In re Sauers

Filed 9/26/06 In re Sauers CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Petitioner James A. Sauers is serving a term of 15 years to life following his 1982 conviction for second degree murder. In 2004, respondent Board of Prison Terms (now Board of Parole Hearings, hereafter “Board”)[1] found, based on the facts of the crime and other criteria, that petitioner was not “suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison.” (See Cal. Code Regs., tit. 15, § 2402, subd. (a).) It therefore denied parole suitability and deferred reconsideration for three years. Petitioner challenged Board’s decision by filing a petition for writ of habeas corpus in superior court. The superior court granted the petition and ordered Board to hold a new suitability hearing. It reasoned that, because petitioner has served time beyond the matrix for second degree murder and near or beyond the matrix for first degree murder, due process of law required Board to find some evidence that petitioner’s “acts were more than those amounting to the elements of first degree murder.”^[2] Board appealed, and we granted its petition for a writ of supersedeas to stay the superior court’s order pending the appeal. Board contends that the superior court erroneously (1) required it to use first degree murder elements to examine parole suitability for a prisoner convicted of second degree murder, and (2) granted the petition because Board may deny parole suitability based on the facts of the crime alone and the record contains some evidence to support the denial in this case. We agree with Board. We therefore reverse the order granting the petition and direct the superior court to enter an order denying the petition. (See In re Rosenkrantz (2002) 29 Cal.4th 616, 652 (Rosenkrantz).)

background

During an argument with his wife in the family home, petitioner left and went to his pickup truck to retrieve a semi-automatic rifle. As he did so, he heard his wife screaming that he was going to kill her. He got the gun and returned to the house. His wife had locked herself in the bathroom. Petitioner smashed the rifle butt through the bathroom door. He then poked the gun barrel through the hole and shot his wife eight times (five times in the head and neck). His nine- and four-year-old daughters witnessed the murder.

To support its principal adverse-suitability finding, Board explained: “The offense was carried out in a very calculated manner in that [petitioner] went out to his vehicle to retrieve a gun and came back into the house with it. The victim was shot eight times during the offense, so she was abused, and the offense was carried out in a manner which demonstrated a total callous disregard for human suffering. And this goes to the fact that the wife was fearful and was screaming that he was going to kill her when she saw [petitioner] going back out to the pickup, retrieving a gun, and coming back into the house. And as she ran into the bathroom and closed herself in the bathroom out of fear, the suffering that she was doing emotionally at that time would have been exceptional. And then the disregard for human suffering in committing this crime in the presence of his two daughters who were present at the scene and witnessed this and the trauma that has been inflicted on their lives as a result of that.”

Board then went on to cite other factors such as (1) petitioner’s trivial motive given that petitioner could have gone to his pickup truck and driven away, (2) petitioner’s history of unstable relationships and failure to participate in therapy programs (and declining to be interviewed for a 1995 psychological or psychiatric report), (3) inconsistent medical reports (indicating petitioner posed a low threat for recommitting while he lacked insight into his behavior), (4) petitioner’s unacceptable parole plans (living with family in Texas but no plan for living in California), and (5) opposition from the District Attorney and victim’s family. It did commend petitioner on his prison education (GED and college classes), work (mechanic, associate warden clerk, offset printer), discipline-free record, and participation in some group therapy. But it concluded that “all of the positive factors they do not outweigh the factors of . . . unsuitability.” It then reiterated the facts about the nature of the offense, trivial motive, and unstable relationships. It concluded: “Therefore longer period of observation and evaluation of the prisoner is required before the Board should find the prisoner suitable for parole. We’re asking that the prisoner remain disciplinary-free. And participate in whatever self-help and whatever therapy that might be available. And to cooperate with the clinicians in the completion of a new clinical evaluation. I think there are things in perhaps the relationship in the background that have not been explored and the insight is one of the biggest factors as to why this crime was committed.”

The petition alleged that Board erred by denying parole suitability without some evidence in support. It disagreed that petitioner’s crime demonstrated a total callous disregard for human suffering and pointed to evidence that petitioner himself called the police and was in a state of mental breakdown. It disagreed that petitioner’s motive was inexplicable and pointed to evidence that petitioner was upset because his wife was having an affair and mistreating the children. It disagreed that petitioner had a history of unstable relationships and pointed out that (1) petitioner had participated in self-help therapy, and (2) psychological reports indicated that petitioner was ready for parole. It asserted that petitioner had realistic plans for the future. It argued that the opposition to his parole from the District Attorney and the victim’s family was an insufficient reason to deny parole suitability. And it generally argued that the Board had failed to consider substantial evidence supporting suitability.

The superior court issued an order to show cause that states the following: “While there may be ‘some evidence’ that Petitioner’s crime is more egregious than other second degree murders, such is no longer the issue because Petitioner has served 22 years and now, with custody credits, is within or beyond the matrix for first degree murders. The examination of the record must be for ‘some evidence’ that the crime is worse than most other instances of first degree murder. . . . [I]t is settled law that a finding of exceptionality must be made by comparison to other instances of the crime being punished. [Citations.] When a person such as Petitioner has surpassed the maximum matrix for second degree and is, for all practical purposes, being punished as though the crime were first degree, then due process requires that further findings of exceptionality must be based on a comparison of his crime to instances of first degree murder. Without such findings, persons who were convicted of second degree murder would be in the anomalous position of being in a worse situation than those who were convicted of first degree murder. (See Justice Moreno’s concurrence in Rosenkrantz, supra, 29 Cal.4th at pp. 689-690.) A first degree murder that is no more egregious than other first degree murders, and therefore could not be grounds for parole denial once the matrix is reached, will of course be more egregious than second degree murders. In short, whereas a person convicted of second degree can be denied parole if their crime can reasonably be characterized as first degree (except where there is a plea stipulation), once a person has served the time applicable for first degree, a finding of exceptionality requires evidence of special circumstances.”

On the basis of the parties’ papers without holding an evidentiary hearing, the superior court concluded: “As outlined in the order to show cause, Petitioner has spent so much time in prison that he is effectively being punished for first degree murder even though the jury found the crime to be only of the second degree. For the Board to deny him parole based on the facts of the crime, the Board is now required to point to evidence that his acts were more than those amounting to the elements of first degree murder. They did not do so. Instead the Board focused on what it characterized as premeditation, deliberation, and/or malice. As this is minimally necessary for a first degree murder conviction, which Petitioner is effectively being punished for, the Board did not articulate valid reasons that the crime still shows Petitioner’s unsuitability.” It ordered: “[T]he petition for a writ of habeas corpus is granted. The matter is remanded to the Parole Board with directions to conduct a new hearing in accordance with due process as outlined above.”

threshold issues

Petitioner resists this appeal at the threshold by arguing that it is moot because his consideration for parole suitability must go back to Board for reconsideration. There is no merit to this claim. As the case now stands, petitioner’s future suitability hearings will be governed by the superior court’s determination that Board must use first degree murder elements instead of second degree murder elements. In view of this fact, we conclude that the issues presented in this appeal are not moot.

Petitioner also challenges Board’s three-year deferral order as an abuse of discretion. Assuming that the point is reviewable on Board’s appeal, we summarily reject the challenge. Petitioner did not raise this issue in his petition (nor did the superior court rule on such an issue). It is axiomatic that the pleadings in a habeas corpus proceeding define the issues and issues not raised in the pleadings need not be addressed. (Board of Prison Terms v. Superior Court (2005) 130 Cal.App.4th 1212, 1235.)

parole suitability

“When considering parole for an indeterminate life inmate, the Board first determines suitability for parole. If it finds the inmate suitable, the Board establishes a parole release date. [Citations.] Conversely, if the Board concludes that public safety requires a lengthier period of incarceration, parole will be denied. [Citations.] In making this determination, the Board considers ‘[a]ll relevant, reliable information available,’ including the circumstances of the inmate’s social history, past and present mental state, past criminal history, the commitment offense(s), the inmate’s attitude toward the crime, and any other information that bears on the inmate’s suitability for release. [Citation.] If the inmate is found unsuitable and parole is denied, the Board must conduct subsequent parole consideration hearings annually.”[3] (In re Burns (2006) 136 Cal.App.4th 1318, 1325-1326.)

“Under the Board’s regulations, ‘Circumstances Tending to Show Unsuitability’ for parole include ‘The prisoner committed the offense in an especially heinous, atrocious or cruel manner.’ [Citation.] When determining whether the offense was especially heinous, atrocious or cruel, the Board considers several factors, including one that is relevant here: ‘. . . The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering.’ [Citation.]”[4] (In re Burns, supra, 136 Cal.App.4th at p. 1326.)

“In Rosenkrantz, the Supreme Court recognized the nature of the commitment offense alone may be a sufficient basis for denying a parole application. [Citation.] The court, quoting In re Ramirez (2001) 94 Cal.App.4th 549, 570, stated, ‘ “a life term offense or any other offenses underlying an indeterminate sentence must be particularly egregious to justify the denial of a parole date.” ‘ [Citation.] The Rosenkrantz court also stated, ‘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.’ [Citation.]“ (In re Fuentes (2005) 135 Cal.App.4th 152, 160.)

In the case of In re Dannenberg (2005) 34 Cal.4th 1061, the court rejected the notion that an inmate serving an indeterminate sentence has a vested right to have his sentence fixed for any period less than the maximum sentence provided by statute and clarified “that the circumstances of the prisoner’s offense alone may constitute a sufficient basis for denying parole, where the violence or viciousness of the prisoner’s crime is ‘more than minimally necessary to convict him [or her] of the offense for which he [or she] is confined.’ [Citation.]” (Board of Prison Terms v. Superior Court, supra, 130 Cal.App.4th at p. 1232.)

Here, petitioner was convicted and confined for second degree murder. Thus, Board could justify its suitability denial by relying on evidence that the circumstances of petitioner’s offense exceeded the minimum elements of second degree murder. The superior court’s rejection of Board’s decision on the ground that the circumstances did not exceed the minimum elements of first degree murder is therefore erroneous.

parole suitability denial

“The Board’s ultimate decision regarding parole suitability is subject to limited judicial review under the ‘ “some evidence” ‘ standard. [Citation.] The ‘ “some evidence” ‘ standard of review is ‘extremely deferential.’ [Citation.] The court may not weigh the evidence, resolve conflicts in the evidence, or consider whether the evidence establishing suitability for parole ‘far outweighs’ the evidence showing unsuitability. [Citation.] In short, the court may not substitute its own judgment for that of the Board. ‘[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.’ [Citation.]” (Board of Prison Terms v. Superior Court, supra, 130 Cal.App.4th at pp. 1232-1233.)

The “ ‘some evidence’ “ standard was derived from previous decisions of the California Supreme Court and the appellate courts that involved review of Board decisions. (See Rosenkrantz, supra, 29 Cal.4th at pp. 655-658.) In determining the proper standard of review for a Board decision rescinding a parole date, our Supreme Court ruled, “While the [B]oard cannot rescind a parole date arbitrarily or capriciously, it does not abuse its discretion when it has some basis in fact for its decision . . . the [Board] must strike ‘a balance between the interests of the inmate and of the public.’ [Citation.] If it is to accomplish this delicate task, it must operate with broad discretion and not be ‘subject to second-guessing upon review.’ [Citation.] Accordingly, we hold that due process requires only that there be some evidence to support a rescission of parole by the [Board].” (In re Powell (1988) 45 Cal.3d 894, 904; see also In re Ramirez, supra, 94 Cal.App.4th at p. 564 [“The Board’s decision should not be disturbed unless it has acted arbitrarily or capriciously”].)

The California Supreme Court’s decision in Powell was based in part upon a United States Supreme Court decision, Superintendent v. Hill (1985) 472 U.S. 445, 455-456. Reviewing a state prison disciplinary board’s decision, the Supreme Court ruled “the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if ‘there was some evidence from which the conclusion of the administrative tribunal could be deduced . . . .’ [Citation.] Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” (Ibid., italics added.)

Again, as our Supreme Court clarified in Rosenkrantz, the “ ‘some evidence’ “ standard of review is “extremely deferential.” (29 Cal.4th at p. 665.) It is not comparable to the substantial evidence standard of review. (Ibid.) Only a “ ‘modicum of evidence’ “ is required to support a Board decision. (Id. at p. 664.) “Modicum” means “a small portion” or “a limited quantity.” (Merriam-Webster’s Collegiate Dict. (10th ed. 2000) p. 748.)

When, as here, the superior court rules on a habeas petition without conducting an evidentiary hearing, we independently review the documentary evidence on appeal. (Rosenkrantz, supra, 29 Cal.4th at p. 677.) However, “[r]esolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority” of the Board. (Ibid.)

Here, as the superior court acknowledged in its order to show cause, Board could have legitimately concluded that the violence or viciousness of the petitioner’s crime was more than minimally necessary to convict petitioner of second degree murder.

“Second degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional elements--i.e., willfulness, premeditation, and deliberation--that would support a conviction of first degree murder.” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 102, italics omitted.)

The record contains some evidence of premeditation. Petitioner interrupted an argument to (1) go outside his home, (2) retrieve a gun, (3) return inside the home, (4) search out a sheltered victim, (5) break down the victim’s shelter, and (6) repeatedly shoot the victim. These circumstances suggest a calculated attack. (See e.g., In re McClendon (2003) 113 Cal.App.4th 315, 321-322 [some evidence of premeditated attack where second degree murder prisoner had arrived at wife’s home wearing rubber gloves and carrying a handgun]; In re Morrall (2002) 102 Cal.App.4th 280 [some evidence of premeditated attack where second degree murder prisoner shot victim seven times].)

The record also contains some evidence that the offense was especially cruel and callous. In response to the victim’s screams that petitioner was going to kill her, petitioner shot the victim at close range eight times in front of his two young daughters because of marital differences. (See, e.g., In re Lowe (2005) 130 Cal.App.4th 1405 [second degree murder prisoner had entered asleep victim’s bedroom in the middle of the night and shot him five times in the head and chest because their relationship had become strained--egregious acts far more aggravated than the minimum necessary to sustain a second degree murder conviction]; In re DeLuna (2005) 126 Cal.App.4th 585 [second degree murder prisoner had a physical confrontation with victim in a bar, left the bar, retrieved a rifle, shot the victim in the mouth and, as the victim bled and walked around the parking lot, followed him and continued firing--acts can reasonably be characterized as especially cruel and callous].)

Petitioner points out that he has had seven unsuccessful suitability hearings. He relies on the case of In re Scott (2005) 133 Cal.App.4th 573, for the proposition that repeated reliance on the commitment offense without regard to or consideration of subsequent circumstances may run contrary to the rehabilitative goals espoused by the prison system and afoul of due process. (Id. at p. 595.) Scott states: “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 solely on the basis of the gravity of the commitment offense warrants especially close scrutiny. ‘[T]he gravity of the commitment offense or offenses alone may be a sufficient basis for denying a parole application, so long as the Board does not fail to consider all other relevant factors.’ “ (Id. at p. 595, fn. omitted, italics omitted.)[5]

Here, as we have noted, Board considered many factors in its decision and acknowledged those that were favorable to petitioner. It simply held that the circumstances of the commitment offense predominated. Though petitioner argues that all of the nonoffense factors are favorable to him (and it may be reasonable to interpret them favorably), we must resolve conflicting evidence and interpretations of evidence in favor of Board.

We decline to follow petitioner’s lead and examine his attack on each of Board’s adverse findings given that the circumstances of the commitment offense were paramount to Board. Two examples, however, will illustrate the second guessing that petitioner is asking us to do.

Petitioner insists that Board was wrong to conclude that he had an unstable social history evidenced by his two marriages. According to petitioner, the relationships divided because “it was the spouses whose actions led to the division in the relationships, as both were unfaithful.” We venture that most unstable or divided marriages have some element of mutual fault at the root. Petitioner’s lack of insight on this question undoubtedly motivated Board to observe the following: “[I]t would be helpful and therapeutic for [petitioner] to begin looking at how his need to control his environment, including the people in his environment, contributed to a deterioration of his marriages and to the final act of murdering his second wife. . . . Consequently, what would be more likely to occur if the [petitioner] does not progress any further with his understanding of himself and what motivates him, would be that he, if he were to get into a new relationship, would be more likely to over control that relationship as he did the previous ones to the detriment of the marriage, but not likely ending up in a violent act.”

Petitioner also joins with the superior court in quibbling with Board over Board’s statement that “the motive for the crime was unexplainable in relation to the offense, in that [petitioner] had been through an unhappy marriage previously and had simply filed for divorce and gotten out of the marriage.” According to petitioner, Board’s statement is “baffling” since “everyone concerned” knows that petitioner’s motive arose from his loss of emotional control that was produced by the victim’s infidelity. But petitioner interprets Board’s statement out of context. As we mentioned above, Board later clarifies that petitioner’s motive was unexplainable in the sense of being trivial rather than unknowable: “And the motive for the crime was very trivial in relation to the offense and that he simply could have gotten into his pickup and driven off instead of coming back into the house with a gun and killing his wife.” The regulations specifically recognize that an inexplicable or trivial motive for committing the offense tends to show that the commitment offense was committed in an “especially heinous, atrocious or cruel manner.” (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1).)

Board has made clear that the circumstances of the commitment offense were determinative. Since the gravity of the commitment offense alone may be a sufficient basis for denying a parole suitability application (so long as the Board does not fail to consider other relevant factors) and Board considered other relevant factors, Board’s decision must be upheld.

We are reviewing the discretionary actions of a separate branch of government that has far greater expertise and experience in dealing with determining public safety than do the courts. “Courts may not undertake an independent assessment of the merits of the parole decision, nor demand ‘substantial evidence’ . . . .” (In re McClendon, supra, 113 Cal.App.4th at p. 321.) The only question for us is whether there is some evidence to support Board’s decision. This standard requires only a modicum, or small portion, of evidence. As we have mentioned, there is certainly a modicum of evidence to support Board’s decision in this case.

disposition

The order granting the petition for writ of habeas corpus is reversed. The superior court is directed to enter an order denying the petition.

Premo, Acting P.J.

WE CONCUR:

Elia, J.

Duffy, J.

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[1] As of July 1, 2005, the Board of Prison Terms has been abolished and replaced by the Board of Parole Hearings. (See Pen. Code, § 5075, subd. (a).)

[2] The superior court also found error in Board’s secondary finding that petitioner’s motive for the crime was inexplicable or trivial. Board does not challenge this aspect of the superior court’s order.

[3] There are two exceptions to annual review. One is that the hearing may be deferred for up to five years if the inmate has been convicted of murder and Board finds that it is not reasonable to expect that parole would be granted at a hearing during the following years. (Pen. Code, § 3041.5, subd. (b)(2)(B).)

[4] “The factors described in the regulations are ‘general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to’ the judgment of the Board. [Citation.] Another circumstance tending to show unsuitability is ‘Unstable Social History. The prisoner has a history of unstable or tumultuous relationships with others.’ [Citation.] In addition to the nature of the commitment offense, the Board may consider any other information that bears on the inmate’s suitability for release.” (In re Burns, supra, 136 Cal.App.4th at p. 1326.)

[5] The difficulty with continual and sole reliance on the unchanging facts of a crime to deny parole suitability is that such reliance essentially converts an indeterminate sentence into a term of life without the possibility of parole. Federal cases have recently given close scrutiny to and found due process violations in parole suitability denials justified only by continued reliance upon the unchanging past facts. (See, e.g., Martin v. Marshall (N.D.Cal. 2006) 431 F.Supp.2d 1038 [habeas petition granted because sole justifications for fifth parole suitability denial were the circumstance of the offense and conduct prior to the offense]; Rosenkrantz v. Marshall (C.D.Cal. 2006) ___ F.Supp.2d ___, 2006 WL 2327085 [habeas petition granted because sole justification for seventh parole suitability denial was the egregiousness of the offense].)