Filed 10/23/17 In re Dunaway CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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After a jury found Christopher Dunaway guilty of second degree murder, the trial court sentenced him in 1995 to an indeterminate term of 15 years to life in prison plus one year for a weapon enhancement. In June 2014, the Board of Parole Hearings found Dunaway suitable for parole but the Governor reversed the board’s decision. The trial court denied Dunaway’s petition for writ of habeas corpus and Dunaway sought relief in this court.

Meanwhile, the board once again found Dunaway suitable for parole and the Governor once again reversed the board’s decision. Dunaway filed a second petition for writ of habeas corpus. We issued an order to show cause and consolidated his petitions.

Dunaway’s first writ petition claimed the Governor’s 2014 parole decision was unsupported by the evidence, failed to consider youthful offender factors and demonstrated no nexus between alleged unsuitability and current dangerousness. His second writ petition asserted the Governor’s 2016 parole decision lacked supporting evidence and was arbitrary in violation of due process, and the board’s informal extension of the interval for parole consideration following a gubernatorial reversal violated his due process, ex post facto and equal protection rights.

We conclude the Governor’s 2014 and 2016 parole decisions are supported by some evidence and demonstrate a reasoned application of the correct legal principles. We further conclude Dunaway’s constitutional rights were not infringed by the board’s discretionary scheduling change.

BACKGROUND

In April 1994, the victim was found dead in the office of an automotive shop. The victim had been stabbed over 20 times. On the floor next to the victim’s body, officers found paperwork pertaining to the repair of Dunaway’s 1974 blue Volkswagen “bug.” The paperwork indicated the repair would cost over $900. (People v. Dunaway (Aug. 13, 1996, C021127) [nonpub. opn.].)

Police apprehended Dunaway at his high school the next day. (People v. Dunaway, supra, C021127.) At trial Dunaway testified he had the car towed to the victim’s shop for repair and the victim told him it would cost $70 to tighten valves and check the compression, but more work might be needed. (Ibid.) The next day, however, the victim said he needed to remove the engine. (Ibid.) Dunaway thought that might cost another $30, but he did not think he authorized further repairs and told the victim he only had $125. (Ibid.)

After the victim agreed to stay open late for Dunaway, Dunaway rode his bicycle to pick up the car and parked his bicycle some distance away, explaining at trial that the bike would not fit in the car and would be safer where he left it. (People v. Dunaway, supra, C021127.) He testified that the victim started the car and lifted the hood before taking him to his office and writing out a bill for over $900. (Ibid.) When Dunaway said he didn’t have that kind of money, Dunaway testified that the victim jumped out of his chair and Dunaway backed up but the victim pushed Dunaway, after which Dunaway reached for his buck knife. (Ibid.) Dunaway recalled stabbing the victim only twice, saying he had no intention to kill him and had “ ‘acted on instinct.’ ” (Ibid.)

A jury convicted Dunaway of second degree murder and personal use of a deadly and dangerous weapon. (People v. Dunaway, supra, C021127.) A probation report stated that at the time of the crime Dunaway had a 3.87 grade point average, his school attendance was excellent and he had no disciplinary problems at school. Letters of recommendation from his teachers described his academic achievement, attendance and good citizenship. He did not have a criminal record. The trial court sentenced Dunaway to 15 years to life in prison plus one year for the weapon enhancement. (People v. Dunaway, supra, C021127.)

Previously, Dunaway had claimed the victim pulled the wool over Dunaway’s eyes or pulled a fast one by increasing the agreed-upon price for the car repair, but at a 2014 parole hearing Dunaway said those prior statements were untrue. Dunaway said he had previously been in denial when he said those things but prison classes helped him take responsibility. He admitted authorizing the repair after the victim told him how much it would cost; he had blamed the victim for Dunaway’s sense that life in general had dealt him a bad hand. Dunaway also admitted he planned the crime in advance and facilitated it by parking his bicycle away from the repair shop. He explained he had been so hurt from internalizing his problems and fears that he had been a “real mess.” Applying what he called “dysfunctional thinking,” he wanted to lash out and hurt somebody.

Dunaway described his family situation at the time of the crime, including separation from his mother when his parents divorced and his sense of powerlessness when his father and sister were victimized by violent crime. He said he bottled up his anger and masked his fear and hurt. He was so convinced he had received an “unfair shake” that he eventually lashed out on the day of the crime in a way that far exceeded any provocation. Dunaway told the board: “I have no right to hurt another person. . . . So even when I find myself in conflict, even when I am angry, I’ve already replaced those values that were inherent in me when I committed my crime that under no circumstances can I allow myself to even get close to being aggressive.” He said he had successfully avoided any violence in prison because of a conscious decision to never again let his anger lead to aggression. He identified anger as a warning sign that something needs to be addressed but he was emphatic that aggression is never an acceptable response to anger.

While in prison Dunaway obtained two Associate degrees and several vocational certifications. He submitted a list of 40 self-help programs in which he had participated, including Alternatives to Violence and Victim Awareness. He did not receive any prison disciplinary notices. He had eight letters of family and community support, including offers for housing and jobs, along with many laudatory “chronos” praising his work in prison. A May 2014 psychological evaluation reviewed by the board praised his compliance and achievement and described him as a low risk for violence. He completed many vocational and training classes plus five book reports on subjects related to his rehabilitation. Based on the evidence, the board concluded Dunaway was eligible for parole and did not pose an unreasonable risk of danger or a threat to public safety if released.

In October 2014, the Governor reviewed the record and reversed the board’s decision. The Governor noted Dunaway and the victim argued about the cost to repair the car and Dunaway stabbed the victim 23 times in his throat, chest and abdomen, exposing the victim’s intestines and puncturing his heart and lungs. The Governor said the autopsy indicated Dunaway twisted the knife when stabbing the victim. The Governor recognized he must give great weight to the diminished culpability of juveniles, the hallmark features of youth, and any subsequent growth and increased maturity when determining a youthful offender’s suitability for parole. But he also noted the circumstances of the crime can provide evidence of current dangerousness when the record establishes that something in the inmate’s incarceration history, current demeanor or mental state indicates the circumstances of the crime remain probative of current dangerousness.

The Governor acknowledged Dunaway’s clean disciplinary record and his efforts to improve himself while incarcerated. He commended Dunaway for those positive steps but said they were outweighed by the negative factors that demonstrate he remains unsuitable for parole. The Governor recognized Dunaway was 17 years old when he committed the murder and that he experienced instability, insecurity and harassment at school because of his mixed ethnicity. But the Governor said Dunaway was an honor student who planned the especially gruesome and disturbing crime over a repair bill he could not pay, and his explanations for the murder were inadequate. According to the Governor, the circumstances that led to Dunaway’s anger -- peer isolation, bullying, poverty, and lack of emotional support -- are common in the lives of many teens, and did not sufficiently explain why Dunaway planned to murder a stranger in connection with a repair bill or the extreme level of violence he exhibited. The Governor concluded Dunaway did not have a sufficient understanding of why he murdered the victim, and without such an understanding the Governor was not confident Dunaway could avoid similar violent behavior if returned to the community.

Pursuant to routine scheduling practices for inmates whose parole was approved by the board but reversed by the Governor, the board scheduled another parole hearing for December 2015, 18 months after his 2014 hearing. At the 2015 hearing the board asked Dunaway whether he would respond to frustration with violence. Dunaway said “life is hard sometimes” and he had forgiven his parents for their emotional detachment and had moved forward. He said he absolutely would not carry weapons even if he lived in a tough neighborhood where others carried them. He said if he could speak to the victim, he would say he was sorry for hurting him and for taking him away from his family and others who loved him; he also openly acknowledged the continuing anguish he had caused to the victim’s family and community.

A 2015 psychological evaluation was consistent with an evaluation in 2014, identifying as mitigating factors a notable level of insight into the crime at the 2014 hearing followed by continued exploration of the reasons for the crime and no new aggravating factors. In addition, Dunaway once more offered evidence of his educational achievements and success as a prison worker. The presiding commissioner said Dunaway had diminished capacity at the time of the crime because of his youth and the board did not find anything that would link Dunaway to current dangerousness. Concluding that stabbing a stranger 23 times is ultimately unexplainable, the presiding commissioner noted that Dunaway had shown growth, maturity and rehabilitation and there were no prison rules violations in his record to suggest any impulsivity or behavioral problems.

The Governor reversed the board’s decision in April 2016. Recognizing Dunaway’s diminished culpability due to his youth at the time of the murder and acknowledging the instability, isolation, poverty and neighborhood conditions that Dunaway experienced, the Governor also noted Dunaway’s growth and success in prison. But the Governor said Dunaway’s understanding of why he planned such an extremely violent murder remained troubling. According to the Governor, Dunaway repeated many of the same explanations: his anger stemmed from isolation, a dangerous neighborhood and family problems, and he targeted the victim because he wanted somebody else to hurt. The Governor said he did not overlook Dunaway’s frustration with his circumstances, but his explanation for how he tried to solve those problems in such a callous, cold-blooded manner remained insufficient. Concluding that Dunaway’s understanding of what caused him to unleash all of his anger and frustration in a vicious manner wholly disproportionate to his circumstances remained deficient, the Governor said he was still not confident Dunaway would not react violently if released from prison.

Dunaway anticipates his next parole hearing will be 18 months from the 2015 hearing. Additional facts are included in the discussion.

DISCUSSION

A

The standard for determining whether a life prisoner is suitable for release on parole is whether the prisoner “will pose an unreasonable risk of danger to society if released from prison.” (Cal. Code Regs., tit. 15, § 2402, subd. (a).) All relevant and reliable information, including the prisoner’s social history, his past and present mental state, his criminal history, and his past and present attitude toward the crime must be considered. (Id. at subd. (b).) As pertinent to this case, among the listed circumstances tending to show unsuitability for parole are a commitment offense committed in an especially heinous, atrocious or cruel manner and a motive for the crime that is very trivial in relation to the offense. (Id. at subd. (c).) Among the relevant circumstances tending to show suitability for parole are reasonably stable relationships with others, signs of remorse for the suffering of the victim, and the crime having been motivated by significant life stress. (Id. at subd. (d).)

Moreover, if the offense was committed before the age of 23, the board must also “give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.” (Pen. Code § 4801, subd. (c).)[1] In other words, a parole hearing for an inmate whose life crime occurred before his 23rd birthday must be informed by “youth-related factors, such as cognitive ability, character, and social and family background at the time of the offense.” (People v. Franklin (2016) 63 Cal.4th 261, 269.)

After the parole board decides to grant or deny parole to an inmate sentenced to an indeterminate prison term for murder, the Governor has the constitutional authority to reverse or modify the board’s decision. (§ 3041.2; Cal. Const., art. V, § 8, subd. (b).) The Governor’s de novo review applies the same standards used by the board; thus, the Governor has discretion to be more stringent or cautious in determining whether a defendant poses an unreasonable risk to public safety. (In re Shaputis (2008) 44 Cal.4th 1241, 1258; In re Ryner (2011) 196 Cal.App.4th 533, 544.)

B

In reviewing a decision by the Governor that an inmate is not suitable for parole, a court must consider the entire record in the light most favorable to the Governor’s decision, to see if the record discloses some evidence -- a modicum of evidence -- supporting the determination that the inmate would pose a danger to the public if released on parole. (In re Shaputis (2011) 53 Cal.4th 192, 214 (Shaputis II).) Although the “some evidence” standard is not toothless, it must not operate to impermissibly shift the ultimate discretionary decision of parole suitability from the executive branch to the judicial branch. (Id. at p. 215.) The Governor’s decision is subject to judicial review, but that review is limited and narrower in scope than appellate review of a lower court’s judgment. (Ibid.) The some-evidence standard is intended to guard against arbitrary parole decisions without encroaching on the broad authority granted to the Governor. (Ibid.) The standard is more deferential than substantial evidence review, and may be satisfied by a lesser evidentiary showing. (Id. at p. 210.) In fact, only when the evidence reflecting the inmate’s present risk to public safety leads to but one conclusion may a court overturn a contrary decision by the Governor. (Id. at p. 211.)

Resolution of conflicts in the evidence, and the weight to be given the evidence, are matters within the authority of the Governor. (Shaputis II, supra, 53 Cal.4th at p. 210.) Likewise, the precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor. (Ibid.) 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. (Ibid.) Any relevant evidence that supports the Governor’s determination is sufficient to satisfy the some-evidence standard. (Id. at p. 214.)

A parole suitability decision is an attempt to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts. (Shaputis II, supra, 53 Cal.4th at p. 219.) Past criminal conduct and current attitudes toward that conduct may both be significant predictors of an inmate’s future behavior. (Ibid.) While subjective analysis is an inherent aspect of the parole suitability determination, it plays a proper role only in the parole authority’s determination. (Ibid.) The court’s function is one of objective review, limited to ensuring that the Governor’s analysis of the public safety risk is based on a modicum of evidence, not mere guesswork. (Ibid.) Accordingly, the reviewing court does not ask whether the inmate is currently dangerous. (Id. at p. 221.) That question is reserved for the executive branch. (Ibid.) Rather, the court considers whether there is a rational nexus between the evidence and the ultimate determination of current dangerousness. (Ibid.)

But nothing in the requirement that a parole denial be accompanied by a statement of reasons demands that the parole authority comprehensively marshal the evidentiary support for its reasons. (Shaputis II, supra, 53 Cal.4th at p. 214, fn. 11.) Appellate review for some evidence supporting the parole authority’s decision extends to the entire record, and is not limited to the evidence specified by the parole authority. (Ibid.)

C

In each of the Governor’s parole decisions he identified and applied the prescribed suitability standards and the statutory youthful offender factors. Some evidence supports the Governor’s decisions.

The record shows that at the time of the crime, Dunaway was an outstanding student with no history of discipline. There is no evidence that anyone expected him to plan the murder of a stranger and carry it out by stabbing the victim 23 times in the throat, chest and abdomen, exposing the victim’s intestines and puncturing his heart and lungs. Jump to the present, and the record shows Dunaway is now an outstanding prison student with no history of prison discipline. Many people do not expect him to suddenly commit a violent crime if released. But nobody expected that to happen before. One witness expressed the opinion that Dunaway is not an obvious ticking bomb, but rather a hidden land mine. Another witness noted that Dunaway lied and was convicted of second degree murder, but later admitted he planned the murder, and yet in all his book reports and rehabilitation he has never addressed how he could plan such a crime. Under the circumstances, it was not arbitrary or absurd for the Governor to place great weight on whether Dunaway understands why he committed the life offense and whether he has sufficient insight into how he will prevent such violence in the future.

The Governor repeatedly said Dunaway has not expressed a sufficient understanding for why he planned and carried out such a brutal murder. In fact, after all of Dunaway’s testimony, the presiding commissioner noted it was still “extremely hard for any of us to understand why this murder even took place and the Governor had problems with it.” The presiding commissioner concluded it is ultimately “unexplainable.” But the Governor need not accept such a conclusion. Reasonable people might differ as to whether Dunaway has expressed sufficient understanding and explanation, but resolution of conflicts in the evidence, and the weight to be given the evidence, are matters within the authority of the Governor. (Shaputis II, supra, 53 Cal.4th at p. 210.) The Governor’s decision focused on current dangerousness, as the law requires, and his decision is supported by some evidence in the record.

II

Dunaway acknowledges there is no legal constitutional or statutory provision specifying when the board should hold another parole hearing after the Governor reverses a grant of parole. In 2008, the board had scheduled new hearings immediately after notice of the Governor’s reversal and had set hearings about 12 months after the hearing at which parole had been granted. But in 2013, the board changed this process and began setting parole hearings approximately 18 months after the board’s initial grant of parole. The board said it would not displace other inmates due for a hearing, and explained that the prior shorter time period gave inmates little time to address the Governor’s concerns.

Dunaway contends there is a great likelihood the board will find him suitable for parole again and thus the scheduling change will add an extra six months to his period of incarceration. He says “there is almost no chance” he will be denied parole again. Accordingly, he contends the board’s schedule is an ex post facto punishment. We disagree.

The United States and California constitutions prohibit the passage of ex post facto laws. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) But a parole guideline is not a law because, unlike a law, it may be discarded where circumstances require. (Inglese v. U.S. Parole Com. (7th Cir. 1985) 768 F.2d 932, 936 [citing cases]; accord Smith v. U.S. Parole Com. (9th Cir. 1988) 875 F.2d 1361, 1367.) Dunaway concedes the board’s 2008 and 2013 letters describing scheduling are not based on unconstitutional law.

Dunaway points out that a change in parole law may run afoul of ex post facto principles if it creates a significant risk of prolonging incarceration. He says the Attorney General failed to prove a need for extending the time for a parole applicant to secure parole after gubernatorial reversal. However, Dunaway’s sentence has not changed. He is still serving the same indeterminate life sentence. His claim of prolonged incarceration is based on speculation that he will be approved for parole by the board and the Governor in the future. He claims a right to annual parole hearings but cites no statutory or constitutional authority for such a right. The board’s prior practice did not create such a right, and the case cited by Dunaway, Peugh v. United States (2013) __ U.S. __ [186 L.Ed.2d. 84], does not support his contention. That case presented an ex post facto violation because a more severe set of sentencing guidelines was adopted between the time of trial and the time of sentencing, resulting in a more severe sentence which extended punishment well beyond what it would have been on the day of conviction. (Id. at pp. __-__ [186 L.Ed.2d at pp. 93-94].) No such circumstances are present in this case.

California and federal ex post facto provisions are analyzed the same way. (In re Vicks (2013) 56 Cal.4th 274, 287.) Ex post facto claims were addressed after voters passed a proposition known as Marsy’s Law in 2008 because the law deferred parole hearings for some murderers so that victims would no longer have to attend annual hearings when a grant of parole was unlikely. (Id. at pp. 283-284.) The California Supreme Court found no ex post facto violation because the board retained unfettered discretion to advance a parole hearing and such discretion sufficiently alleviated the risk of prolonged incarceration. (Id. at p. 306.) Dunaway has not identified any source of restriction on the board’s scheduling discretion for inmates whose parole was approved by the board but denied by the Governor, and his claim lacks merit.

DISPOSITION

The order to show cause is discharged and the petition for writ of habeas corpus is denied.

/S/

MAURO, J.

We concur:

/S/

NICHOLSON, Acting P. J.

/S/

ROBIE, J.