition and petitioner filed a denial.[2] The matter is ready for disposition.

DISCUSSION

A. The Some Evidence Standard of Review

In re Rosenkrantz (2002) 29 Cal.4th 616, articulates the standard of review to be applied by the courts to a decision made by the Governor to reverse a grant of parole pursuant to the authority vested in him by article V, section 8, subdivision (b) of the California Constitution. There are a few fundamental precepts within the Rosenkrantz decision that in application guide our review. Article V, section 8(b), requires that a parole decision by the Governor pursuant to that provision be based upon the same factors the Board is required to consider. Due process of law requires that this decision be supported by some evidence in the record. 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 Governor. (In re Rosenkrantz, supra, at pp. 676-677.) The decision must also reflect the Governors individualized consideration of the specified criteria. (Id. at p. 677.) This some evidence standard of review has since been held to also apply to judicial review of decisions by the Board. (See In re Barker (2007) 151 Cal.App.4th 346, 365.)

The factors that guide the Boards (and therefore the Governors) consideration are set forth in Penal Code section 3041 and in regulations promulgated by the Board in California Code of Regulations, title 15, section 2402. We will not repeat all of them here because this case concerns only one of them. A prisoner may be considered unsuitable for parole based upon his commitment offense when: The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered 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).)

The gravity of a prisoners commitment offense has been characterized by the courts as an immutable factor of unsuitability because, along with the prisoners previous record of violence, it is one of two factors the prisoner cannot change. (In re Scott (2005) 133 Cal.App.4th 573, 594-595.) In In reRosenkrantz and In re Dannenberg (2005) 34 Cal.4th 1061, our Supreme Court stated that particularly egregious acts beyond the minimum necessary to convict the prisoner of the offense for which he is incarcerated may provide the basis for finding a prisoner unsuitable for parole due to his commitment offense. (In re Rosenkrantz, supra, 29 Cal.4th at pp. 682-683; In re Dannenberg, supra, at p. 1095.) But it is the Board or the Governors reliance upon a prisoners commitment offense as the only factor to deny parole that has proved to be the bugaboo in application of the some evidence standard by the reviewing courts.

Some courts apply the standard by reviewing the record to determine whether there is some evidence upon which the Governor or the Board could conclude release of the prisoner to parole would endanger public safety. (See In re Cooper (2007) 153 Cal.App.4th 1043; In re Barker (2007) 151 Cal.App.4th 346; In re Weider (2006) 145 Cal.App.4th 570; In re Elkins (2006) 144 Cal.App.4th 475; In re Lee (2006) 143 Cal.App.4th 1400; In re Scott, supra, 133 Cal.App.4th 573.) Other courts apply the some evidence standard more deferentially, and, without reaching whether the petitioner is a continuing threat to public safety, simply consider whether the record discloses some evidence in support of a factor relied upon by the Board or the Governor to deny parole. (See In re Jacobson (2007) 154 Cal.App.4th 849; In re Gray (2007) 151 Cal.App.4th 379; In re Andrade (2006) 141 Cal.App.4th 807; In re Fuentes (2005) 135 Cal.App.4th 152; In re Lowe (2005) 130 Cal.App.4th 1405; In re Honesto (2005) 130 Cal.App.4th 81; In re DeLuna (2005) 126 Cal.App.4th 585.) Our Supreme Court recently granted review in In re Lawrence, review granted September 19, 2007, S154018, apparently to sort out the tension between these two lines of authority. But in this case we need not enter the fray, because the Governors decision is unsupported by some evidence under even the most deferential application of the standard.

B. Did Petitioner Commit Murder in an Especially Heinous, Atrocious

or Cruel Manner?

The Governor reversed petitioners grant of parole because the second-degree murder for which he was convicted was especially grave because his actions demonstrated that [petitioner] premeditated on some level to murder Mr. McDonald. But as this court said in the decision affirming his conviction, petitioner was convicted of second degree murder (implied malice) as an aider and abettor. (People v. Lee, supra, [nonpub. opn.] [typed opn. p. 3].)

Because aiders and abettors may be criminally liable for acts not their own, cases have described their liability as vicarious. [Citation.] This description is accurate as far as it goes. But . . . the aider and abettors guilt for the intended crime is not entirely vicarious. Rather, that guilt is based on a combination of the direct perpetrators acts and the aider and abettors own acts and own mental state. (People v. McCoy (2001) 25 Cal.4th 1111, 1117.)[3] An examination of the facts is devoid of any evidence that petitioners actions show he premeditated murder.

The jury necessarily concluded that petitioner was aware that his conduct endangered life and that he acted deliberately in disregard of that danger. (People v. Watson (1981) 30 Cal.3d 290, 296-297, disapproved on another ground in People v.Sanchez (2001) 24 Cal.4th 983.) The Governors reference to petitioners actions as demonstrative of premeditation implies that petitioner was actually guilty of murder in the first degree irrespective of the jurys conclusion. (In re Rosenkrantz, supra, 29 Cal.4th at pp. 678-679.) Although the jurys verdict does not preclude the Governor from considering whether petitioner was guilty of a more serious offense (ibid.), there is simply no evidence in this record from which one can now conclude petitioner premeditated on some level to murder the victim.

In this context,  premeditation means considered beforehand. (CALJIC No. 8.20.) It implies reflection on the contemplated act and an intent to kill. (People v. Goldbach (1972) 27 Cal.App.3d 563, 569.) The slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, he decides to and does kill. (CALJIC No. 8.20.) Even though premeditation can happen quickly (People v. Mayfield (1997) 14 Cal.4th 668, 767), we cannot discern such premeditation in any account of petitioners involvement in the murder of McDonald.

There are no facts that indicate petitioner planned or set out intending to shoot a rival group on the night of the murder. True enough, the shooters retrieved guns from the trunk of the car they were riding in, but there is no evidence that petitioner placed them in the trunk or knew they were there when he got into the car. The only evidence on this point seems to be that other passengers put the guns in the trunk at some earlier time. We cannot conclude that petitioners motive for shooting was particularly trivial or inexplicable. Petitioner and his cohorts heard gunshots and petitioner thought someone was shooting at them. Neither could petitioners association with his criminal cohorts be reasonably used against him. While the others were members of the 69th Street gang, petitioner was not. The only evidence that could possibly warrant an inference that petitioner harbored some degree of premeditation is the fact that the car he was riding in escaped the first round of shooting before petitioner and his cohorts returned to the scene and shot at the victims. But petitioner was not driving and one of petitioners cohorts, not petitioner, directed the driver to return to the scene. Perhaps the most compelling fact of all is that petitioner did not personally kill or injure anyone. There is no evidence of petitioners premeditation. (See People v. Orabuena (1976) 56 Cal.App.3d 540, 545-546 [case discussing evidence of premeditation in a similar situation].)[4]

A prisoners crime constitutes a factor tending to demonstrate unsuitability for parole, where the prisoner committed the offense in an especially heinous, atrocious, or cruel manner. (In re Rosenkrantz, supra, 29 Cal.4th at p. 678.) The facts of petitioners crime provide no evidence to support the conclusion that his conduct was premeditated on any level, and no evidence that he did anything more than minimally necessary toconvict him of second degree murder. (In re Dannenberg, supra, 34 Cal.4th at p. 1095.) Petitioners actions do not demonstrate the he premeditated McDonalds murder, and petitioners participation in his commitment offense does not warrant a finding that he is unsuitable for parole.

C. Petitioners Case Must be Remanded to the Board for Further Proceedings

Whether in judicial review of a decision by the Board or of the Governors exercise of his power under article V, section 8, subdivision (b) of the California Constitution, the applicability of the some evidence standard is rooted in principles of separation of powers. (In re Rosenkrantz, supra, 29 Cal.4th at pp. 652-667.) Thus, our review must take care not to usurp the authority of the executive branch. [J]udicial review of a Governors parole decisions made pursuant to article V, section 8(b), to determine whether they are supported by some evidence related to the specified factors governing parole, does not usurp the inherent and primary authority of the executive branch over parole matters, does not materially impair such authority, and does not control a Governors exercise of discretion. Any effect of judicial review upon the executives parole decisions is merely incidental to the exercise of that function and therefore does not violate the separation of powers doctrine. (Id. at p. 667.)

These same considerations, and practical ones as well, inform our decision that the proper result in this case is to vacate the Governors decision and remand this matter to the Board for further proceedings. If the decisions consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoners petition for writ of habeas corpus and should order the Board [or the Governor] to vacate its decision denying parole and thereafter to proceed in accordance with due process of law. (In re Rosenkrantz, supra, 29 Cal.4th at p. 658; accord, In re Capistran (2003) 107 Cal.App.4th 1299; In re Smith (2003) 114 Cal.App.4th 343; cf. In re Smith (2003) 109 Cal.App.4th 489.) The Governors decision was unsupported by any evidence that the facts of petitioners crime were anything more than minimally necessary to convict him of second degree murder. While all the other factors relevant to parole consideration indicated petitioners suitability for parole, more than 15 months have passed since his case was before the Board and the Governor.

We will not control the exercise of the executive branchs discretion in this case. If the factors indicating petitioners suitability for parole have remained favorable, and the factors indicating his unsuitability remain unchanged from the Boards 2006 review, we anticipate petitioner will again be found suitable by the Board. If he is and his parole factors are unchanged, it is highly unlikely the Governor could reverse a finding of suitability on such a record. (See In re Caswell (2001) 92 Cal.App.4th 1017, 1031.) But we will not presume or preordain the outcome of further proceedings. Petitioners suitability could be affected over the passage of time by his behavior in prison or any previously undisclosed facts that have come to light that indicate suitability or unsuitability under the regulations. (Ibid.) It appears petitioner was scheduled for such a parole consideration hearing this past February. The executive branch should decide the ultimate question of whether petitioner remains ready for parole, not us.

CONCLUSION

The petition for writ of habeas corpus is granted. The decision of the Governor to reverse the Boards 2006 finding that petitioner is suitable for parole is vacated. This case is remanded to the Board to allow the Board to convene, as soon as possible, a new parole consideration hearing for petitioner in accordance with this opinion.

_________________________

Siggins, J.

We concur:

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McGuiness, P.J.

_________________________

Pollak, J.

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[1] We take judicial notice of our previous unpublished opinion. (Evid. Code,  452, subd. (d).)

[2]The court has accepted and filed Exhibit L to the appendix to petitioners denial.

[3] In People v. McCoy, supra, 25 Cal.4th 1111, the court considered the independent intent of an aider and abettor convicted of a more serious crime than the perpetrator under the natural and probable consequences doctrine.

[4] In the return to the order to show cause, the Attorney General argued that: the Governor relied on the Alameda County District Attorneys opposition to parole. Public input regarding a prisoners suitability may be influential and even decisive in appropriate cases . . . the Governor found in his independent review that the District Attorneys opposition was valid. While public opinion is often relevant to a release decision, it is not relevant to this one. Our review of the Governors decision leads us to the unmistakable conclusion that, apart from a passing reference to the gravity of petitioners offense, the Governor did not rely upon the district attorneys objections when he reversed the Boards grant of parole. The Governor did not consider petitioner to be unsuitable for release due to his account of the shooting or because his post release plans for housing and employment were unsettled. Petitioners role in the crime and his post release plans were explained to the satisfaction of the Board. Our review of the record indicates they were also explained to the satisfaction of the Governor.