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California: Parole Placement of Serial Killer’s Accomplice in Remote County Upheld

On March 13, 2012, the California Court of Appeal upheld a decision by the California Department of Corrections and Rehabilitation (CDCR) to place Loren Herzog, a high-profile offender who had been paroled, in a remote county rather than the county where he last resided or some other, putatively more suitable community. The placement decision was challenged by the city and county to which Herzog had been paroled on the grounds that his presence was not in the best interests of the public.

Herzog, 46, was convicted of voluntary manslaughter and accessory to three murders committed by condemned serial killer Wesley Shermantine, Jr. (aka the “speed freak killer”). In July 2010, two months prior to the scheduled completion of Herzog’s 14-year prison sentence, the CDCR began the process of considering where to parole him.
Consistent with state law, which requires that, if possible, a parolee be placed in the county of his or her last residence, CDCR officials first looked into the possibility of paroling Herzog to San Joaquin County. When 17 victims and witnesses objected, however, they were forced to look elsewhere.

The CDCR next considered placing Herzog with his sister in Elk Grove, but that city was within 35 miles of at least one of the objecting victims, and thus, pursuant to statute, Herzog could not be paroled there either. [For more on the 35-mile residence restriction for certain California parolees, see: PLN, April 2013, p. 51].

Eventually, prison officials settled on paroling Herzog to Susanville in Lassen County, to a trailer on the grounds of High Desert State Prison under highly restrictive conditions.
The City of Susanville and County of Lassen filed a petition for writ of mandamus to remove Herzog, which was granted by the superior court.

On appeal, the court’s judgment was reversed. The Court of Appeal, Third District, noted that 1) the legislature gave the CDCR exclusive jurisdiction and full discretion to determine a parolee’s placement; and 2) absent an abuse of discretion, neither the city, the county nor the court could interfere with the CDCR’s parole-placement decisions.

On the record before it, the appellate court found no abuse of discretion by CDCR officials, finding that they had followed the requisite statutory mandates, handpicked a living situation for Herzog, and then tailored it to maximize security and minimize the risk to the local population. Whether another community could (or would) have provided a more suitable placement for Herzog, as both the city and county contended, was beside the point. So long as the CDCR did not abuse its discretion, its decision “must stand,” the Court of Appeal concluded.

PLN readers should note that Herzog died before the Court of Appeal’s ruling. According to the CDCR, Herzog hung himself in the trailer on the grounds of High Desert State Prison in January 2012. At the time of Herzog’s suicide, Shermantine, his former accomplice who now sits on death row, was reportedly cooperating with law enforcement authorities to help them locate the remains of additional murder victims. Both Herzog and Shermantine had blamed each other for the murders. Shermantine was reportedly taken on a field trip by FBI agents in August 2012, to tell them where to look for the remains in wells and shallow graves in San Joaquin and Calaveras counties. In January 2013, he publicly berated the FBI for digging in the wrong place.

The media speculated that Herzog chose to commit suicide rather than face the prospect of a capital trial on murder charges if additional remains of the duo’s victims were found.
Because the case challenging Herzog’s parole placement involved a question of public interest that was likely to recur, the Court of Appeal exercised its discretion to resolve the issues raised in the case despite Herzog’s death, which technically rendered the matter moot. See: City of Susanville v. CDCR, 204 Cal.App.4th 377, 138 Cal.Rptr.3d 721 (Cal.App. 3 Dist. 2012).

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Related legal case

City of Susanville v. CDCR