In re Criscione
Filed 10/10/06 In re Criscione 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
In re ARTHUR S. CRISCIONE, H029664
On Habeas Corpus. (Santa Clara County
Superior Court
No. 71614)
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Respondent Arthur S. Criscione, who is serving a life term for second degree murder, sought a writ of habeas corpus from the superior court after the Board of Prison Terms (the Board) denied him parole. He alleged that he should be released because he was suitable for parole and had already served a prison sentence that exceeded the top of the second degree murder matrix. Criscione did not attach to his petition a transcript of the parole hearing or any of the evidence that was before the Board at the parole hearing. The superior court issued an order to show cause (OSC).
The Board failed to timely file a return, and instead sought an extension of time. The superior court refused to grant an extension of time, ruled that the Board was “in default” and granted the petition. It ordered a new parole hearing at which the Board would be barred from considering its previous findings and would be required to compare Criscione’s offense to the minimum necessary for first degree murder. The Board appeals. We conclude that the allegations in Criscione’s petition did not justify the superior court’s order granting the petition. Because one issue in Criscione’s petition remains unresolved, it is necessary to remand the matter for further proceedings.
I. Background
Criscione was convicted of second degree murder in 1979 and committed to state prison to serve an indeterminate term of 15 years to life.[1] In 2002, the Board granted him parole, but the Governor reversed the Board’s decision and denied Criscione parole.[2] In 2003, the Board denied Criscione parole. In 2004, the Board again denied Criscione parole.
On October 7, 2004, Criscione filed a pro se petition for a writ of habeas corpus in the superior court challenging the Board’s 2004 parole denial. Criscione alleged that he was entitled to be paroled because all of the relevant suitability criteria[3] favored parole, and he had served more than 25 years in prison, which exceeded the top of the matrix for second degree murder. Criscione noted that he “has served 25 2/3 calendar years: well into first-degree murder matrix.” Criscione alleged that his 2004 parole hearing “was a sham” at which the Board denied him parole for “the same standard B.P.T. reasons”: (1) failure to accept full responsibility for the crime, (2) failure to demonstrate an adequate level of remorse, (3) the danger to society if released, and (4) the cruelty and callousness of the life crime.
The only exhibits that Criscione attached to his petition were single-page forms memorializing the Board’s 2002, 2003 and 2004 decisions and a 2002 letter from the Governor’s office announcing his decision to reverse the Board’s 2002 decision granting parole. None of these exhibits indicated the reasons for the Board’s 2004 denial of parole. Criscione did not attach a copy of the transcript of the Board’s 2004 parole hearing (or any prior parole hearing transcripts), a copy of the Governor’s 2002 decision, any psychological evaluations, the transcript of his 1979 jury trial or any other material to support the allegations in his petition.
On November 10, 2004, the superior court issued an OSC on Criscione’s petition. The order stated that the length of Criscione’s incarceration had “put him within or beyond the matrix for first degree murders.” “The examination of the record, therefore, must be for ‘some evidence’ that the crime is worse than most other instances of first degree murder.” “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.”
The superior court’s OSC also directed the Board to “take care to explain why this case is not just like [In re Smith (2003) 109 Cal.App.4th 489] in which ‘the record provides no reasonable grounds to reject, or even challenge, the findings and conclusions of the psychologist and counselor concerning [Petitioner’s] dangerousness.’ [Smith citation.] In doing so, [the Board] should explain why facts from Petitioner’s distant past have any relevance today on the issue of whether Petitioner ‘currently poses an unreasonable risk of danger.’ [Smith citation.]” The court ordered the Board to file its return “within thirty days after the date of service of this order.” The OSC was served on the Board by mail on November 10, 2004.
On November 30, 2004, the Board filed a peremptory challenge to Judge James C. Emerson, the superior court judge who had issued the OSC. On December 16, 2004, the Board asked the superior court to stay the proceedings to permit it to file a mandate petition in this court. In its request for a stay, the Board said: “If this court denies this request, respondent respectfully requests that this court extend the time to file a return to the habeas petition by an additional 30 days from this court’s order denying respondent’s request to stay proceedings.” Our appellate record contains no ruling on these requests..
On December 16, 2004, the Board filed a writ petition in this court and sought a stay of the OSC.[4] On December 20, 2004, this court issued a stay of “all proceedings pursuant to” the OSC. On October 4, 2005, this court summarily denied the petition and vacated the stay.
On November 2, 2005, the Board filed a request for an extension of time to file its return. It sought a 40-day extension to December 13, 2005 to file a return. The Board supported the request with a declaration by the Deputy Attorney General assigned to the case. She declared that she “assumes her return must be filed by November 3, 2005.” She claimed that she had been, and would continue to be, too busy with other work to file a return in this case until December 13, 2005.
On November 14, 2005, the superior court filed an order denying the Board’s extension of time request and granting Criscione’s writ petition. “The heavy case load of a single attorney, in the vast Attorney General’s office, is not good cause. Respondent is in default and the petition for a writ of habeas corpus is granted. The order to show cause issued in this case gave Respondent thirty days to file a return. Respondent failed to do so. It was not until forty days after the order to show cause that Respondent obtained a stay from the Court of Appeal for unrelated reasons. Respondent’s petition in the Sixth District was eventually found unmeritorious and the stay was lifted on October 4th. It has now been an additional thirty days and there is still no return. The petition is granted in favor of Petitioner on the issues presented in his petition and as noted in the order to show cause. Respondent is ordered to provide Petitioner a new hearing in conformance with due process as outlined therein. This includes, but is not limited to, an order that, since none of the reasons stated by the Board suffice to show Petitioner’s crime is anything more than the minimum necessary for first degree murder, they may not repeat this erroneous finding.”
On December 1, 2005, the Board filed a notice of appeal. It also sought a stay and filed a petition for a writ of supersedeas. This court issued a stay and later granted the petition for a writ of supersedeas.
II. Analysis
“Because a petition for a writ of habeas corpus seeks to collaterally attack a presumptively final criminal judgment, the petitioner bears a heavy burden initially to plead sufficient grounds for relief, and then later to prove them. ‘For purposes of collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction and sentence; defendant thus must undertake the burden of overturning them. Society’s interest in the finality of criminal proceedings so demands, and due process is not thereby offended.’ [Citation.] To satisfy the initial burden of pleading adequate grounds for relief, an application for habeas corpus must be made by petition, and ‘[i]f the imprisonment is alleged to be illegal, the petition must also state in what the alleged illegality consists.’ (§ 1474, subd. 2.) The petition should both (i) state fully and with particularity the facts on which relief is sought [citations], as well as (ii) include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations. [Citations.] ‘Conclusory allegations made without any explanation of the basis for the allegations do not warrant relief, let alone an evidentiary hearing.’ [Citation.] We presume the regularity of proceedings that resulted in a final judgment [citation], and, as stated above, the burden is on the petitioner to establish grounds for his release.” (People v. Duvall (1995) 9 Cal.4th 464, 474.)
The Board claims that Criscione’s petition was inadequate to warrant any relief because he failed to attach “reasonably available documentary evidence” in support of his claims. (People v. Duvall, supra, 9 Cal.4th at p. 474.) Criscione did not attach to his petition a transcript of the parole hearing, copies of any psychological evaluations or any documentary evidence regarding the nature of his offense such as the trial transcript or the probation report. Such material is normally available and is ordinarily attached to a habeas petition challenging a parole denial. The record before us does not disclose whether this material was available to Criscione, who filed his petition in pro per. His petition makes specific allegations regarding the Board’s findings at the hearing and the nature of the psychological evaluations. While the superior court could have concluded that Criscione’s petition was inadequate on this ground and required him to amend or supplement the petition with such documents or suffer a denial of the petition, we are disinclined to premise a reversal of the superior court’s order granting the petition on this ground.
The first question, in our view, is whether Criscione’s petition alleged facts and grounds that, if true, would justify the relief he sought. The second question is whether the court’s order purporting to grant the petition was based on, and responsive to, the petition’s allegations and prayer.
Criscione’s petition is not a model of clarity. Nevertheless, it adequately asserts that the Board should have found him suitable for parole, he has served sufficient time in prison, and he is entitled to release. His allegations seek to establish that he meets all of the relevant suitability criteria and his time in prison exceeds the top of the second degree murder matrix.
Criscione’s claim that he is suitable for parole and should have been granted parole is essentially a claim that the Board’s decision denying him parole was not supported by “some evidence.” “[T]he 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 . . . 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.” (In re Rosenkrantz (2002) 29 Cal.4th 616, 658.) “As long as the [Board]’s decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court’s review is limited to ascertaining whether there is some evidence in the record that supports the [Board]’s decision.” (Rosencrantz, at p. 677.)
If Criscione’s allegations proved true, the absence of “some evidence” to support the Board’s decision could support a superior court order overturning the Board’s decision. While the OSC seemed to direct the Board to show cause on this ground, the superior court’s order granting the petition did not purport to resolve the “some evidence” issue and did not grant Criscione the relief he sought in his petition, to wit, release. Instead, the superior court’s order granting the petition directed the Board to “provide [Petitioner] with a new hearing in conformance with due process as outlined [in the OSC]” and stated that the Board would not be permitted to rely on “the reasons stated by the Board” previously because those reasons did not “suffice to show Petitioner’s crime is anything more than the minimum necessary for first degree murder . . . .”
The superior court’s order is infirm in several respects. First, nowhere in Criscione’s petition did he seek a new hearing at which the Board would be required to disregard its previous findings and measure Criscione’s crime against the “minimum necessary for first degree murder.” (Italics added.) Criscione sought release on the ground that he was suitable for parole and had served more time than the top of the second degree murder matrix. He did not assert that his offense should have been measured against the minimum necessary for first degree murder. Consequently, the superior court’s order was infirm in granting Criscione a new parole hearing because he had not sought such relief in his petition.
Second, the superior court’s order was based on a ground that was not alleged in the petition and that was not applicable to the allegations in the petition. The superior court’s order purports to be premised on the rationale that a parole decision based solely on the nature of the life crime may be invalid “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.” (In re Dannenberg (2005) 34 Cal.4th 1061, 1094-1095.) Although this is a valid abstract legal proposition, Criscione did not allege in his petition that the Board’s decision was based solely on the nature of his offense. He alleged that the Board’s decision to deny him parole was based on his failure to accept full responsibility for the crime, his failure to demonstrate an adequate level of remorse, the Board’s assessment of the potential danger that he posed to society if released, and the nature of the life crime. The superior court had only Criscione’s allegations to go by and no documentary evidence of the Board’s actual findings at the 2004 parole hearing. Hence, there was no basis for the superior court’s implied finding that the Board’s decision was based solely, or even primarily, on the nature of Criscione’s offense. Indeed, the superior court had nothing upon which to base a conclusion that the Board’s other findings were not supported by some evidence and sufficient to support its decision to deny parole. Certainly Criscione’s allegations, which did not address the Board’s findings, provided no basis for such a conclusion. It follows that the superior court’s order was based on a legal premise that was inapplicable and did not support the restrictions that the court imposed on the Board at the new hearing it ordered.
Third, although Criscione claimed in his petition that he was entitled to parole because his time in prison had already exceeded the top of the second degree murder matrix, no relief is available on this basis because this contention is foreclosed by this court’s decision in In re Honesto (2005) 130 Cal.App.4th 81 and the California Supreme Court’s decision in In re Dannenberg, supra, 34 Cal.4th 1061. “[T]he relevant statutes and regulations that govern parole clearly do not entitle a prisoner to release on parole, regardless of the amount of time served, unless the prisoner is found suitable for parole. [Citations.] ‘The [Board] shall first determine whether the life prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the [Board] the prisoner will pose an unreasonable risk of danger to society if released from prison.’ (Regs, § 2402(a), emphasis added.) ‘The length of time a prisoner must serve prior to actual release on parole is determined by the board.’ (Regs, § 2400.) Only after a prisoner is found suitable for parole will the Board consider the appropriate length of the prisoner’s term and set a parole date. (Regs, § 2401.) The matrices set forth in the regulations ‘are guidelines only,’ and the Board may set a term that is shorter or longer than suggested by these guidelines. (Regs, § 2401.)” (In re Honesto, at pp. 92-93.)
In sum, the superior court’s order granting the petition is erroneous because it grants relief that was not sought, on grounds that were not alleged based on a legal analysis that is either inapplicable or erroneous. While we can understand the superior court’s frustration with the Board’s failure to timely comply with the OSC, and we are not convinced that the Board showed good cause for an extension of time, it is important to remember that the purpose of a return is “to help the [superior] court identify the disputed factual issues so that it can determine whether [an evidentiary] hearing is necessary.” (People v. Duvall, supra, 9 Cal.4th at p. 481, italics added.) Judicial review under the “some evidence” standard requires the superior court to examine the record that was before the Board. Ordinarily, there are no disputed factual issues as to what was in the record before the Board, and it is purely a legal issue whether the record contains “some evidence.” Therefore, it is highly unlikely that a parole case will raise any disputed factual issues that require an evidentiary hearing once the court has before it the record that was before the Board. So the true purpose of the return here would have been to bring before the court the record that had been before the Board, since Criscione had failed to attach the record to his petition.
Under the circumstances of this case, we conclude that a remand is required for further proceedings on Criscione’s allegation that the Board’s decision to deny him parole is not supported by “some evidence.” Upon remand, the superior court may see fit to require Criscione to supplement his petition with the relevant documents so that the superior court will be able to evaluate the merits of this contention. In addition or in the alternative, the court may permit the Board to file a return so long as it does so without delay.
III. Disposition
The superior court’s order is reversed. The matter is remanded to the superior court for further proceedings on Criscione’s allegation in his petition that the Board’s decision to deny him parole is not supported by some evidence.
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Mihara, J.
WE CONCUR:
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Bamattre-Manoukian, Acting P.J.
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McAdams, J.
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[1] The appellate record before us contains no evidence regarding the nature of the offense.
[2] Criscione’s petition challenging the Governor’s 2002 reversal was granted by the superior court, but this court reversed on appeal and reinstated the Governor’s decision.
[3] Criscione alleged that he (1) was “disciplinary free,” (2) has received excellent psychological evaluations showing a low risk of violence, (3) had participated in self help programs, (4) had completed high school, worked continuously and learned several vocations, (5) had maintained family ties, (6) had concrete parole plans, (8) was now 66 years old and (9) had suffered no juvenile or adult convictions other than the life crime. (See Board of Prison Terms v. Superior Court (Ngo) (2005) 130 Cal.App.4th 1212, 1231.) In addition, Criscione alleged that, after the Governor expressed the belief in 2002 that Criscione needed to spend more time in prison, he had spent an additional “two years and three months” in prison.
[4] The writ petition was accompanied by exhibits which included a transcript of the 2004 parole hearing. This transcript was never filed in the superior court, and therefore it is not properly before us in this appeal. Although this court initially granted the Board’s request for judicial notice of its writ petition and exhibits, this court erred in taking judicial notice of the exhibits insofar as they included documents that had not been presented to the superior court in this case. We vacate this court’s order granting judicial notice to the extent that it granted judicial notice of the exhibits to the Board’s writ petition.
