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California Lifers’ Parole Reversals Tossed by Two State Appellate Courts

California Lifers' Parole Reversals Tossed by Two State Appellate Courts

by Marvin Mentor

An infirm, 82-year-old lifer's reversal by Governor Schwarzenegger of the Board of Parole Hearing's (BPH) grant of parole was itself overturned by the California Court of Appeal. The Second Appellate District found there was a lack of "some evidence" that the crimes were "atrocious," and rejected the Governor's contention that the prisoner's late acceptance of responsibility justified denial of parole. Separately, the Governor's reversal of a first-degree murderer's BPH grant of parole was rejected by the First Appellate District. In both cases the California Supreme Court denied petitions for review and requests for depublication.

Wen Lee pled guilty in 1989 to second degree murder and attempted premeditated murder, with two firearm enhancements. He was sentenced to concurrent terms of 17 years to life for the murder and 7 years to life for the attempted murder. In 2005 the BPH found him suitable for parole, noting his psychological reports of "little risk of recidivism" and "very low risk of violence in the community." The Governor reversed the BPH, citing that Lee's crimes were "atrocious" and beyond "the minimum necessary to sustain" his convictions. Additionally, the Governor stated that Lee's acceptance of responsibility was "too recent."

The Court noted that Lee's prison record was spotless and that he suffered total disability from diabetes, heart disease and blindness, and that he was wheelchair-bound. Lee's life expectancy was estimated at perhaps one year. In any event, if Lee were paroled he would be deported to his native China.

The Court focused on Lee's current propensity for dangerousness. Importantly, it concluded that denial of parole must come not from evidence supporting the Governor's "reasons," per se, but rather must devolve from evidence in the record that Lee's release would "unreasonably endanger public safety." Looking to the record, the Court first found that Lee's crimes were not particularly "atrocious"; that is, they were "more commonplace than egregious," and that his conduct was no more than necessary to commit his crimes. As to the timing of his acceptance of responsibility, the Court held that "[s]o long as Lee genuinely accepts responsibility, it does not matter how longstanding or recent it is."

Accordingly, the appellate court granted Lee's habeas petition and ordered that he be released, rather than have his case resubmitted to the Governor, citing In re Scott, 133 Cal.App.4th 573, 34 Cal.Rptr.3d 905 (Cal.App. 1 Dist. 2005), review denied. Lee was subsequently released on parole. See: In re Lee, 143 Cal.App.4th 1400, 49 Cal.Rptr.3d 931 (Cal.App. 2 Dist. 2006).

Jeffrey Elkins was convicted of first-degree murder in a 1979 baseball bat slaying in a drug-related San Francisco Bay Area murder-robbery, after which Elkins put the still-living victim in his car's trunk, only to dump him the next day for dead near Nevada. He then robbed his victim's storage locker and a girlfriend's house and fled to Montana and Washington states before being caught. Elkins did not disclose the location of the by-then animal-eaten body until after his conviction ten months later, to the victim's family's great detriment, and then "didn't show remorse."

In his 11th parole hearing in March 2005, the BPH found him suitable for parole. They did so in spite of Elkins' pre-prison history of drug use and drinking, and the fact that he was on probation for burglary at the time of the murder with a pending charge of grand theft. His recent in-prison record was good, including assisting a guard who had fallen out of a tree while spying on prisoners working in the industries building where Elkins worked. Prison psychologists rated his future violence potential in "the medium to low range."

The Governor reversed the Board. He recited the events of the crime and opined that Elkins would remain a danger to society if released, based upon the severity of the offense. Elkins filed a habeas petition asserting that "some evidence" did not support the Governor's reasons for reversal; specifically, the Governor?s finding that Elkins' statements of remorse were "too recent to warrant parole" and the Governor's finding that the murder was "especially heinous, atrocious or cruel."

As to the recentness of remorse, the Court observed that Elkins' remorse already had been demonstrated 12 years earlier, thus "some evidence" did not support the Governor's determination. And regarding the Governor's argument in court that Elkins could have robbed his victim without hitting him repeatedly with the baseball bat, the Court reasoned that Elkins was committed for murder, not robbery, and that rendered the Governor's reasoning a violation of due process of law.

Accordingly, the appellate court vacated the Governor's reversal and ordered Elkins' immediate release on parole. On February 7, 2007 the California Supreme Court denied the Governor's petition for review in Elkins and his requests to have the appellate opinions in Elkins and Lee depublished. The main significance of the Elkins ruling is that if his crime did not meet the BPH's definition of "exceptionally heinous, atrocious or cruel," most other lifers should be able to gain court relief from governor-parole reversals based upon this arguably unconstitutionally ambiguous basis. See: In re Elkins, 144 Cal.App.4th 475, 50 Cal.Rptr.3d 503 (Cal.App. 1 Dist. 2006).

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