In re Sheppard

Filed 8/29/07 In re Sheppard 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Irving Sheppard, a California state inmate, was convicted by a jury of first degree murder in 1981 and again in 1991. Both times he was sentenced to a term of 29 years to life in state prison. Appellant, the acting warden of the correctional institution where Sheppard is incarcerated, appeals from an order of the Santa Clara County Superior Court granting habeas relief to Sheppard.[1]

In Sheppard's habeas corpus petition he challenged the Board's August 11, 2004 decision denying him parole. Previously, Sheppard filed a habeas petition challenging the Board's 2001 decision to deny him parole. On August 6, 2003, the superior court granted the petition.[2] This court reversed the superior court's order with directions that the Board conduct a new suitability hearing "using only the factors deemed appropriate by the relevant statutes and regulations and in accordance with the requirements of due process."[3] (In re Sheppard I, unpublished opinion: H026322.)[4]

Thereafter, on August 11, 2004, in accordance with the remand order from this court and the corresponding order from the superior court, the Board held a new suitability hearing. Again, the Board denied Sheppard parole because "he would pose an unreasonable risk of danger to society or threat to public safety" if released. Sheppard filed a writ of mandate challenging the Board's 2004 denial of parole, and requested the Board be held in contempt for failure to follow the decision of this court. The superior court construed the petition to be of habeas corpus and an affidavit of contempt. After the parties filed all the pleadings in the case, on August 2, 2006, Judge Condron granted the writ of habeas corpus. Judge Condron ordered the Board to set a date for a new hearing to be held within 30 days at which the Board "shall obey every order and directive contained in this order, the opinion and order of the Sixth District (H026322) and the original Superior Court order insofar as it was affirmed by the Sixth District."

The Board filed a timely notice of appeal and a petition for writ of supersedeas. On December 21, 2006, this court granted the writ of supersedeas. In so doing, we stayed the order of the superior court directing the Board to hold a new suitability hearing until the final determination of this appeal.

On appeal, the Board contends that its decision complies with due process requirements because it conducted an individualized analysis and its decision is supported by some evidence. The superior court's order restricting the Board's discretion when determining Sheppard's suitability for parole, and granting the petition without deciding whether two relevant factors constituted some evidence in support of unsuitability is contrary to law and should be reversed. Finally, Sheppard's challenge to the vagueness of Regulation section 2402[5] is without merit because this challenge is appropriate when addressing a criminal statutenot a regulation regarding parole suitability.

Background Facts

The Life Crime[6]

Sheppard was convicted of the first degree murder of a fellow drug dealer who owed him money. According to the probation report prepared for Sheppard's 1991 sentencing hearing, the victim owed Sheppard $5600. The police found the victim with four gunshot wounds to the head. Jamal Sampson, a neighbor of the victim, told police that the victim had cheated Sheppard in a drug deal, that Sheppard had threatened to get the money out of the victim "one way or another," and that Sheppard was at the apartment building on the night of the victim's death.

Sheppard was carrying a handgun and told Sampson that he intended to harm the victim. The gun used to shoot the victim was found in a hidden compartment of a car registered to Jamal Sampson, which was actually owned by Sheppard. Sheppard's fingerprints were found on the murder weapon and the newspaper in which the gun was wrapped. He flew to South Carolina the day after the shooting. Sheppard claimed he was not present during the shooting and expressed the belief that the victim was likely shot while someone, perhaps Jamal Sampson, was stealing the drugs that Sheppard had given to the victim to sell.

Again, according to the probation report, on the night of the murder, the victim's neighbor heard what he thought to be four rapid-fire gunshots coming from the victim's apartment followed by a "thump."

Sheppard's Parole Suitability Hearing

At his parole suitability hearing Sheppard opted not to discuss the commitment offense, but he stipulated to the findings of the trial court. Sheppard accepted full responsibility for the crime. He told the Board that the victim would not have been killed if he had not supplied him with drugs. Sheppard accepted that his drug dealing activities led to the victim's death.

The Board reviewed Sheppard's criminal history with him. The record indicates that at age 10, Sheppard stole a bicycle. At age 13, he stole a car and was sent to training school. Thereafter, at 17 he was arrested for grand larceny, stolen property and unauthorized use of a vehicle. He was placed on probation.[7] In terms of adult convictions, at age 18 Sheppard was arrested for theft. Sheppard was given the opportunity to join the military. While he was in the army he committed a robbery and was sentenced to Fort Leavenworth. Thereafter, he received a "bad conduct discharge." At age 20, Sheppard was fined $50 for menacing. Before he reached his 28th birthday, Sheppard was convicted of possession of drug paraphernalia and two counts of possession of a controlled substance and the life crime.

The Board reviewed Sheppard's personal history with him. Sheppard's personal history indicates that he was born on May 11, 1953. His mother raised Sheppard in New York City. His mother, sister and stepbrother still live there. Sheppard has a 25-year-old son who lives in New York. Sheppard's father was never involved in his life and died when he was 24. Sheppard has been married for 20 years to his present wife. They have a 14-year-old daughter. His wife and daughter live in Oakland and visit Sheppard frequently.

The Board discussed Sheppard's parole plans and read into the record a letter from Charles Turner, the program coordinator for the Oakland Private Industry Council indicating that when he was released Sheppard would receive paid training, financial assistance, transportation assistance, childcare assistance, employment placement assistance, and clothing assistance. Further, a letter from a job developer at the Contract Compliance and Employment Services stated that Sheppard would be assisted in signing up for a paid construction apprenticeship program of his choice.

The Board indicated that Sheppard was just 41 units shy of receiving his Bachelor of Arts degree in Business Administration. The Board discussed Sheppard's accomplishments in prison including completing multiple certificates in computer-related topics and receiving numerous laudatory commendations.

The Board discussed Sheppard's substance abuse history. Contrary to previous documentation reflecting that Sheppard was a heroin addict, Sheppard admitted to using heroin only once and to drinking beer and smoking marijuana before his commitment offense.

The Board discussed Sheppard's six serious disciplinary infractions, including having contraband brought in on a visit, altering an inmate activity card, failing to perform extra work, possessing computer disks and two incidents of violating institutional mail procedures. Sheppard's last disciplinary action was in 1990, which was for a positive urinalysis for stimulants and sedatives.

The Board discussed Dr. Mahoney's March 2004 psychological evaluation of Sheppard. Specifically, Dr. Mahoney diagnosed Sheppard as suffering from polysubstance abuse by history and antisocial personality disorder. Dr. Mahoney concluded that Sheppard's judgment seemed fair, his insight seemed poor, and his potential for violence average in comparison to " 'other maximum security inmates.' "

Finally, the Board considered argument from a representative of the District Attorney's Office who opposed Sheppard's parole, Sheppard's counsel and from Sheppard.

The Board's Decision

The Board denied Sheppard parole for one year. In so doing, the Board found that Sheppard would pose an unreasonable risk of danger to society or a threat to public safety if released. In the Board's opinion, "the offense was carried out in a dispassionate and calculated manner, such as an execution style murder and that there is evidence to indicate that the victim was shot in the head four separate times in rapid succession." In addition, the Board found that the "motive for the crime was trivial in relationship to the offense in that the victim was murdered apparently as a result of an unpaid drug debt in the amount of approximately $5600." The Board noted that these conclusions were drawn from the "Statement of Facts."

The Board found that Sheppard had "an escalating pattern of criminal conduct, as evidenced by [his] criminal history which includes arrest and/or convictions for stealing a bike, auto theft, grand larceny, stolen property, unauthorized use of a vehicle, rape, robbery, menacing, possession of controlled substance, possession of drug paraphernalia, possession of controlled substance and possession and sale of cocaine." Furthermore, the Board concluded that Sheppard had "failed to profit from society's previous attempts to correct [his] criminality and that such attempts have included probation, as well as prior sentences to State Prison."

Moreover, the Board concluded that the 2004 report by the psychologist was unfavorable, which led the Board to conclude that if Sheppard "were to be released to the community [his] potential for violence would be higher than the average citizen." The Board noted that the District Attorney of Santa Clara County opposed a finding of parole suitability. Nevertheless, the Board commended Sheppard for upgrading his vocation and education while incarcerated, his numerous laudatory commendations, for having remained discipline free for 14 years and for maintaining positive relationships with his family and prison staff.

The Board requested that another clinical evaluation be completed to assess Sheppard's potential for violence in the community, the significance drugs had to his commitment offense and his ability to refrain from drugs on parole, and if further therapy was needed to assist him in gaining insight into his participation in the crime.

The Habeas Proceeding Below

In granting Sheppard's petition for writ of habeas corpus, it appears that initially the court below took issue with the Board's position that the terms " 'especially heinous, atrocious or cruel' " are not unconstitutionally vague or that by using the term "trivial" it is not using a term of comparison that must have meaningful and definable criteria. The court found the Board's position "untenable." The court noted, "Vague terms cannot be defined by reference to equally vague terms, nor by reference to terms that, as [the Board] insists, need have no meaning or definition whatsoever."

The court below found that the Board's finding that the crime was an execution style murder "is unexplained and unsupported by any evidence articulated by the Board or present in the record before it." The court went on to say that the "mere fact that four shots were fired certainly cannot support that conclusion." The court instructed the Board, "In every case of first degree murder the question must be addressed: what facts establish more than the premeditation and deliberation essential to every such conviction? Ignoring this question allows Board determinations devoid of any frame of reference or perspective, and perpetuates the use of unsuitability criteria that are without standards and cannot be applied or reviewed in accordance with due process."

The court stated that "In addition to the fact that no evidence supports any findings regarding the crime itself . . . the Board inappropriately double (or triple) counted the 25+ year old static factors against [Sheppard]. If a person has a prior record and is serving a term for murder then they necessarily both had an 'escalating' pattern and did not fully 'profit' from prior correctional attempts. Furthermore, these static factors can be among the least significant when, as in this case, substantial prison time had been served and the inmate's programming and subsequent behavior indicate rehabilitation."

The court went on to say that the "history of this case demonstrated that it is futile to direct this Board to 'proceed in accordance with due process' because the Board has disregarded the specific guidance of this court and the Court of Appeal[] in that regard. Accordingly, it is hereby ordered that the Board may not find [Sheppard] unsuitable for parole based on the same evidence and findings discussed above, however if new evidence is presented different from the evidence presented at the previous hearing, the Board may consider [Sheppard's] suitability considering the new evidence, if any."

Finally, the court granted Sheppard's petition for writ of habeas corpus and ordered the Board to "within 5 days, set a date for a new hearing to be held within 30 days and at which the Board shall obey every order and directive contained in this order, the opinion and order of the Sixth District (H026322) and the original Superior Court order insofar as it was affirmed by the Sixth District."

Standard of Review

The California Supreme Court addressed the judicial review standard that applies to parole decisions by the Board in In reRosenkrantz (2002) 29 Cal.4th 616 (Rosenkrantz). Our Supreme Court held that "the judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law, but that in conducting such a review, the 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. If the decision's 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 prisoner's petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law. [Citations.]" (Id. at p. 658, italics added.)

It appears that the superior court's findings were based solely on documentary evidence. Accordingly, we independently review the record to determine if there is some evidence to support the Board's findings. (Rosenkrantz, supra, 29 Cal.4th at p. 677.)

Discussion

Essentially, the Board argues that its decision to deny Sheppard parole complied with due process requirements and was supported by some evidence. Accordingly, its decision must be upheld and the superior court's order must be reversed.

"One of the Board's functions is to set parole dates for prisoners serving indeterminate sentences. (Pen. Code, 3040; 3041, subd. (a); 3000, subd. (b)(4) & (7).) Penal Code section 3041, subdivision (b) requires the Board to 'set a release date unless it 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 public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.' This statute creates a conditional liberty interest for a prospective parolee. (Cf. Rosenkrantz, supra, 29 Cal.4th at p. 661; McQuillion v. Duncan (9th Cir. 2002) 306 F.3d 895, 901-902[8] The Board has broad discretion, sometimes called ' " 'great' " ' and ' " 'almost unlimited,' " ' to identify and weigh the factors relevant to predicting 'by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts.' (Rosenkrantz, supra, 29 Cal.4th at p. 655 . . . .) However, 'the requirement of procedural due process embodied in the California Constitution (Cal. Const., art. I, 7, subd. (a)) places some limitations upon the broad discretionary authority of the Board.' (Ibid.) A prisoner is entitled to 'an individualized consideration of all relevant factors.' (Ibid.)" (In reDeLuna (2005) 126 Cal.App.4th 585, 591.)

California Code of Regulations, title 15, section 2402, subdivision (b) sets forth the manner in which suitability determinations are to be made. Section 2402, subdivision (a)[9] states that "[r]egardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison."

Section 2402, subdivision (c) identifies six nonexclusive circumstances tending to show unsuitability, the relative importance of which "is left to the judgment of the panel." The specified circumstances are "(1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner." Relevant here, "[t]he factors to be considered include: . . . [] (B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder. . . . [] (E) The motive for the crime is inexplicable or very trivial in relation to the offense." Section 2402, subdivision (d), identifies nine circumstances tending to show suitability for release.

The Board's determination that Sheppard would pose a threat to public safety if released from prison, and was therefore unsuitable for parole, rested on one of the six enumerated "circumstances tending to indicate unsuitability"his commitment offense, which implicitly the Board concluded was carried out in an especially heinous, atrocious and cruel manner.[10] However, as noted, the Board found that Sheppard had an escalating pattern of criminal conduct as evidenced by his criminal history and had failed to profit from previous attempts to correct his criminality. In addition, his psychological evaluation was unfavorable. Thus, leading the Board to the conclusion that if released into the community Sheppard's potential for violence would be higher than the average citizen.

When determining a prisoner's suitability for parole, the Board shall consider "[a]ll relevant, reliable information" that "bears on the prisoner's suitability for release." ( 2402, subd. (b).) "Such information shall include the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability." (Ibid.)

Even if we were to agree with the trial court that there is no evidentiary support in the record for the Board's conclusion that Sheppard's commitment offense was carried out in an especially heinous, atrocious and cruel manner, we find that three other factors cited by the Board for denying parole are supported by the record.

Sheppard's "past criminal history, including involvement in other criminal misconduct which is reliably documented," is relevant to his parole suitability. ( 2402, subd. (b).) As is Sheppard's "behavior before, during, and after" his commitment offense. ( 2402, subd. (b).)[11] Likewise Sheppard's most recent psychological evaluation is relevant to his parole suitability determination. ( 2402, subd. (b) ["any other information which bears on the prisoner's suitability for release"].)

As to the Board's finding that Sheppard had an escalating pattern of criminal conduct and had failed to profit from society's previous attempts to correct his criminality, the Board discussed at length the 11 contacts Sheppard had with law enforcement between the ages of 10 and 27. As a result of some of those contacts, Sheppard was committed to "reform school" and twice to prison. Accordingly, there is some support for the Board's findings that Sheppard's 17-year criminal history of theft and drugs escalated when he killed a person over a drug debt and that the previous attempts to reform Sheppard were unsuccessful.

As to the Board's finding that if released Sheppard's potential for violence would be higher than the average citizen, Dr. Mahoney's psychological evaluation, in which she concluded that in comparison to other maximum security inmates Sheppard's potential for violence is average, supports such a finding.[12] Dr. Mahoney did not compare Sheppard to the average citizen, but to inmates with maximum security classifications.

At oral argument in this matter, Sheppard's counsel requested that she be allowed to refer to some recent cases that have addressed parole habeas issues. While denying that request, this court requested that the parties file supplemental letter briefs on those recent cases, as well as the issue of what inferences the Board is entitled to draw from the evidence.

Of the four cases that Sheppard's counsel briefed, three involve the Governor's reversal of the Board's decisionIn re Tripp (2007) 150 Cal.App.4th 306, In re Gray (2007) 151 Cal.App.4th 379, and In re Lawrence (2007) 150 Cal.App.4th 1511 (petition for review pending) and one involves a Board denial of parole (In re Barker (2007) 151 Cal.App.4th 346.) We find these cases to be distinguishable from Sheppard's case because in this case the Board did not deny Sheppard parole based on the commitment offense alone. (In re Tripp, supra, 150 Cal.App.4th at p. 314 [Governor's parole decision based "entirely on the commitment offense"]; In re Gray, supra, 151 Cal.App.4th at p. 358 [the Governor explained that he was reversing the Board's 2005 suitability determination based solely upon the nature of the crime]; In re Lawrence, supra, 150 Cal.App.4th at p. 1529 [the Governor explained that "the gravity alone of this murder is a sufficient basis on which to conclude presently that Ms. Lawrence's release from prison would pose an unreasonable public-safety risk"]; and In re Barker, supra, 151 Cal.App.4th 346 at p. 361 [the specific reason found for denying parole for three years was the "commitment offense"].)

Here, the Board denied parole not only because of the commitment offense, but also because of Sheppard's most recent psychological evaluation. The Board is entitled to make reasonable inferences from the documentary evidence. (In re Dannenberg, supra, 34 Cal.4th at p. 1095, fn. 16.) However, "the evidence must substantiate the ultimate conclusion that the prisoner's release currently poses an unreasonable risk of danger to the public." (In re Tripp, supra, 150 Cal.App.4th at p. 313.) In this case, Dr. Mahoney concluded that Sheppard's potential risk for violence was average compared to maximum security inmates, i.e. to other life prisoners. From this evaluation, the Board concluded that if Sheppard "were to be released to the community [his] potential for violence would be higher than the average citizen." Ultimately, this inference based on the evidence led to the conclusion that Sheppard's release would pose an unreasonable risk of danger to the public if he was released. We cannot say that the Board's ultimate conclusion was unsupported by the evidence or an unreasonable conclusion.

The precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Board. However, as noted, the decision must reflect an individualized consideration of the specified criteria. (Rosenkrantz, supra, 29 Cal.4th at p. 655.) "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." (Id. at p. 677.)

The Board argues, "Just as this court's April 29, 2004 decision directed the Board to do, the Board conducted its individualized consideration of Sheppard's suitability for parole in accordance with due process. . . . Further, some evidence with a factual basis supports the Board's decision denying Sheppard parole. Accordingly, this court should reverse the superior court's order and uphold the Board's decision denying Sheppard parole."

"In reviewing a decision denying parole, we first determine whether some evidence supports each of the factors stated by the Board to justify the denial of parole. [Citations.] If one or more of the factors lacks evidentiary support, the next questions are whether the Board would have denied parole based upon the supported factors and whether this result 'satisfies the requirements of due process of law' because the factors for which there is some evidence 'constitute a sufficient basis supporting the . . . discretionary decision to deny parole.' [Citation.] We will uphold the denial of parole when it appears that the Board would have reached the same conclusion based on the supported factors and those factors individually or collectively justify that conclusion. [Citations.]" (In re DeLuna, supra, 126 Cal.App.4th at p. 598.)

Our review of the Board's stated reasons for denying Sheppard a parole release date reveals that some of the factors cited by the Board have evidentiary support in the record. It appears that the Board was particularly concerned with Sheppard's potential for violence if released because the Board asked the Department of Corrections to conduct another clinical evaluation in order to assess Sheppard's potential for violence in the community. Since the Board conducted its individualized consideration of Sheppard's suitability for parole, and there is some evidence in the record to support its conclusion that if released from prison Sheppard will pose an unreasonable risk of danger to society, Sheppard was afforded due process. (Rosenkrantz, supra, 29 Cal.4th at p. 655 [due process affords an inmate "an individualized consideration of all relevant factors"].)

Accordingly, we are compelled to reverse the trial court's order.

We caution, however, it violates a prisoner's right to due process when the Board attaches significance to evidence that forewarns no danger to the public or relies on an unsupported conclusion. (See In re DeLuna, supra, 126 Cal.App.4th at p. 597.) Further, the Dannenberg court observed that "no inmate may be imprisoned beyond a period that is constitutionally proportionate to the commitment offense." (Dannenberg, supra, 34 Cal.4th at p. 1071.) Moreover, the commitment offense, Sheppard's prior criminal history and failure to profit from society's previous attempts to correct his criminality are factors that a prisoner cannot change. Continued reliance on immutable factors "without regard to or consideration of subsequent circumstances" may be unfair and violate due process. (In re Smith (2003) 114 Cal.App.4th 343, 372.)

Since we have reversed the trial court's order we need not address the Board's remaining contention.

Disposition

The trial court's order granting Sheppard's writ of habeas corpus is reversed.

_____________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

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[1] Although a habeas petition is generally "directed to the person having custody of or restraining the person on whose behalf the application is made" (Pen. Code, 1477), Sheppard challenged the actions of the Board of Prison Terms (now Board of Parole Hearings, Gov. Code,  12838.4). Accordingly, we refer to appellant as the Board.

[2] The superior court ordered the Board to set a date for Sheppard's immediate release on parole.

[3] In guidance to the Board, this court held that if the Board were to rely on the "callousness of the offense" or "triviality" of the motive, it must provide factual analysis and specific findings in support of its decision to establish that Sheppard's crime is more trivial or callous than the minimum requirements for first degree murder.

[4] Sheppard requested that this court take judicial notice of the record in case number H026322, In re Sheppard. This court granted Sheppard's request on February 16, 2007.

[5] California Code of Regulations, title 15, section 2402.

[6] We take most of the facts of the commitment offense from this court's opinion in In re Sheppard I.

[7] It appears that Sheppard was arrested for rape around this time, but the charge was dismissed. Later, he married the alleged victim.

[8] The California Supreme Court reached the issue whether there was "some evidence" supporting a parole suitability determination in In re Dannenberg (2005) 34 Cal.4th 1061, 1095-1095. Thus, the California Supreme Court implicitly indicated that due process requirements still apply to parole determinations in California.

[9] Unless noted, all undesignated regulation and section references are to Title 15 of the California Code of Regulations.

[10] As noted, the Board found that the offense was carried out in a dispassionate and calculated manneran execution style murder and the motive for the murder was trivial in relation to the offense.

[11] Specifically, the Board noted Sheppard's failure to profit from society's previous attempts to correct his criminality.

[12] We do not read this finding to mean that Dr. Mahoney thought Sheppard was a maximum security inmate. The Board was aware of Sheppard's custody level and could consider Dr. Mahoney's evaluation in that context.