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California Lifer Newsletter, Issue 42, December, CLN, 2011

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Volume 7 Number 6

CLN #42


Legislation & Initiatives
Senate Bill 391 (Sen. Gaines) (#)
Please see CLN # 41, p. 1; #39, p. 5. SB
391 was to be heard in the Senate Public
Safety Committee next week, but the
bill's author, Senator Ted Gaines, pulled
it amidst strong opposition from most
quarters. The measure's purpose was to
undo Lawrence and allow the Board to
deny parole interminably based solely on
the commitment offense.
Assuming Senator Gaines is not an ignoramus, SB 391 was purposely deceptive.
LSA's Vanessa Nelson wrote:
SB 391 is pol itically exploitive and
unnecessary. Recently introduced by
Sen. Ted Gaines (R-Roseville) with
a flurry of co-sponsors, SB 391 is a
sham, a political stunt and a reckless
waste of legislative time and money.
This politically exploitive bill is based
not on fact, but on the desire of the
sponsors to grab their 15 minutes of
political fame through the old canard
of tough on crime, facts be damned.
Gaines claims that the Board of
Parole Hearings is not allowed to
consider the commitment crime of
life term prisoners when determining
parole suitability. Gaines distorts and
ignores the facts. While the California Supreme Court decision In re
Lawrence precludes the crime from
being the sole reason for denial, any
study of parole hearing transcripts
will reveal that overwhelmingly the
commitment crime is one of the
prime reasons routinely given for

CLN sincerely apologizes for being
late (for the second straight issue)! We
wanted to wait for the publication of
In re Shaputis, rather than producing
a flyer or reporting late on the case in
our next regular issue. We've also had
problems with our printer. Hopefully,
this has been resolved; we will try to
publish issue # 43 by the end of February. Thank you for your patience.

parole denial. A nearly two year-long
study of parole hearings undertaken
by Life Support Alliance that included reading scores of parole denial
transcripts, collating the responses of
nearly 500 prisoners to a post-parole
hearing survey and personal attendance at dozens of parole hearings
reveals a very different picture, this
one supported by facts and numbers.
This study of parole hearings, far
more penetrating than any presented
by Sen. Gaines, revealed that over
65% of time the commitment crime
was cited by parole commissioners as
one of the reasons for denial of parole. In nearly 27% of the cases the
crime alone was given as the reason
for denial. Clearly, and contrary to
Sen. Gaines' assertion, the Lawrence
decision, while requiring parole commissioners to support their reasoning,
has not prevented the board from
using the commitment crime as a
reason for denial of parole.
Perhaps the greatest absurdity
perpetuated by the Gaines' bill is that
it was inspired by the Jaycee Dugard
case. By choosing to pedal his deceit
on the back of this tragedy Gaines
continues the victimization of Dugard and her family. Phillip Garrido,
the convicted perpetrator, was never a
life term inmate under the California
system, was never required to appear
before a California parole board to
prove his suitability. The Garrido
fiasco was a failure of California parole supervision, not parole granting.
Even Gaines' office admitted to LSA
that this bill would not have prevented the travesty of Jaycee Dugard's
abduction. The sole reason to tie this
unscrupulous bill to the Dugard case
is to take unconscionable advantage
of the publicity value.
The hard fact that Gaines neglects to

Continued on page 2

California Lifer Newsletter (CLN) is intended as an informative, editorialized account of
correctional, administrative, judicial, political,
and parole news and events of primary interest
to California inmates serving indeterminate
prison sentences ("lifers") and their families.
CLN's reports and comments are not legal
advice. Except as indicated, commentary in
CLN is the editor's opinion, sometimes based
on input from CLN's readers.
We are not attorneys. CLN is written,
published, and distributed by staff at Miller
Consulting, a firm founded by Donald ("Doc")
Miller, a former physician and lifer who
obtained his law (J.D.) degree while incarcerated. Dr. Miller, assisted by his staff,
including former lifers Joseph Wasko and John
Dannenberg, contracts with several attorneys
in this field to provide consulting services
including research, brief-writing, and follow
up in lifer litigation, administrative appeals,
and prison related matters under the attorney's

As of January 1,2012, approximately 97
lifers on whose litigation we have worked have
been released from prison; we have obtained
approximately 167 grants of habeas corpus
relief-about 20 of these decisions have been
published-e.g., In re Calderon (2010) 184
Cal.App.4 th 620 (now depublished), 2010 WL
1882071; In re Barker (2007) 151 Cal.App.
4th 346; In re Lee (2006) 143 Cal. App. 4th
1400; Pearson v. Muntz (9 th Cir. 2010) 606
E3d 606, 2010 WL 2108964; Ledesma v. Marshall
(E.D. Cal. 2009) 658 ESupp 2d 1155; McCams
v. Dexter (CD. Cal. 2008) 534 ESupp.2d I 138;
Milot v. Haws (CD. Cal. 2009) 628 ESupp.2d
1152 ; Rosenkralltz v. Marshall (CD. Cal. 2006)
444 ESupp.2d 1063; Saldate v. Adams (E.D. Cal.
2008) 573 ESupp.2d 1303; Styre v. Adams (E.D.

Ca1.2009) 635 ESupp.2d 1166; Ellglund v. Sisto
(E.D. Cal. 2009)·ESupp.2d·,2009 WL 3415215

We welcome comments, suggestions, and
inquiries, but due to the quantity of correspondence, we cannot guarantee a reply.
Published by
California Lifer Newsletter
P.O. Box 687
Walnut, CA 91788

CLN is copyright covered and may not be
reproduced in part or whole, distributed,
e-mailed, or placed in a retrieval system
without written permission of the publisher.

r;LN will provide copies of state and federal court case decisions, including those marked (#) in this issue for a nominal fee or
ostage stamps; please see details on page 71, CLN Subscriptions & Services.

Volume 7 Number 6


State Court Decisions

In the article that follows this one, John
Dannenberg neatly summarizes the case
of Shaputis-II and the Court's holdings.
Here, your editor, not an attorney, relates
his personal thoughts on the most irrational and arbitrary holdings of the High
Court in what is most kindly cast as a
predetermined decision designed to promote the Justices' personal beliefs. This
was accomplished by omitting contrary
facts and law and substituting the Justices'
whim, speculation and personal bias for
compelling evidence, publ ished scienti fic
studies, and the requirements for parole
release set forth in a concise, unambiguous
legislative statute.
The Legislature expressly opted in Penal
Code § 3041 to restrict parole suitability
and public safety consideration to the
"timing" and/or "gravity" of commitment offenses. The High Court Justices
personally disagree, based on a whim it's simply illogical, the Justices speculate
- that a person in his mid to late 70's in
failing health who cannot recall the details
or explain his criminality several decades
earlier - would not pose an unreasonable
threat to society if released to supervised
parole. Why is it that the Court, as in
Shaputis-I, cannot cite a single study or
reference to support its "logic"? Because
lone exists. As uniformly determined in

several published studies cited to the
Court, its notion is false. Insight into one's
mindset decades earlier is not predictive
offuture criminality.
The core of Shaputis-Il's "logic" is
explained thusly by Justice Corrigan:
"Rational people, in considering the likely
behavior of others, or their own future
choices, naturally consider past similar
circumstances and the reasons for actions
taken in those circumstances." The lay
Justices thus concocted their own personal
logic to overcome the evidence of eight
consecutive low-risk evaluations by forensic psychologists (seven of whom were
hired by the Board), two of whom fully
expressly considered Shaputis' insight, and
a plethora of published studies finding that
a lack of insight into old behavior is not
an indicator of future dangerousness. But
then, Justice Corrigan was seated by Governor Arnold Schwarzenegger, who also
seated the Commissioner whose decision
Corrigan concocted this 'logic" to uphold.
In order to support its predetermi ned
decision, the High Court deplorably misleads the reader into thinking that Shaputis by-passed the Board's psychologist by
hiring his own expert in order to obtain a
more favorable risk assessment. The court
knew that to be false because in briefing


and then at oral argument it was given
contrary evidence. Summarily, the Board
notified Shaputis in writing that it would
not order a new psychological evaluation
to be conducted for his new hearing, but
would rely instead on the previous one
(which the Governor and Court had used
to reverse Shaputis' previously granted
parole date). Because the validity of the
prior evaluation was called into question
(Shaputis was scarcely queried on his
insight), his attorney astutely arranged for
Shaputis to be evaluated by a renowned forensic psychologist - one with vast experience who has often been quoted and relied
on by the State's courts and who currently
provides evaluations for the Department.
But when Shaputis appeared for his evaluation, he was shocked to meet one of the
Board's assigned psychologists. When the
psychologist refused to permit Shaputis to
phone his attorney for guidance, Shaputis
declined the interview.

Shaputis-II mischaracterizes a comment
by the psychologist regarding Shaputis'
social history, in its effort to justify the
Board's discrediting the entire evaluation. In stating that Shaputis had not had
tumultuous relationships, the psychologist,
who has been employed by the Board and
is keenly familiar with its codified parole
suitability factors, was obviously referring to the legal definition - this factor is
limited to relationships with individuals
other than the victims. The Court was
made aware of that.
The Shaputis-II court also changed the
law in ruling that the Board need not state
all of the reasons for its decisions on the
record. The Court likened parole hearings to criminal trials, in which ajudge
need not set forth all of the grounds for a
decision - a misguided analogy. Criminal
trials are adversarial proceedings. Parole
hearings are not - they are quasi-judicial
fact-finding sessions. Were the Court's
analogy applicable, how then can it hold
Shaputis' exercise of his right to refuse
to verbally discuss his offense, while the
prosecutor in a criminal trial is not permitted even to criticize the defendant for
refusing to testify, and the refusal cannot
be used to convict the defendant?
Both psychologists - the one retained by
Shaputis' counsel, based on an exhaustive
interview focused on his insight, and the
one conducted by the psychologist paid by
the Board, based on the record, concluded
Continued on page 4

CLN/ 3

Legislating yet again from the bench in
By John E. Dannenberg
clear violation of the Separation of Powers
doctrine and under the guise of upholding
When we think of parole hearings, we

Volume 7 Number 6

think of "them" versus "us" - an adversarial battle grounded in "tough on crime"
bias and politically charged anti-lifer sentiment. With the vast majority of hearings
resulting in denials - concluding with
such plastic admonitions as "remain disciplinary-free" and "earn positive chronos"
- the current process only exacerbates
lifers' frustration, demoral ization, and
loss of hope. Being found "unsuitable" is
thus worse than just not going home, it is a
regressive experience.
But what if the Board instead administered the law consistent with Penal Code §
3041 (a)'s mandate to "normally" grant parole by guiding the unsuccessful candidate
with specific goals so as to achieve eventual parole? The concept proposed here
is to morph parole consideration hearings
from adversarial grant/denial battles, into
pre-parole guidance sessions wherein any
unsuitability finding is supplanted with
a suitability achievement plan tailored to
that lifer's individual needs.
It has been said that a panel grants parole only after it gains a "warm and fuzzy"
feeling about the lifer. This follows when
the panel sees evidence of lasting change
in the candidate's persona - often the
result of a concerted effort by that lifer to
alter his/her lifestyle by gaining a wholly
new perspective. If the panel does not
find this evidence, it usually just tells the
lifer that his/her presentation is lacking
in substance, credibility, or both. Often,
the panel's decision amounts to little more
than a kick in the groin, concluding with
the empty gesture, "Good luck."
Gaining the credentials to be found
suitable is much more than just "luck,"
however. It requires letting go of old feelings, negative associations (such as gangs,
racial myopia, and drugs), and chucking
the ingrained defensive mechanisms lifers
often use to minimize their role in the
crime. It requires setting positive goals,
and doing the hard work to achieve them.
But all this presumes that you know what
these goals must be and that you have the
resources available to gain them.
This is where a reoriented Board could
make a difference. Currently, the panels,

Continued on page 6

By John E. Dannenberg and Don Miller

Part I.
Sadly, whether a rehabilitated I ifer dies
in prison or paroles is usually determined
politically. The situation is unlikely to
change until the voters' wrath over the
budget crisis prompts the leaders of our
three branches of government to dispense
with their "tough on crime" actions and
Our state government mirrors the model
of the federal government by having three
competing branches: Legislative, Judicial
and Executive. These branches "compete"
in the sense that they have limited control
over each other. The system basically
works like this. The Legislature creates
a new law, but it is not enacted unless and
until the governor's (executive) time period to veto it expires. The law is nonetheless subject to interpretation by the judicial branch, which can include challenges
to the law's constitutionality, as well as
fine-tuning of actual legislative intent.
That is not the end of the competition. While legislators and the governor
are directly elected by the people, judges
are appointed by the governor, subject
to confirmation by the legislature. State
appellate judges serve a term longer than
that of the governor, so their appointment
has a lasting effect that transcends shifts
in voter sentiment. Assembly members
(legislative branch), on the other hand, are
subject to reelection every two years, and
must maintain a tight interaction with current voter sentiment.
It boils down to this: Each elected public servant is constantly concerned with
his/her "poll" numbers - how he/she is
faring for eventual reelection. Not surprisingly, they are also beholden to donations
from special interest groups, which expect
their chosen nominees to carry out their
personal agendas.

the separation of powers between the judicial and executive branches, in the latest
incarnation of the ongoing Shaputis saga,
the California Supreme Court once more
ignored the legislative mandate set fort~
in Penal Code Section 3041 that parole IS
the rule, not the exception, reaffirmed its
erroneous theory that the Board has almost unlimited discretion to make parole
decisions, and gutted the already woefully
inadequate "some evidence" standard for
court review of parole denials. In doing so
the Court distorted Shaputis' purported refusal to undergo an FAD psych evaluation
which I clarified during oral argument,
and completely ignored the fact I pointed
out that there could be no nexus between
Shaputis' purported lack of insight and his
current dangerousness because all eight
psychological experts who have evaluated
Shaputis over the years found him to be
a "low" or "no greater than the average
citizen" risk of violence if released, including two state psychologists who found
this despite opining that he lacks insight
into his crime. The Court refused to even
consider the Board's 5-6% parole grant
rate over the past 21 years as evidence
that the current dangerousness exception
has swallowed the parole-shall-normallybe-granted rule mandated in Penal Code
Section 3041(a), making it crystal clear
why the Board feels no compulsion to give
any credence to the Court's repeated but
obviously hollow admonitions that the
exception cannot swallow the rule.
The end result is that an aging, ill
Richard Shaputis and many other lifers
who have earned the right by law to go
home, will die in prison. While that may
not be a concern to the seven members of
the California Supreme Court, it is a clear
violation of the law. The sad truth is that
in its implacable hostility to lifers and its
disdain for the Legislature, the Court has
sanctioned an egregious violation of due

Labor unions are well known special
interest groups. For example, the prison
guards union (CCPOA) sets union dues
high so as to build up a "war kitty" for
support of legislative and executive candidates who will push for increased prison

Now that Shaputis II is over and Senator
Gaines' invidious Senate Bill 391 to overturn the Lawrence decision has been withdrawn from consideration in the face of
certain defeat, I believe it is now our turn.
Since lifers have no hope of receiving
fairness or justice from our highest state
court, legislation needs to be introduced

Continued 011 page 6

Continued on page 6
CLN/ 5

Volume 7 Number 6



BPH News

More of the Same
Juliet McCauley, the only commissioner
not of law enforcement/peace officer ilk,
resigned on November 1st.
Pete Labahn, a former Riverside County
Sheriff of 25 years, who resigned a year
ago after one year on the job, asked for his
old job back and was promptly re-seated
by the Governor. Labahn's hyper-intellectual grounds for denying parole were off
the wall. Now he's back.
The current BPH Commissioner lineup
presents no cross-section as required by
Penal Code § 5075: all are former executive branch/law enforcement/peace
officers; less than 20% are female; 0% are
from the State's largest industries; 0% are
from the lower or lower-middle economic
strata; 0% are qualified by education and
training to predict recidivism (psychologists, psychiatrists, clergy, judges, clergy,
Arthur Anderson
Jeffrey Ferguson
Dan Figueroa
Cynthia Fritz
Jack Garner
Pete Labahn
Howard Moseley
John Peck
Michael Prizmich
Gilbert Robles
Terri Turner

by the Board's psychologists has proliferated. The cages are placed inside the
interview room. Because guards are
not allowed to be present during these
confidential sessions, staff's justification for caging - that it frees up staff - is
nonsense. Caging the Department's best
behaved inmates for these important sessions is asinine and unjustified.
Lifers, especially those who have never
been caged for these sessions in the past,
should inform their interviewers that a
request by the psychologist or attorney to
dispense with the cage is usually honored.
CLN would like to hear more details on
the subject from all lifer institutions. The
Board's help in eradicating this process
(unless a rational ground for it exists in a
particular case) could be effective.


parties, including this editor, for input on
perceived problems and possible solutions.
The Board has asked the Department to
resolve the issue of the Deputy DA's being
allowed to bring their laptops to lifer hearings, while lifers' attorneys are prohibited
from doing so. The Board is investigating
having the State place the hiring, training,
and oversight of lifer hearing attorneys currently hired and trained by the Board in an outside entity. Several Commissioners have been enrolled in and attend law
school training on the key factor in parole
determination - evidence. Also being
sought is a way to expedite the decision
review process in select cases. Time will
reveal the sincerity of these efforts.



The Board's new Executive Officer,
Jennifer Shaffer, has consistently indicated
a willingness to work to improve some
longstanding problems and inequities in
the parole determination process for lifers,
including opposition to the unnecessary
use of restraints at suitability hearings,
increased education and training of the
Commissioners, and divesting the Board
of its control over the psychologists who
perform critical lifer risk evaluations.

Vanessa Nelson of Life Support Alliance
continues to report on her dogged pursuit
of answers to the mysterious manner in
which some personal contacts apparently coaxed an official of the Office of
Administrative Law (OAL) into a V-turn
to approve the Board's proposal after the
OAL had soundly trashed it based on
the Board's utter failure to satisfy OAL
rulemaking requirements. Without any
further response to or resolution of dozens
of inadequacies that led OAL to reject the
proposal in the first instance, and without

Ms. Shaffer has met with several involved

Continued on page 8

All parole suitability hearings conducted
at Avenal during the week of December
5-9, 2011, will be rescheduled. The Board
reports that it lost the computer card on
which those hearings were recorded. The
Board is attempting to provide the same
Panel(s) for the re-hearings, tentatively
scheduled for early February 2012.








CLN is interested in learning whether
any of these re-hearings produces a different result than the initial hearing.

The increased use of tiny (about 30"
square) steel cages to confine lifers when
they are interviewed by their attorneys and


Volume 7 Number 6


Federa l Court Decisions

Cavazos v. Smith (#)

u.s. ___ ; 132 S.Ct. 2; 2011 WL 5118826
u.s.s.c. #10-1115 (October 31, 2011)

Shirley Smith was convicted in California of second degree murder on the theory
of assault on a child resulting in death.
(CA Penal Code § 273ab.) The Ninth Circuit had reversed the state court judgment
after determining that there was insufficient evidence within the state's expert
opinion testimony to support a conviction
"beyond a reasonable doubt."
The Ninth Circuit had relied upon
Jackson v. Virginia (1979) 443 U.S. 307,
which allows for such a reversal based
upon insufficient evidence. The U.S.
Supreme Court overruled, holding that it
was a misuse of Jackson when a federal
court reverses a state court ruling simply
because it disagrees with the state court.
Rather, the correct standard was whether
the state court decision was "objectively
The Court of Appeals in this case
substituted its judgment for that of
a California jury on the question
whether the prosecution's or the defense's expert witnesses more persuasively explained the cause of a death.
For this reason, certiorari is granted
and the judgment of the Court of Appeals is reversed.
Dissenting justices Ginsburg, Breyer,
and Sotomayor would have let the Ninth
Circuit ruling stand, observing the weakness of the nonmedical evidence, newly
advanced theories (since the 1997 conviction) in the field of shaken baby syndrome,
and ineffective assistance of trial counsel.
Please see Of Interest to Lifers, this issue
(Clemency Petitions).

Joseph v. Swarthout (#)
2011 WL 6293369
U.S.D.C. (E.D. Cal.) No. 11-0260
(December 13, 20 II)

John Joseph had filed a pro per 28 USC

§ 2254 habeas petition alleging that the
Board is biased against granting parole at
initial hearings, given their documented
record of a 99.7% rejection rate at initial
hearings - versus the state law's requirement to "normally" grant parole at the initial hearing. (PC § 3041 (a) .) (Joseph had
also challenged his 2009 parole denial,
but this was dismissed earlier, pursuant
to Swarthout v. Cooke, 178 L.Ed.2d 732
Magistrate Judge Gregory Hollows analyzed how "bias" is to be discerned in a
claim of denial of due process of law. "In
order to succeed on a biased parole board
claim, petitioner 'must overcome a presumption of honesty and integrity in those
serving as adjudicators.'" ... "To attempt
to frame a claim of unconstitutional bias,
a plaintiff must show that the adjudicator
'has prejudged, or reasonably appears to
have prejudged, an issue.'" Bias, in turn,
may be either "actual" or "systemic."
Joseph had claimed "systemic" bias a policy of commissioners to not grant
parole at initial hearings.
Petitioner points to the BPH commissioner in his own hearing wherein
petitioner avers he was told he was
the best candidate for parole the
commissioner had seen, that he had
successfully rehabilitated, and that
he put the R in CDCR; notwithstanding, the BPH simply refused to grant
parole at initial hearings. Petition,
p. 59. Petitioner's claim is that this
alleged practice violates the statutory
presumption that prisoners will be
granted parole at initial hearings. Id.
The court found these facts sufficiently
specific to make out a claim of "systemic"
The instant allegations are sufficiently distinguishable, however, to
frame a bias claim. Petitioner is quite
precise in providing a percentage of
denials, and in allowing that some
(albeit a minuscule amount) initial
BPH hearings result in parole grants.
Nor are petitioner's allegations
altogether conclusory, inasmuch as
petitioner does allege specific supporti ng facts ....
In this case, that circumstantial evidence from which an inference can
be drawn is the alleged 99.7% denials
of parole despite statutory directive
which might indicate that parole eligibility could very well be granted at


a much higher percentage. Such an
over whelming statistic of denial
gives rise to an inference of a preordained determination, i.e., bias
on the part of BPH decision makers.
Although petitioner has, as respondent points out a significant burden to
make the requisite showing of bias,
and the undersigned by no means
has made any factual findings of bias
herein, petitioner has made sufficient
allegations to withstand a motion to
summarily dismiss.
Accordingly, Magistrate Hollows recommended the motion to dismiss be denied.
If this is approved by the District Judge,
the state has 60 days to answer the petition.

Singer v. California Board of
Prison Hearings (# )
2011 WL 6749827
U.S.D.C. (E.D. Cal.) No. 11-2932
(December 22, 2011)

Dana Singer filed a 42 U.S.c. § 1983
civil rights complaint against the Board
asking for injunctive relief and damages
for the Board's having denied him parole
purportedly based on a finding of "some
evidence," rather than on a preponderance of the evidence. Singer relied on the
Board's definition in 15 CCR § 2000(b)
(50), which provides: "Good Cause. A
finding by the board based upon a preponderance of the evidence that there is
a factual basis and good reason for the
decision made."
The court denied any relief under a
due process claim, citing to Swarthout v.
Cooke, 131 S.Ct. 859, 861 (2011).
[T]he Court specifically rejected the
notion that there can be a valid claim
under the Fourteenth Amendment for
insufficiency of evidence presented
at a parole proceeding. Id. at 862-63.
Rather, the protect ion afforded by the
federa l due process clause to California parole decisions consists solely
of the "minimal" procedural requirements set forth in Greenholtz, specifically "an opportunity to be heard and
... a statement of the reasons why
parole was denied." Swarthout, 131
S.Ct. at 862
Singer's claim that the federal court
should uphold a state administrative
Continued on page 10

CLN/ 9

Volume 7 Number 6


Of Interest
STAFF, (cont'd from page 10)

fraud, following an FBI investigation. Zamudio is charged with smuggling cellular
telephones and tobacco products into the
prison for which he reportedly received
$33,600.00 between February 2009 and
October 2010, via payments through MoneyGram or Western Union.
CDCR psychologist fakes her own
rape, robbery. Laurie Ann Martinez,
a senior psych at Folsom, faked her own
rape, apparently to persuade her husband
to move to a safer neighborhood. Martinez split her lip with a pin, scraped her
knuckles with sandpaper, had her friend
punch her in the face, and even wet her
pants to give the appearance she had been
knocked unconscious.
Charges filed by the Sacramento County
DA allege that Martinez conspired with
her friend to create the appearance that
she was beaten, robbed and raped by a
stranger in April in her Sacramento home.
One of Martinez' prison co-workers ratted
on her, telling police that Martinez had
been talking at the prison about faking a
crime at her home to persuade her husband to move from a blighted, high-crime
area three miles north of the state Capitol.
It didn't work. Instead, the couple filed
for divorce six weeks after the April 10
incident, according to court records.
Martinez reported she had come home
that day to find a stranger in her kitchen.
"As she tried to run away, the suspect
grabbed her and hit her in the face," court
records say in describing what she told
police. "She lost consciousness and then
when she awoke she found her pants and
underwear pulled down to her ankles."
Missing from her home were two laptop
computers, Martinez's purse, an Xbox
video game console, a camera and numerous credit cards that Martinez said the
stranger had stolen. In reality, the items
were all at the home of her friend, Nicole
April Snyder. Investigators say Martinez
had Snyder punch her in the face with boxing gloves they bought for that purpose.
Martinez began crying hysterically when
police arrived, according to court papers.
Martinez is free on $50,000 bond. She
was redirected to CDCR headquarters in
May, and has had no contact with inmates
since then. Snyder is charged with the
same conspiracy counts, and a warrant has
been issued for her arrest; she faces up to

3 years in prison.
Each count of wire fraud carries a maximum penalty of 20 years' imprisonment
and a $250,000 fine.
"Bad Hair Bandit" turns out to be a
prison nurse. In August, Cynthia Van
Holland and her husband, Alonzo, were
arrested following their robbery of an
Auburn, California bank. Van Holland,
appropriately nicknamed the "bad-hair
bandit," met Alonzo when he was serving
time at an Idaho prison where she worked
as a contract nurse. Van Holland is believed to have robbed 20 or more banks in
Oregon, Washington, and Montana.

Court Holds that Judge Acted
Improperly in Removing a Juror who
Questioned a Witness' Reliability in
Gang Members' Murder Trial
After upholding nearly 50 consecutive
death sentences, the California Supreme
Court broke its pattern by reversing the
convictions of a reputed gang leader in
Los Angeles and his accomplice in two
murders that sent both men to death row.
The Court unanimously ruled that
Cleamon Johnson and Michael Allen,
convicted of killing rival gang members
Peyton Beroit and Donald Loggins in
1991, were denied a fair trial when ajudge
removed ajuror who appeared to be critical of the prosecution's case. The court
cited a lack of evidence to support Judge
Charles Horan's decision to remove the
juror for prejudging the case and relying
on evidence outside the 1997 trial.
Johnson, known as "Big Evil," headed a
gang called the 89 Family Bloods during
the 1980s and early '90s that authorities contend was responsible for about 60
killings in South Los Angeles. He was
convicted of ordering Allen to kill the two
rival gang members with an Uzi. Johnson
also was charged with a third killing and
two attempted killings but a different jury
deadlocked on those charges in 1999.
The court said the juror who was
removed was deliberating properly and
relying on experience, not bias, to evaluate
a prosecution eyewitness. The court explained, "It may be argued that Juror No.
II's conclusion was based upon a weak
premise or rested upon an over-broad


inference ... Jurors, however, are the
judges of credibility, and conscientious
jurors may come to different conclusions.
It is not the province of trial or reviewing
courts to substitute their logic for that of
jurors to whom credibility decisions are
The DA has not determined whether
to appeal to the United States Supreme
Court: "We're disappointed but reviewing
our options." Johnson's lawyers said they
were "angry and frustrated" that it took
so many years for the state high court to
decide the case. "This case involved truly
outrageous conduct by the trial judge, who
kicked a juror off the case in the middle of
deliberations because it was reported by
another juror that he was not persuaded by
the prosecution's case .... Reversal was a
foregone conclusion."
Johnson sat on death row for five years
before getting a lawyer to handle his appeal, and the California Supreme Court
waited many more years to decide the
case after it had been fully briefed. "One
of the primary reasons these cases take so
long is the shortage of competent lawyers
willing to handle capital appeals in the
California Supreme Court - and a key
reason why is the perception that the court
does not undertake a careful, meaningful
review of these cases," the PD said.
Prosecutors said Johnson was a "shot
caller" in the street gang and presented a
witness who testified that he heard Johnson order Allen to kill the victims. The
juror who was dismissed had expressed
doubts about the witness's credibility.
After two other jurors complained about
him, Judge Horan interviewed the entire
panel before discharging the juror.

CDCR recently updated the Three-Judge
Court on its progress toward meeting the
court's directive to reduce inmate population to 167 percent design capacity, or
133,000 inmates by December 201 I. The
report has not been made available to us,
but the Department released this statement:
"California has already reduced its
prison population significantly over
the past several years. Today, we have
the lowest crowding levels in California's prisons since 1995. Our goal is
to meet the Court's order by continuing to reduce prison crowding while
Continued on page 12


Volume 7 Number 6


From Life Support Alliance
Vanessa Nelson of LSA has been
extremely active in observing the BPH
parole suitability hearing process for lifers. While I and perhaps some lifers and
their attorneys may not agree 100% with
her observations and suggestions (mainly
due to personal experiences - and there is
certainly more than one approach to this) ,
Vanessa's observations and conclusions
seem to be far more practical than what
we've read from various lawyers, their
newsletters, and would-be lawyers.

Members of Life Support Alliance's
executive board have been granted permission to attend parole hearings as non-participating observers. Since August of 2011
we have been in attendance at assorted
hearings in a number of prisons and plan
continue this monitoring activity in 2012.
Our attendance at parole hearings marks
the first time in dozens of years that stakeholders, other than attorneys, members of
the media or Senate staffers, have been
allowed to sit in on parole hearings.
We do not participate in the hearings,
other than to identify ourselves for the
record, but we do listen carefully, make
copious notes and offer observations to
Board of Parole Hearings Executive Director Jennifer Shaffer. These observations
cover the gamete of hearing procedures
and we do our best to note and comment
on the good, the bad, and the truly ugly;
and there have been several incidences of
all three categories.
LSA undertook attendance in parole
hearings in an effort to gain understanding ("insight" if you will) into the hearing
process and the standards used by commissioners to determine suitability of prisoners. While we have reviewed literally
hundreds of hearing transcripts and have
gleaned from them much useful information, transcripts are one-dimensional and
are no substitute for watching hearings
unfold. Each parole panel, indeed, each
prison, adds a different ambiance to the
There are, however, several common
threads running through hearings, virtually independent of who the commissioners are. In recent years the courts have
granted parole commissioners what the
courts have termed "broad discretion" in
determining what factors are markers of
parole suitability and how much importance or weight those factors carry.

This was reiterated most recently in the
late December California Supreme Court
Shaputis II decision .
Herewith put forth those factors we have
found to be the most frequently discussed
and considered by current panels. As
always, we remind our readers LSA is not
an attorney group and we are not proffering legal advice; we are merely reporting what we have found to be the factors
parole panels are currently considering.
Of all aspects of suitability considered
by the panels the one most often discussed, mentioned and considered is selfhelp, a rather undefined and nebulous term
that can mean anything from attendance
at AA meetings to book reports. But by
far the question most often asked potential
parolees is whether they have attended
AA/NA meetings, and if not, why not.
Although many pri soners are reluctant
to attend AA meetings because of the
spiritual basis of the organization, it is, for
better or worse, right or wrong, the hands
down favorite of commissioners. This is
not to suggest it is the only acceptable
self-help program, but it is the best known,
best documented and best understood by
the commissioners and therefore the leading contender.
Other self-help strategies are viable, but
the panels seem most accepting of those
individualized activities that are tied to
an organized program. Many prisoners
who are unable to access AA/NA programs or for whom such programs are not
comfortable have produced viable selfhelp strategies by reading self-help books
and writing reports. These, however, are
not your high school English class book
reports. The books should be germane to
character improvement on such issues as
substance abuse, anger management and
empathy and the reports need to be more
than just a recitation of content; commi ssioners routinely ask prisoners what
specifically they gained from reading the
books and how they are prepared to apply
those lessons to their lives.
And they are quick to identify and discount what they term "catch phrases," or
words straight from the text; be prepared
to put these ideas in your own words, even
the 12 steps of AA . Commissioners often
ask participants not only to identify a certain step of the 12 but also to explain how
they use that step in their lives. Similarly,
commissioners often question prisoners as
to what they have learned from other selfhelp classes and how they are prepared to
use these new tools in their return to soci-


ety. Participation in any and all self-help
programs, though they are often few and
far between in some institutions, is looked
at favorably the commissioners.
In all hearings the prisoners' "institutional history," or accumulation of
disciplinary chronos, is discussed in great
detail. And while commissioners will often discuss 115s that are years, sometimes
decades old, those that seem to impact
the outcome of hearings most are those
involving violence, contraband and, most
lately, cell phones. And, of course, the
more recent the disciplinary action or the
larger the number, the more problematic
it is. This is one area in particular, where
the advice and intervention of a competent
attorney may make a significant difference
and is also an area where the difference in
commissioners is most apparent, as some
seem able to get past old write ups easier
than others.
A word here about attorneys. It has long
been conventional wisdom that state-appointed attorneys do a less stellar job than
those privately retained by prisoners. This
problem was even briefly di scussed in last
year's commissioner confirmation hearings, when one commissioner confirmed
for Senate Rules Committee members that
at times the difference between a prisoner
being granted a parole date or receiving a
denial could be the attorney and moreover
that private attorneys often had a better
success rate. The parole hearings LSA
has attended have been largely populated
by state appointed attorneys; they have,
on the whole, been routinely competent
and in a few cases, notable advocates. But
there have also been cases when even untrained legal eyes, such as ours, could note
the failures. This is a major problem in
the parole process that we hope to address
with the BPH in coming months.
Commissioners often examine in significant detail the parole plans and support
letters presented by prisoners. Recently
the commissioners have seemed to look
with favor on those plans that include
residence in transitional housing for 30-90
days immediately following parole. Even
if the prisoner has family to whose home
he could parole, the commissioners often
make the case that readjustment to society
after decades in prison is a daunting task
(no surprise there) and transitional living
facilities often provide a buffer that is
helpful to that readjustment. Although not
required, it is a component that is frequently viewed and commented on by the
Continued on page 14

CLN/ 13

Volume 7 Number 6


POLITICS, (cont'd from page 14)
A TV ad against Governor Dukakis in his
subsequent U.S. Presidential bid depicted
a revolving door for prisoners - and cost
Dukakis the election. No political candidate since has forgotten this.]
Where is the end to this dilemma for
lifers? Ultimately, it rests on two real life
facts. One, the record of lifers on parole is
unassailably exemplary, in fact, astounding. Their likelihood of committing a violent crime is statistically no greater than,
and perhaps less than that of the average
citizen. Two, elected officials, and their
appointees, are stuck with an ever worsening state budget crunch. It just might
occur to them that their own political
lives - the largest concern guiding their
decisions in office - would be lengthened
if they (even if only quietly) used their authority to cut the huge waste in tax dollars
resulting from keeping lifers incarcerated
long past the punishment terms set by the
Legislature, pronounced by the judiciary,
and approved by the governor.

SHAPUTIS II, (cont'd from page 6)
5. In re Prather is overruled to the extent
it prohibits the courts from exercising their
habeas discretion to fashion any relief
that is necessary to protect the inmate's
liberty interest in parole, including an
inmate's immediate release and imposition
of monetary sanctions against the Board
or governor for knowingly violating that
While obtaining passage of such a bill
will be extremely difficult, given the
state's budget crisis and the extraordinary
expense of incarcerating parole suitable
lifers, now is as good a time as any to
try. And if we do not succeed, perhaps
we need to place this on the ballot as an
initiative. In any event, we can no longer
sit back and let the California Supreme


Court give the Board and Governor carte
blanche to violate the law and the constitutional rights of lifers with impunity.

stops far short of the extensive changes
proposed under a previous reform measure
that narrowly failed in 2004.

SENATE BILL 9, (cont'd from page 2)
of rehabilitative, educational, or vocational
programs, if those programs have been
available at his or her classification level
and facility, using self-study for selfimprovement, or showing evidence of

The Legislature and voters passed the
Three Strikes Law in 1994 after several
high-profile murders committed by exfelons sparked public outrage, including
the kidnapping from her Petaluma home
and strangling of 12-year-old Polly Klaas.
Since then, the courts have sent more
than 80,000 "second-strikers" and
7,500 "third-strikers" to state prison,
according to the state Legislative Analyst's Office. Though third-strikers make
up just 6 percent of the prison population,
they are responsible for a disproportionate
share of the state's spiraling prison health
care costs -- at least $100 million annu!illy -- as they age and need more medical attention, according to the California

(vii) The defendant has maintained family
ties or connections with others through
letter writing, calls, or visits, or has eliminated contact with individuals outside of
prison who are currently involved with
(viii) The defendant has had no disciplinary actions for violent activities in the last
five years in which the defendant was
determined to be the aggressor.


Senate Bill 490 (Sen. Hancock) (#)
Please see CLN # 40, p. 6. While we
await the Senate's action (a Public Safety
Committee hearing on January 10th will
review the measure for placement on the
November ballot), SB 490, which will substantially amend the Three Strikes Law,
is gaining momentum . (Please see other
articles on the status of California's death
penalty, in Of Interest section.)
The proposed ballot initiative would
reserve the toughest penalty -- 25 years to
life -- for the baddest of the bad, including murderers, rapists and child molesters .
The initiative was drafted by a group of
Stanford University law professors and

The previous measure, Proposition 66,
sought to restrict felonies that trigger a
"third" strike to violent or serious crimes.
Under the existing law, life sentences
have been issued for such relatively minor
crimes as stealing a pair of socks, attempting to break into a soup kitchen to get
something to eat and forging a check for
$146 at Nordstrom.
In contrast, the new initiative allows
certain hard-core criminals, including
murderers, rapists and child molesters, to
be put away for life for any felony, including shoplifting, while restricting the third
strike to a serious or violent felony for
everyone else. "We're making absolutely
sure that these (hard-core) criminals get
no benefit whatsoever from the reform,
no matter what third strike they commit,"
said Dan Newman, a spokesman for the
The group, including Stanford Law

Continued on page 16


CLN/ 15

Volume 7 Number 6


Of Interest
BUDGET CUTS, (cont'd from page 16)

II-III Sensitive Needs Yard; VSPW is being converted to a level-IIII Men's facility.

Because of the large number of parole
violators, or "churners," heretofore being
returned to state custody for relatively short
periods of time, the average reception center entrant remained in the prison system
an average of 3.8 months, many never
leaving the reception centers. The months
from November 2010 through February
2011 will see the biggest changes and reductions in population, according to Meier.

In November 2011

The number of prisons housing reception
centers will decrease and every county
in the state, with the exception of Los
Angeles, will be assigned a specific prison
reception center where its prisoners will
be received. Because of the numbers of
prisoners committed to state custody from
Los Angeles County, no one prison can
adequately process all intakes, so prisoners from LA will be distributed over the
The prisoner cohort expected to be
impacted the most by these changes is the
female prisoner population, which Meier
said CDCR expects to see drop by about
30%, over 2,800 prisoners by June 2012.
Meier noted that while an average of 971
women prisoners were received into the
state system in the months leading up to
realignment, CDCR expects only 177 new
female intakes each month by January
2012. As population reductions play out
over the coming months the Department
expects to see a significant reduction in
the numbers of Level I and II prisoners
as well. By June 2012, projections are
for 4,700 less Level I inmates and nearly
4,000 less Level II inmates. Reductions in
the populations of Levels III, IV and SHU
housing are expected to be more limited.
It doesn't take a mathematician to figure
out that as these changes play out the lifer
cohort, now about 20 % of total prisoners,
will eventually constitute a larger share
of the prison population. The eventual
percentage of prisoners lifers will constitute depends on many variables, not the
least of which is the number of lifers found
suitable and released on parole. All this
shifting has necessitated a change in the
"mission" assignments of various prisons,
in determining the security level of the
inmates they will house.

Following is a simplified list of the
changes in mission and housing level
CDCR now expects to make. In all prisons
listed the reception center facilities operated at those prisons will be closed CIM
(RCE)-East has been converted to a Level

• DVI will convert to a Level III GP
• RJD Facility 2 will become a Level III
SNY; one building in Facility 4 will be a
• San Quentin will no longer house a
reception center and will become a Level
II GP with significant numbers of lifers
transferring from Solano

In December 2011
• Facilities A at High Desert, North Kern,
and Wasco will become Level III GP

In January, 2012
• CIW and VSPW will deactivate their
reception centers; all female intakes will
be at CCWF VSPW will be converted to a
men's level I-II facility.

In February, 2012
• The female SHU will move from VSPW
• LAC B yard will become a Level IV
GP, with more opportunities available for
Honor Yard programming
• LAC D will convert to Level IV, though
final determination if this will be SNY or
GP not yet made
• CCI Facility 3 will convert to a Level III


One final caveat: as with all things
CDCR, every decision is subject to change
at the last minute. The above information
represented CDCR's plan as of October

CDCR has issued a bulletin based
on its 2011 Adult Institutions Outcome
Evaluation Report, which shows that the
inmate recidivism rate has "declined" to
65 % in 2011, a "significant" reduction of
2.4 percent, which equates, CDCR says, to
2,766 fewer offenders returning to prison
and approximate savings to California taxpayers of $30 million.
"A major goal for CDCR and for other
public safety officials is to prevent offenders from victimizing again after their
release from incarceration," said CDCR
Secretary Matthew Cate. "Even a slight
drop in the overall percentage can equate
to thousands of inmates who have not
returned to prison and likely prevented the
victimization of countless citizens. Reducing recidivism has been a primary goal
for our agency, and this report shows that
progress is being made."
Key findings in the report include:

Continued on page 18

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Volume 7 Number 6


Of Interest
SHU, (cont'd from page 18)
and inmates involved in acts of


"Those are the people we should put
in places like the SHU," he said.
Former corrections officials say the
transfer could extend to hundreds
of prisoners if the department uses
a criteria that focuses largely on
an inmate's behavior. Corrections
spokeswoman Terry Thornton said
it was impossible to speculate on
precise numbers until the new policy
guidelines are finished.
A 2007 study commissioned by the
corrections department recommended establishing "Security Threat
Groups" and focusing on the biggest
troublemakers inside those groups, so
inmates are not locked in the Security Housing Units merely for alleged
affiliation with a prison gang.
Kernan said officials were looking
closely at the report's recommendations but would approach any
changes to the Security Housing
Units with caution.
"We are not going to be pushed by
the inmates or their advocates to
change policy of this magnitude and
get people killed," he said. "We're
going to do it slow and methodical
and make sure we're doing the right

As reported in this issue in Legislation & Initiatives, a proposed Initiative
to extinguish the death penalty may be
on the November 2010 General Election ballot. The California Supreme
Court's new Chief Justice, Tani CantilSakauye, urges the death penalty
should be re-evaluated because it is no
longer effective. A recent article in the
Los Angeles Times detailed the Chief
Justice's sentiments:
Chief Justice Tani Cantil-Sakauye, one
of the high court's more conservative
members, says the death penalty is no
longer working for the state. [She] said in
an interview that the death penalty is no
longer effective in California and suggested she would welcome a public debate
on its merits and costs.
During an interview in her chambers,
as she prepared to close up shop for the
holidays, the Republican appointee and
former prosecutor made her first public
statements about capital punishment a
year after she took the helm of the state's
judiciary and at a time when petitions are
being gathered for an initiative to abolish
the death penalty.
"I don't think it is working," said CantilSakauye, elevated from the Court of Appeal


in Sacramento to the California Supreme Court by former Gov. Arnold
Schwarzenegger. "It's not effective. We
know that." California's death penalty
requires "structural change, and we don't
have the money to create the kind of
change that is needed," she said. "Everyone is laboring under a staggering load."
In response to a question, she said she
supported capital punishment "only in
the sense I apply the law and I bel ieve the
system is fair. ... In that sense, yes."
But the chief justice quickly reframed
the question. "I don't know if the question
is whether you believe in it anymore. I
think the greater question is its effectiveness and given the choices we face in
California, should we have a merit-based
discussion on its effectiveness and costs?"
Cantil-Sakauye's comments suggest a
growing frustration with capital punishment even among conservatives and a
resignation that the system cannot be
fixed as long as California's huge financial problems persist. Her predecessor,
retired Chief Justice Ronald M. George,
was similarly disheartened. A former
prosecutor who defended the state's death
penalty before the U.S. Supreme Court,
George concluded in his later years on the
California Supreme Court that the system
was "dysfunctional."
Cantil-Sakauye, 53, alluded to the proContinued on page 20

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OF INTEREST, (cont'd from page 20)
Volume 7 Number 6


Of Interest
JAIL, (cont'd from page 20)
evaluated after one year.
Editor: It is already deplorable in considering the extent to which California's
jail and prison and inmates and their
families, perhaps the State's most financially devastated citizens, are exploited.
They pay three times the normal costs for
a telephone call and to pay for ordi nary
store items received in packages, even
small money orders sent in by families for
their support are taxed up to half or more
for restitution (half of which goes to state
administrators). The CCPOA makes no
bones about supporting higher imprisonment rates to promote the Guards' Union.
It will probably cost Riverside's taxpayers
twice as much money to try to collect fees
from inmates and their indigent families
as anything that may be collected.

The Los Angeles Times reports that at
least 30 suspended health workers have
cost California more than $8 million since

2006. California prisons have paid doctors
and mental health professionals accused
of malpractice an estimated $8.7 million since 2006 to do no work at all or to
perform menial chores like sorting mail,
tossing out old medical supplies, and reviewing inmate charts for clerical errors.
At least 30 medical professionals have
collected their six-figure salaries for a
cumulative 37 years in a kind of employment limbo after fellow doctors decided
they were too dangerous to treat inmates
but before the state's lengthy discipline
appeals process made a final decision on
whether they should be licensed.
Dr. Allan Yin, whose medical license
was put on probation by the state Medical Board because of incompetence and
gross negligence in connection with
the deaths of two inmates and the near
blinding of a third, received his $235,000
salary for more than a year and a half
while performing such chores. "He actually functioned as, like, the mail courier.
He delivered the institution's mail," said
Nancy Kincaid, spokeswoman for California Correctional Health Care Services, the
receiver in charge of the state's troubled
prison health system.


A federal court imposed the receivership
in 2005 after ruling that prison healthcare
was so bad that it constituted cruel and
unusual punishment. Since then receivers
have been trying to improve treatment and bring down the high cost of disciplining doctors - by replacing poor performers with more qualified physicians.
Dr. Radu Mischiu, a psychiatrist accused
of failing to keep notes on interviews with
patients, including one inmate who killed
himself, has not treated an inmate since
February 2006, records show. His duties
have included sorting inmate mail at
Solano. "Obviously the system is broken,"
said Mischiu, who earns $268,524. He
said he is out on disability leave with a bad
back but suspects he could be sorting mail
again when he returns. "You put people
on the sidelines but then you have to pay
them millions. It's ridiculous."
Before prison healthcare fell under
federal court control, doctors accused of
incompetence were routinely sent home on
paid leave for the duration of the internal
investigation, which often took years.
When the first receiver, Robert Sillen,
Continued on page 22










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WE ARE NOT LAWYERS: Miller Consulting performs the majority of these services
for and under the supervision of licensed attorneys.
P.o. Box 687, Walnut CA 91788
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Volume 7 Number 6



Of Interest
SEMINAR, (cont'd from page 22)
Dickinson noted it does no good to
simply lock people up and expect magical
change. The present system, he concluded,
was "unforgivable and unsustainable."
Realignment, said the Assemblyman, is
the promise of a safer California at a lower
Notable comments and commenters on a
panel addressing the issue of realignment
were Terri McDonald; Director of Adult
Operations for CDCR, Scott Brown, current lobbyist for CCPOA, and Scott Jones,
Sacramento County's lately elected sheriff.
Jones, a vocal opponent of realignment,
decried the problems Sacramento and
other counties will have dealing with the
prisoners now being sent to their faci l ities
instead of the state prison system. He complained the estimated number of ~rison­
ers counties would have to deal wIth was
While the sheriff at one point admitted
neither counties nor the state cou ld "build
[your] way out of' corrections probl~ms,
he none-the-Iess continues to campaIgn
for more funds to expand the county jail
capacity. Jones claimed there are .many
programs available in jail and estImated
that 70 % of those in Sacramento County
custody had substance abuse problems.
Craig Brown, CCPOA's chief lobbyist and presence in the Capitol took the
predictable line, with a twist. Brown
claimed California "got where we are
today" (the controversy of realignment)
because of suits by prisoner advocates and
the "miserable" [sic] failure of AB900,
Schwarzenegger's attempt to bui ld his way
out of overcrowding. His characterization
of AB 900 was perhaps the most accurate
thing Brown said all day. He offered that
overcrowding had "contributed" to substandard medical care for inmates.

Camp-eligible prisoners (under realignment those prisoners will be held at the
county, not state level), thus effectively
endorsing slave labor. He predicted the
failure of realignment due to lack of
resources in counties. In a play to an audience that clearly was not buying into his
line Brown suggested the most important
thing corrections could do now would be
to help with reintegration, though he offered no specifics.
The voice of reason on this panel was
Terri McDonald, Director of Adult Operations at CDCR. Ms. McDonald said that
while early estimates of inmate numbers
going to counties may have been too low,
it is too early to say whether or not those
underestimates will hold true in the long
term . She urged local governmental agencies to work with the CDCR in developing processes to deal with realignme?t
and noted it was "time to stop assessIng
blame." Prison, she noted is a "societal
system failure."
Among other notable comments and
voices on panels throughout the day was
Sahsa Abramsky, noted journalist, author
and activist, who urged the conversation
on corrections become a consideration
of community improvement. He noted
California is under-investing in communities at every level in an effort to massively fund prisons, a process he labeled
a moral disgrace. We cannot, he argued,
let a series of moral lapses make our only
mandate incarceration.


Perhaps Abramsky's most urgent and on
point observations came in his pointed. response to Nina Salerno Ashford, of Cnme
Victims United. Salerno, mouthing the
inflammatory and predictable line of tying
all prisoners to "worst of the worst" child
molesters, arid claiming all three strikers
have violent pasts, warned California is
" wi ll ing to sacrifice a child" to cut costs.
Abramsky, chastised this sort of mindless demonizing, urging the public to stop
being held hostage to fear-mongeri ng
sound bites from conservatives. David
Warren, long-time prison issue advocate,
had perhaps the best take on the attitude
of victim's organizations when he noted
that for victims there is never enough
Sen. Loni Hancock (D-Oakland), chairman of the Senate Public Safety Committee, gave the day's keynote address, laying
out the three keys to solving California's
corrections problems (and there was no
disagreement that California has major
corrections problems) are realignment,
rehabilitation and recidivism reduction .
Sen. Hancock noted California is currently 49th in the nation in education
funding, in no small part because of the
state's failed and expensive prison system.
The Senator, whose committee will consider all legislation dealing with corrections issues, said that implementation of
Continued on page 24






AT Ii-US \-\EAfalAlt'::s ?

(Pardon us, Mr. Brown, but California
did not "get here" today because of prisoner suits; the state got to its present sorry
position in corrections because it faile? to
deal with problems for decades, an attItude
often fuelled by the CCPOA, and because
would-be "tough on crime" Legislators enacted a plethora of laws increasing punishment beyond reason. Overcrowding isn't a
contributor to sub-standard medica l care;
the US Supreme Court ruled it was the primary cause. Prisoner suits aren't the cause
of the problem, they are the remedy.)
Brown went on to decry the loss of
prisoner-manned fire camps due to fewer

CLN/ 23


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Volume 7 Number 6


State Court Decisions
SHAPUTIS II, (cont'd from page 26)
statement also failed to address the
charge that he had molested his
daughter, acknowledging only that
he had "abused ... at least one of my
daughters." In the statement, petitioner discussed his alcoholism, his "low
morality," his deep regret, and his
determination not to "again engage
in such terrible conduct." However,
the Board was left with no indication
that petitioner understood why he
shot his wife, what he had done in the
incidents of molestation, or how his
behavior affected his other daughters.
A general recognition of moral deficiency and alcohol abuse is insufficient to explain an entrenched pattern
of domestic abuse, child molestation,
and a point-blank shooting. Indeed,
the statement petitioner prepared
with the assistance of counsel is so
vague about the nature of his violent
conduct that it might reasonably be
deemed evasive.
It clarified that the Board is not bound by
the most recent evidence in the record (e.g.,
current psych evaluation), and may, upon
finding reason to discredit newer reports,
rely on older ones.
Thus, just as the Board had grounds
to doubt the reliabil ity of Dr. Stark 's
psychological report, it was also
reasonable for the Board to be
unpersuaded by petitioner's written
statement when it considered whether
he had gained the insight that was
found to be lacking in the Shaputis
1 proceedings. (Shaputis I, supra,
44 CalAth 1241.) Indeed, the same
evidence that we found sufficient in
Shaputis 1 was sufficient here to meet
the "some evidence" standard, given
the lack of a reliable record of his
current psychological state. When
there is a reasonable basis to conclude that the most recent evidence of
an inmate's current dangerousness is
less trustworthy than other evidence,
a reviewing court must defer to the
parole authority'S evaluation of the
Judicial review for "some evidence" may
include the entire record
In the only ameliorative consideration in
the opinion, concurring Justice Goodwin
Liu suggested that a reviewing court should
limit its search for "some evidence" to that
evidence actually relied upon by the Board
or Governor. However, the majority was

quick to rebuff this.
Our concurring colleague suggests
that "some evidence" review is
restricted to evidence actually relied
upon by the Board or the Governor.
[] However, nothing in the requirement that a parole denial be accompanied by a "statement of [ ] reasons"
demands that the parole authority
comprehensively martial the evidentiary support for its reasons. (In re
Sturm (1974) 11 Ca1.3d 258, 272.) It
is axiomatic that appellate review for
sufficiency of the evidence extends to
the entire record, and is not limited
to facts mentioned in a trial court's
statement of decision, for instance.
It is of course a matter of routine to
review the evidence referenced in the
parole authority'S decision. Because
the "some evidence" standard is easily satisfied, that is usually sufficient
for the reviewing court's purpose.
But we have never limited the scope
of review to the evidence specified
by the parole authority. Indeed, this
court has relied on evidence omitted
from the decision below to conclude
that findings were not supported by
"some evidence." (See Lawrence,
supra, 44 Cal.4th at pp. 1222-1226;
Rosenkrantz, supra, 29 CalAth at pp.
680-681.) It would be a perversion
of the deferential "some evidence"
standard if a reviewing court were
permitted go beyond the evidence
mentioned by the parole authority to
conclude that a finding lacks evidentiary support, but forbidden from
doing so to confirm that a finding is
supported by the record

Due process claims rejected
Shaputis had argued against the Board's
denial based upon lack of insight violated
his due process rights, in that (I) if he had
denied guilt altogether, he would have been
better placed, under PC § 50 11 (b); (2) denial
for his failing memory of past events effectively converted his sentence to LWOP; and
(3) he would be required to fabricate facts
he does not recall, in order to gain parole.
As to (1), the Court noted that Shaputis did
not deny his guilt, and therefore § 5011(b)
was not implicated. It noted, however,
that an implausible denial of guilt
may support a finding of current
dangerousness, without in any sense
requiring the inmate to admit guilt as
a condition of parole. In such a case


it is not the failure to admit guilt that
reflects a lack of insight, but the fact
that the denial is factually unsupported or otherwise lacking in credibility.
The Court rejected (2) and (3) based upon
Dr. Stark's findings :
His retained psychologist did not
detect any deficit in his memory. To
the contrary, Dr. Stark reported that
when she interviewed petitioner "[h]
is thinking was rational, logical and
coherent.... He presented as average
to above average in functioning ....

His memory was intact. Both remote
and recent memories were intact.
. .. There were no signs of a thought
disorder. His judgment and insight
appeared to be within normal limits.
In general his presentation was
sincere and straightforward." (Italics
added.) Thus, it does not appear that
petitioner's memory pre~ented any
obstacle to his ability to demonstrate
that he had gained insight into his
criminal behavior.
The insight factor
The Court further settled an ongoing complaint in recent California lifer habeas petitions regarding the Board's use of the parole
denial factor "lack of insight," subsequent to
the Supreme Court's 2008 ruling in Shaputis 1 that had crafted that language. Lifers
thereafter found that Board denials were
routinely being grounded in the talismanic
factor, "lack of insight," notwithstanding that the Board's regulations nowhere
mention this term . The Court summarily
rejected the suggestion that the Board's motives in such rulings were suspect.
Here, the Court of Appeal majority commented that the increased
reliance on lack of insight as a factor
"is likely attributable to the belief of
parole authorities" that it "is more
likely than any other factor to induce
the courts to affirm the denial of
parole." That assertion is inappropriate. While it is not unusual for courts
to "struggle [ ] to stri ke an appropriate balance between deference to the
Board and the Governor and meaningful review of parole decisions"
(Lawrence, supra, 44 Cal.4th at p.
1206), speculation regarding ulterior
motives on the part of the parole
authorities has no proper place in a
judicial opinion. Moreover, it is not
unusual for administrative determinations to follow the standards set

Continued on page 28

CLN/2 7

Volume 7 Number 6


State Court Decisions
SHAPUT/S II, (cont'd from page 28)

In any event, the Court found that attempts to take the subjective "insight"
factor out of Board determinations did not
pass muster.
[I]t is difficult to imagine that the
Board and the Governor shou ld
be required to ignore the inmate's
understanding of the crime and the
reasons it occurred, or the inmate's
insight into other aspects of his or
her personal history relating to future
criminality. Rational people, in considering the likely behavior of others,
or their own future choices, naturally
consider past similar circumstances
and the reasons for actions taken
in those circumstances. Petitioner's
argument that the inmate's insight
should play no role in parole suitability determinations flies in the face of
Guidance for future appellate court reviews
To guide future judicial reviews of
parole decisions, after noting that recently
California Courts of Appeal had been
"confused" about the proper scope of review, the Court summarized by laying out
five "relevant considerations."
I. The essential question in deciding
whether to grant parole is whether
the inmate currently poses a threat to
public safety.

2. That question is posed first to the
Board and then to the Governor, who
draw their answers from the entire
record, including the facts of the
offense, the inmate's progress during
incarceration, and the insight he or
she has achieved into past behavior.
3. The inmate has a right to decline
to participate in psychological evaluation and in the hearing itself. That
decision may not be held against the
inmate. Equally, however, it may not
limit the Board or the Governor in
their evaluation of all the evidence.
4. Judicial review is conducted under
the highly deferential "some evidence" standard. The executive decision of the Board or the Governor is
upheld unless it is arbitrary or procedurally flawed. The court reviews the
entire record to determine whether
a modicum of evidence supports the
parole suitability decision.

5. The reviewing court does not
ask whether the inmate is currently
dangerous. That question is reserved
for the executive branch. Rather, the
court considers whether there is a
rational nexus between the evidence
and the ultimate determination of
current dangerousness. The court
is not empowered to reweigh the
With this Shaputis 1/ ruling, the Court
has proactively elevated "insight" into a
central factor for the Board to consider
when determining suitability. The Court
also substantially reduced the "wiggle
room" for California courts to review
challenges to lifer denials of parole, save
those without a "modicum" of decisionsupporting evidence in the record. Pending its resolution of Shaputis II, the Court
had granted "review and hold" on four
other favorable appellate lifer parole rulings (In re Macias, S189107; In re Adamar, S190226; In re Loveless, S190625;
In re Russo, SI93197). It now remanded
those cases for reconsideration consistent
with Shaputis 1/.

In re James Wing (#)
CA4(1) No. 0059403 (January S, 2012)

A scant three working days after the
California Supreme Court mercilessly
bashed the Fourth District Court of Appeal, Div. I's opinion in Shaputis 1/,
Division I granted the petition of a lifer
who had been denied by the Board for
"lack of insight." Citing to the Supreme
Court's still valid guidance from In re
Rosenkrantz (2002) 29 Cal.4th 616 and In
re Lawrence (2008) 44 Ca1.4th 1181, and
paying only passing attention to the new-

Letters to the Editor
We have received, and thank
our readers for submitting some
interesting letters and proposed
We will gladly publish your input, as space and content permit,
but need the writer's permission
to do so, and we reserve the right
to edit or amend content. Thank


est Shaputis II ruling, the court found no
evidence to support the Board's denial.
James Wing, then 41, was convicted
of a 1994 second degree murder. He was
sentenced to IS-life for the murder, plus
4 years for use of a gun . He was denied
parole at his initial parole consideration
hearing in January 2010, based largely on
a generic, unsupported "lack of insight"
finding by the Board.
Wing had gotten into a happenstance
argument with four men coming out of a
Taco Bell, as he drove by. Argument escalated into his driving past them threateningly, which resulted in them breaking a
window in his car. Moore went back to
his apartment, tracked down one of the
men, and shot him. He later called 911
and confessed.
Wing had no history of crime or violence. He graduated from a community
college with an AA degree. He has been
married to his second wife since 1993,
and plans to live with her upon parole.
An honorably discharged veteran, Wing
worked with computers for the Veteran's
Administration for ten years.
In prison he was disciplinary-free,
gained numerous chronos for assisting
training other inmates on computers. His
self-help programming included many
anger management courses. Wing's psych
evaluation reported "low" risk in every
category, accompanied by expressions of
genuine remorse.
During the hearing, Wing repeatedly
expressed his remorse, and took unremitting responsibility: "I'm solely responsible
for the murder of Mr. Moore." Wing explained how he had changed, especially in
regards to reacting to his anger. One major impact on his reorientation came from
the Breaking Barriers program, where
he markedly changed his life through his
"belief window."
The Board denied parole based primarily on its belief he lacks insight, because
he minimized his actions as to the details
of the shooting. The Board called the
crime "a very reckless offense, a murder."
But that was all the Board had, and they
said so.
You have very little else that is not
in your favor. In fact is [sic], I didn't
find anything. Your prior criminality. You have none. Your social
history is stable, was stable, and
continues to be stable. You have no

Continued on page 30


Volume 7 Number 6




• CLN is acknowledged to be a crucial means of support for inmates, particularly for lifers
in their quest for parole. The extensive collective information reported in CLN is not available to
inmates from other sources, including the prison libraries.

• Each issue of CLN demands countless hours of time and an enormous amount of work.
CLN's staff is comprised of but two (2) people.
• CLN is distributed free to prison libraries and the judiciary
• CLN is published and distributed at a net financial loss, which comes out of the editor's
pocket. Accordingly, keeping CLN alive is a constant, never-ending struggle for time and finances.

• Periodically we have received small donations of money and stamps to help defray

• Now, for the first time, we are askinl: the lifer community to please contribute
any funds or stamps you can afford, even small amounts, to insure continued publication of the California Lifer Newsletter.
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California Lifer Newsletter
P.O. Box 687
Walnut, CA 91788

lifer Scheduling and Tracking System
Commissioners Summary
All Institutions ·
November 01, 2011 to 'November 30, 201 1, U
Hearing Totals·
Summary of Suitability Hearing Results per Commissioner









' Y














Suitability Hrg Total





<$> '




I Grants










Den ials
Dental Length AnalysIs per Commissioner (Summary of Denials and Stipulations)






























































I include other actions such as Rescission.
, Documentation, 3 year
Hearings Conducted with more than one "Commissioner" column count on the Hearing Total" line does nol include En Banc Reviews .




Volume 7 Number 6


State Court Decisions


(cont'd from page 34)

paroled, he was not safe to parole (!). The
court rejected this tautology, noted that the
psych nonetheless rated Taylor "low" risk
overall, and went with that finding.
Taylor's 115 history consisted of 4 writeups, the last being in 1996. The court
found that the intervening 14 years of
perfect behavior mooted this early history.
Finding no evidence that supported the
Governor's reversal decision, the court
granted the writ, vacated the Governor's reversal, and reinstated the Board's
original grant. The court rejected, as "an
idle act," the Board's request to remand
the matter to the Governor, citing In re
Masoner (2009) 172 Cal.App.4th 1098 and
In re Dannenberg (2009) 173 Cal.App.4th
237, 256-257.
In October 2011, Derrick Taylor went

In re James Thornton (#)
(unpublished), 2011 WL 5868515
CA4(1) No. D059052 (November 23,2011)

James Thornton, now 49 years old, pled
originally to a second degree murder
committed at age 22, in 1984. His prison
record was exemplary - only one CDC115, over twenty years old; a psychological
report announcing good insight and low
Thornton had been found suitable in
2006, but Governor Schwarzenegger
reversed. At his next parole hearing, in
2007, Thornton was denied for one year.
At his tenth parole hearing, in 2009, he
presented as very sincere, meaning the
panel felt "comfortable" with releasing
him, and it granted parole.
Again, Governor Schwarzenegger
reversed, alleging that Thornton had insufficient insight and inadequate parole plans
(no job). Thornton, in pro per, petitioned
the San Diego County Superior Court,
which denied relief.
The Court of Appeal issued an Order to
Show Cause, and appointed counsel. In
its independent review of the record, the
Court of Appeal found there was no evidence to support the Governor's reversal.
The Court rejected the Governor's reliance
on citations from Thornton's 1988, 1991,
1994 and 2000 psych reports
We note that as he did in Lawrence,
the Governor relies on portions of

stale psychological reports, which
merely reflect the fact that over the
course of time Thornton had psychological challenges to overcome. The
Governor not only fails to recognize
that later reports demonstrate Thornton has overcome the psychological
issues reported in the earlier reports,
the Governor fails to note that even
the reports he relies upon show a
steady improvement over time in
Thornton's psychological health. As
in Lawrence, the stale psychological
reports are not probative with respect
to Thornton's current risk to public
Likewise, the Court threw out the Governor's argument regarding lack of insight.
We must also reject the Governor's
conclusion that Thornton lacks
insight into the circumstances which
caused him to murder Collins. In this
regard we note that when apprehended Thornton not only admitted
to participating in the killing, but
admitted to a version of events which
was far more inculpatory than the
version provided by Peoples and pled
guilty to a more serious offense. We
also note that Thornton has never
challenged that more serious version
of events or attempted to minimize
the horrific nature the crime. Thus,
even at the commencement of his incarceration, Thornton demonstrated
a predisposition to accept responsibility for his conduct.
More directly, the record shows
Thornton has satisfied the examining psychologists that he developed
sufficient insight into the profound
insecurity which led him to not only
associate with Peoples, but to let
Peoples control his actions. Significantly, in addition to the psychologists' conclusion and his own
thorough explanation of what he now
accepts as the dynamic which led
him to commit murder, the record
is replete with evidence, by way
of the numerous self-improvement
programs and vocational training
Thornton has completed, of Thornton's continuing and consistent
effort to develop the self-confidence,
emotional security and connections
to others which were absent from his
life at the time of the commitment
offense. These accomplishments
demonstrate that, in addition to being
able to articulate an understanding of


his prior psychological condition and
deep seated insecurity, Thornton has
plainly internalized that insight into
his daily life.
The contrast between the record
here-in which by both word and
deed Thornton has shown his understanding of the circumstances which
led to his crime-and the record
presented in Shaputis could not be
more dramatic. Given this record
the Governor's contention Thornt~n
lacks insight is simply unsupported
by the record.
As to being a danger to society because
he did not have a job, the court opined,
Finally, we must reject the Governor's contention Thornton's parole
plans are insufficient because he
does not have a job offer. As Thornton notes, where as here, an inmate
does not have a parole date, as a
practical matter it will be almost impossible to secure employment. Thus
the absence of job offer does not
reflect on his dangerousness. (See In
re Criscione (2009) 173 Cal.App.4th
60, 76.) What is far more probative
is the relatively strict residential
program he has been accepted into
as well as the additional support
programs, including job assistance,
he has contacted and been invited to
Accordingly, the court held
In sum then, the record here will
not support the denial of parole and
we are compelled to reinstate the
Board's grant of parole.
However, the court rejected Thornton's
claim for credits against his parole term
for the excess time incarcerated since the
now reinstated date. Thornton's crime
post-dated 1982, placing him under the
ambit of Penal Code § 3000.1, wh ich
requires "five continuous years on parole"
- a phrase the courts have interpreted to
mean no credits can apply.
In addition to arguing that he is
entitled to parole, Thornton contends
that because he has been incarcerated for a period of time beyond the
date he was entitled to parole, he
should receive credit against his period of parole. Like the courts in In re
Chaudhary (2009) 172 Cal.App.4th
32,37-38, and In re Gomez (2010)
Continued on page 36

CLN/ 35

Volume 7 Number 6


State Court Decisions


(cont'd from page 36)

State Prison's environmental problem with "organ-damaging/maiming/death-causing excessive levels of
ARSENIC in its water, and thus also
in almost all its foods (made with
the tap water)." Lazor requested an
immediate stay to prevent the parole
denial decision from being finalized,
other relief to get him "out of harm's
and death's way," and contempt sanctions against the respondents.
Central to Lazor's angst was his desire
to delay the court-ordered hearing until he
had had a chance to administratively appeal several 115s that he didn't want used
against him at Board. [A self-styled free
thinker, Lazor had often crossed swords
with CDC staff, earning an unenviable
record of 115s.] The superior court's 2008
order had accorded him that latitude, permitting him to advise the Board when he
had completed the administrative process,
and make a demand for a new hearing to
be held within 35 days thereafter. In fact,
he made such a demand in April 2008, ultimately resulting in the June 2009 hearing.
The result of Lazor's "motions" was
an Order to Show Cause by the superior
court as to why the June 2009 hearing
should not be considered the court-ordered
hearing. In October 2010, that court
ruled that Lazor was still entitled to a
new hearing, whenever he announced that
he had completed challenging his 115s.
But that's where the rub came in. In the
interim, Lazor had accumulated some new
115s, which he now also wanted to resolve
before having his court-ordered hearing.
The superior court permitted that, but the
Court of Appeal ruled, in its November
2011 unpublished decision, that "its reasoning and conclusion are fatally flawed ."

"invalid 115s and 128s against him"
that the Board had considered in the
parole suitability hearing overturned
by the order. [fn.] Presumably, when
Lazor made his April 14,2008 request for a hearing, he had completed his challenge. Lazor's purported
"notice" of withdrawal supports this
presumption since it specifies that he
had been issued new Rules Violation
Reports that he wished to "clear up"
before proceeding with the courtordered hearing.
The Court then proceeded to disallow
endless delays based upon the new 115s.
The March 25, 2008 order cannot be
reasonably construed as giving Lazor
the unbridled power to set the courtordered hearing whenever he so
desired beyond the period needed to
exhaust his administrative remedies
and seek relief with regard to the allegedly " invalid 115s and 128s." ...
It would be unreasonable to read the
March 25, 2008 order as permitting
Lazor to unilaterally and indefinitely
delay his court-ordered hearing to
challenge new rules violation reports
and counseling chronos that were
not within the contemplation of that
order. ...

Accordingly, the purported "notice"
had no legal force or effect even if
it was served on or received by the
Board before June 9, 2009 because
the March 25, 2008 order had no application to those new di sciplinary


matters. In view of this conclusion, we need not decide whether
the forfeiture rule applies to Lazor's
failure to object to the June 9, 2009
hearing on the specific ground that
he had withdrawn his April 14,2008
The appellate court summarized its
findings .
Lazor now complains that the June
9, 2009 hearing does not satisfy
the March 25, 2008 order because
the Board did not comply with
his April 14,2008 demand for the
court-ordered hearing within 35
days of that request. This argument
is unsound. The March 25, 2008
order did not bar appellant's pursuit
of an appeal and the record before
us does not reflect any unjustifiable
delay in holding the court-ordered
hearing on June 9, 2009. In any
event, the underlying OSC was not
issued on the ground that the Board
had improperly "delayed" the parole
suitability hearing mandated by the
March 25, 2008 order. It issued
upon the mistaken notion that the
March 25, 2008 order empowered
Lazor to call for the hearing in the
future whenever he wanted it. We
have rejected that construction of
the order. Lazor is not entitled to
another parole suitability hearing to
satisfy the March 25, 2008 order as
modified on appeal.

Continued on page 38

In his superior court traverse, Lazor
had alleged that he had sent a letter to
the Board on April 14,2008, retracting
his demand for a hearing. But there was
no proof of service, and the Board never
received it. Nonetheless, since Lazor
submitted an alleged copy of this documentation to the appellate court, that court
took it as evidence that the real reason for
"withdrawal" was to clear up new 115s,
not just earlier ones.
The evident purpose of the demand
provision in the March 25 , 2008
order was to allow Lazor sufficient
time to challenge the allegedly



Volume 7 Number 6

State Court Decisions




(cont'd from page 38)

added.) How can you "guarantee the
community," the district attorney
asked him, that you will not "go back
into that morally bankrupt condition and not reoffend?" These were
questions about Salcido's character
and background, not about the facts
of the crime. These questions probed
his insight into the root causes of
his criminal actions, and as such,
they were highly relevant. (Shaputis,
supra, 44 Cal.4th at pp. 1259-1260.)
"While it is improper to rely on a
prisoner's refusal to address the
circumstances of the commitment
offense in denying parole, evidence
that demonstrates a prisoner's
insight, or lack thereof, into the
reasons for his commission of the
commitment offense is relevant to
a determination of the prisoner's '
suitability for parole. [Citation.]" (In
re Rozzo (2009) 172 Cal.App.4th 40,
62, fn. 9, italics added.) The Board's
finding that Salcido lacked insight
did not violate section SOIL
Salcido had further challenged the
Board's reason , " we don't know your level
of responsibility." The Court rejected this.
Salcido asserts that "[t]he Panel's
comment that 'we ... don't know ...
your level of responsibility' " was
"plainly an indirect reference to [his]
exercise of his protected right to 'refuse to discuss the facts of the crime'
at the Board hearing, in violation of
the rule requiring that the Board not
hold such a refusal against a prisoner." We cannot agree. The Board's
mere acknowledgment of Salcido's
decision not to discuss the crime
does not, without more, demonstrate
that it held his decision against him.
Here, the Board simply noted that
it was "a little difficult to try and
ask you questions when you're not
discussing the crime. And I'm trying
not to put you in that position but
I don't understand when you agree
with the probation officer's report, so
you have culpability regarding Mr.
Justice's death." Salcido responded,
"Yes," and the commissioner immediately moved on to another line
of questioning, asking whether he
had "just live[d] life normally" for
the next five years. The Board's
comment was not a "barely-veiled ...
criticism" of Salcido's decision not

In re Efrain Reyes (#)

to discuss the crime, and it did not
violate section 5011. (See In re Lazor
(2009) 172 Cal.App.4th 1185, 1202,
fn . 13 ["Consideration of whether
an inmate accepts responsibility for
the commitment offense does not
conflict with section 5011, subdivision (b) ...."].)

(unpublished) 2011 WL 6225421
CA6 No. H036891 (December 13, 2011 )

Efrain Reyes was convicted in J985 of
the second degree murder of his wife, and
sentenced to 15 years-to-life. Reyes told
the Board this his close range firing of the
shotgun into his wife's head was "unintentional." In July 2010, the Board denied
him parole, based on the offense, his
lack of insight into the magnitude of the
offense, and his lack of insight regarding
his depression. Reyes had petitioned the
Santa Clara Co unty Superior Court, which
vacated the Board's denial, and ordered a
new hearing comporting with due process.

The appellate court went on to review
the record, and , contrary to the finding of
the superior court, found that there was
"some evidence" to support the Board's
denial decision. This included Salcido's
pre- and post-murder violent criminal
lifestyle, his hiding from responsibility
for four years until cornered by forensic
evidence in an ongoing police investigation, his failure to accept full responsibility for what had occurred, and his prison
disciplinary history.
Finally, in a lengthy analysis, the Court
rejected Salcido's complaint that Marsy's
Law, in enabling longer parole denial
intervals, was ex post facto. Although Salcido could have received his five year denial under either pre-or post-Marsy's Law
formulas , the Court rejected his claim,
noting that under Marsy's Law, one can
either gain a longer interval or the opportunity to have it foreshortened by applying
for an earlier hearing. The ex post facto
question, however, remains unresolved until the California Supreme Court decides
In re Michael Vicks (SI94129), presently
pending review.
Accordingly, the Court reversed the superior court's order, and ordered that court
to issue a new order denying Salcido's

Reyes felt obliged to marry his girlfriend
at age 17, when she became pregnant.
They went on to have six children,
although the marriage was fraught with
episodes of domestic violence, his drug
and alcohol dependence, and his ongoing
depression . Reyes had a prior conviction
for assault with a deadly weapon, as well
as for welfare fraud .
In prison, Reyes was treated until 2007
for a major depressive disorder with psychotic features. His two 115s in 23 years
were non-violent. In 2009, the Board
psychologist rated Reyes as low risk of
psychopathy and general recidivism, lowmoderate risk of violent recidivism, and
low risk overall. Specifically, the doctor
Regarding insight, Dr. Kalich determined that "Mr. Reyes has good
insight into the issues which led to
his physical abuse of his wife and the
life crime ....
As to Reyes's expressions of remorse

Continued on page 40

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CLN/ 39

Volume 7 Number 6


State Court Decisions


(cont'd from page 40)

mized the shooting by stating that
it was an accident. Currently, after
viewing the autopsy report, he has
accepted that he did shoot his wife at
close range. However, he continues
to maintain that he has no memory
of shooting his wife .... Clearly, Mr.
Reyes has made signi ficant progress
in assuming full responsibility, however it continues to be difficult for
him to accept that he may have, albeit momentarily, intended the result
of his actions." In 2010, Dr. Reynoso
stated in her subsequent risk assessment that "it may be to Mr. Reyes'
benefit to critically examine his true
intentions towards his wife on the
day of the crime." She also reported
that "[w]hile his personal level of
insight into the motives of his wife's
shooting still remains limited, Mr.
Reyes appears to have fa irly good
insight into his psychological processes, personal limitations and ineffective coping skills at the time ....."
From this, the Court concluded,
Thus, Reyes's own statements at the
parole hearing and the psychological
evaluations show that Reyes continues to deny that he intentionally shot
his wife, despite the evidence to the
contrary, which constitutes some
evidence of Reyes's lack of insight
into the nature of the commitment
offense. There is also some evidence
that Reyes lacks insight into the
magnitude of the offense. Although
Reyes maintains that his self-focused
statements at the hearing were the
result of manner in which the Board
questioned him and do not reflect
his actual attitude, we find that the
Board could reasonably determine
that Reyes lacks insight into the
magnitude of the commitment offense because he generally views it

Donations of money or
postage stamps are greatly
appreciated. 100% of donations (not tax exempt)
are used to defray costs of
publishing CLN.
See page 31 for details.

in terms of the impact on himself,
rather than the victim ....
As we have discussed, "where the record also contains evidence demonstrating that the inmate lacks insight
into his or her commitment offense
or previous acts of violence, even
after rehabilitative programming
tailored to addressing the issues that
led to commission of the offense,
the aggravated circumstances of
the crime reliably may continue to
predict current dangerousness even
after many years of incarceration.
[Citations.]" (Lawrence, supra, 44
Cal.4th at p. 1228.) Here, where the
record shows that Reyes's current attitude towards the crime of murdering Laura includes a lack of insight
into the magnitude of the offense
and the impact on the victim, the aggravated circumstances of the crime
constitutes some evidence to support
the Board's decision that Reyes is
unsuitable for parole because he is
currently dangerous.
Finally, the Court held that Dr. Kalich's
2009 psych evaluation, which noted that
Reyes would need to continue treatment in
the community, was at odds with Reyes'
statement that he was cured of his depressive disorder, and thus demonstrated "lack
of insight."
In contrast to Dr. Kalich's 2009
report, Reyes told the Board at his
2010 hearing that he knew "that
terrible depression will never come
back," because he now has spiritual
help and has been addressing the
same issues for the past 25 years.
Reyes therefore continues to display
a lack of insight into his depression
and the potential need for mental
health treatment in the community in
order to decrease his risk of violence.


Thus, we find that some evidence
supports Board's conclusion that
Reyes's lack of insight into his
depression, as well as his lack of insight into the nature and magnitude
of his commitment offense, show
that he currently poses an unreasonable risk of danger if released from
prison. Reyes's continued failure to
accept responsibility for the intentional shooting of his wife and to
comprehend the impact on the victim, as well as his lack of insight into
his potential need for mental health
treatment after his release, show that
he is currently unsuitable for parole.
Accordingly, the Court reversed the
superior court's order, and ordered that
court to issue a new order denying Reyes's

In re Louis Oliverez (#)
(unpublished) 2011 WL 5138647
CA6 No. H036836 (October 28, 2011)

In 1993, Louis Oliverez and two
crime partners fatally shot their victim,
with five shots - the last being to the back
of the head. Oliverez was convicted of
first degree murder, conspiracy to commit
murder, and grand theft. At their respective trials, all crime partners blamed the
At his initial parole hearing in 2010,
Oliverez gave yet another version of the
crime, which the Board compared with
records of the convictions of his crime
partners, as well as probation officer reports; the Board found Oliverez' credibility lacking. The Board found the crime,
"this one in particularly [sic], as it is a first
degree murder, was a little deeper in those
characterizations." It also found Oliverez
to be "manipulative," based on a 115 for
falsifying a ducat, and related this back to

Continued on page 42


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CLN/ 41

Volume 7 Number 6


State Court Decisions


(cont'd from page 42)

His manipulative nature is evidenced
by his falsifying the ducat to get out
of C-status, lying about his gang
involvement to manipulate his placement in prison, making negative
comments at the hearing about the
victim, and giving different versions
of the crime at different times, always choosing the version that would
serve him best at the time.
The Court reasoned,
As a result of Oliverez's lack of directness, manipulation of his circumstances, and his admitted dishonesty,
the Board concluded that it could
not believe him; he was not credible. Neither the superior court, nor
this court, can disturb that finding.
Credibility is the sole province of the
finder of fact, which in this case is
the Board. (In re Tripp (2007) ISO
Cal.App.4th 306, 318.) Although
neither lack of credibility nor manipulative behavior is specifically listed
in the regulations as an unsuitability
factor, both are quite properly considered in the parole suitability calculus. The circumstances identified
in section 2402, subdivision (c) are
merely illustrative of factors tending
to show unsuitability. Section 2402,
subdivision (b), expressly provides,
"All relevant, reliable information available to the panel shall be
considered in determining suitability
for parole." Evidence that the inmate
manipulates circumstances to protect
his own interests and is generally not
believable is surely some evidence
that the inmate in not suitable for
parole since he cannot be trusted to
lead a blame-free life if released.
Summarizing, the Court held that
Oliverez's inability to convince the
Board that he accepts responsibility
for the murder and that he understands what in his own makeup
caused him to become involved is
probative of his current dangerousness; the concern is that he could
become involved in similar criminal
behavior if released. Thus, there is
some evidence to support the Board's
conclusion that Oliverez is unsuitable
for parole at this time.
Accordingly, the Court reversed the superior court's order, and ordered that court

to issue a new order denying Oliverez'

In re Steven A. Prellwitz (#)
(unpublished) 2011 WL 6141308
CA6 No. H036496 (December 9, 2011)

This is Steven Prellwitz's second reversal of a grant of habeas rei ief from the
Santa Clara County Superior Court in the
past six months. In CLN #40, we reported
on the Sixth District Court of Appeal's
reversal of relief granted by the superior
court concerning Prellwitz' September
2009 Board denial. Today, we report on
the same sequence of events, but now
pertaining to his December 2009 Board
denial. Little changed.
Steven A. Prellwitz was incarcerated in
1985 for the second degree murders of his
mother and his sister. In December 2009,
the Board concluded he was unsuitable.
Prellwitz challenged the Board's decision
in the superior court, which granted his
petition for a writ of habeas corpus and ordered the Board to conduct a new hearing.
On appeal, the state contends the superior
court erred when it granted Prellwitz's
petition, because "some evidence" supports the Board's decision. The Court of
Appeal agreed, and reversed the superior
court's order.



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On May 11, 1984, then 26-year-old
Prellwitz went to his parents' house and
attacked his father with a rubber mallet,
inflicting head and facial wounds and fracturing his father's arm. When Prellwitz's
mother grabbed her son in a headlock, his
father broke free and called police from a
nearby 7-Eleven.
Arriving at the house to check on the
safety of Prellwitz's mother and sister,
police found the front door open and saw
Prellwitz running across the living room.
He threw an eight-to-IO-inch kitchen
knife in their direction. On the floor of a
bedroom that showed "signs of a violent
struggle," police found the blood-smeared
bodies of Prellwitz's mother and sister,
still in their nightclothes. His mother
had "suffered eight mortal knife wounds
puncturing her heart, lungs, windpipe, and
stomach." His sister had suffered a mortal
knife wound that punctured her windpipe
and esophagus and four less serious knife
wounds to the neck. Both bodies were
also bruised and lacerated.
In 1985, ajury convicted him of two
counts of second degree murder and one
count of assault with a deadly weapon.
The court imposed concurrent l5-yearsto-life terms for the murders, consecutive
to a three-year term for the assault.
Prellwitz did well in prison. He earned
his associate's, bachelor's, and M.B.A.
degrees in prison and acquired vocational
certification in five trades. His file contains "a large number" of chronos praising
his work habits and motivation.
He has participated in numerous Christian ministry and Bible study programs
during his incarceration, including
Conflict Resolution in 1996 and Christian
Conflict in 2001. He completed two anger
management programs, a 16-hour course
in 2002 and a 26-week program in 2006.
In 2007, he completed a five-session stress
management program and a relationship
awareness workshop. He prepared two
book reports on family violence in 2009.
Prellwitz's psychological reports, while
rating him "low risk," had qualifiers
regarding his intellectualizing his feelings
and raised questions regarding his true
understanding of his anger exhibited in the
murders. In 2008,


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Dr. Singh noted, as had other evaluators, that while Prellwitz had not yet
accepted full responsibility for his
actions, he had expressed remorse.
Continued on page 44

CLN/ 43

Volume 7 Number 6


State Court Decisions


(cont'd from page 44)

of these murders, doesn't match the
way the bodies were defiled. And I
can accept that you don't remember,
but there wasn't anybody else there
that could have caused that to happen."
FN5. Prellwitz later tried to explain
why he smiled. ''I'm sorry I smiled,
but ... in my earliest hearings all this
was never brought up, and it was
brought up in, I think, 2005 by [the
district attorney] and it was objected
to, and by [a] commissioner. And she
had actually warned him that this-if
I'm not charged with this why is this
being brought up. So, that was my
only-that was what 1-."
Prellwitz told the Board he was "in fear"
when his mother picked up the knife in the
kitchen, but he also said "it wasn't like she
threatened [him]" then. He told the Board
he stabbed her in the bedroom because he
thought she had stabbed him, but he also
said that "just a fury took over." Prellwitz's mother's injuries (eight mortal stab
wounds to the neck, chest, and abdomen
and "multiple blunt injuries") reflected that
she had been stabbed in a fury rather than
in self-defense. His sister's wounds were
also in dispute.
Although his sister suffered five stab
wounds to her neck, he maintained
that he "pushed it [a shard from the
broken lamp] into her throat once,
and then I shoved her up against the
dresser... ." (Italics added.) He rationalized that the one act of pushing
her up against the dresser resulted in
two cuts to her trachea: "I pushed her
once and then shoved her up further
against there, so I may-I think what
it did was it just released the pressure
and then hit her again because I-if I
remember the reports, there was two
cuts, two jagged cuts on her trachea."
All of this evidence was more than
sufficient to support the Board's finding that Prellwitz had not yet accepted full responsibility for his actions.
The Board was also concerned about
Prellwitz' lack of sufficient insight and of
genuine remorse.
His lack of genuine remorse was also
evident at the hearing. Asked if he
"truly" had remorse, he responded
only generally: "Yes. I expressed my

remorse at my sentencing hearing ...
and many times over the years." ")
feel shame and remorse for what I
did." Asked how he felt "now" about
his mother and his sister, he replied,
"[a]shamed and sad." He did not
describe his victims' losses by, for
example, expressing sorrow that his
mother would not see her grandchildren grow up, or that his sister had
her life cut short. In fact, the Board
noted, he said nothing at all about
his sister's loss. The Board could
reasonably have determined from his
responses that he was simply "verbalizing" remorse, "just ... saying it or
intellectualizing it," which "means
very little."
There was also evidence that Prellwitz had not yet gained sufficient insight into his emotions. Eight psychological reports in the record describe
his increasing but stiLL limited insight.
In the most recent, Dr. Montalvo
recommended "intensive, individual
therapy" to help Prellwitz "explore
and become more comfortable with
his emotions and learn to talk about
his feelings ." He spoke of the work
Prellwitz still "needs to do in order
to become more open and honest regarding his feelings," specifically, his
need "to reduce his tendency to focus
upon and argue about details and
to intellectualize emotional issues."
These, Dr. Montalvo, wrote, were
"part of his comfort zone, whereas
dealing with strong emotions has
not been and needs to be." (Italics
Prellwitz nonetheless argued that the
Board failed to show any nexus between
the commitment offense and current dangerousness. The Court disagreed.
An inmate's lack of insight into his
commitment offense can provide a
logical link between the nature of
that commitment offense and current
dangerousness. (Shaputis, supra, 44
Cal.4th at pp. 1260- 1261,82 Cal.
Rptr.3d 213, 190 P.3d 573 & fn . 20)
Here, the Board clearly established
that nexus when it told Prellwitz
that "it's the why that is so critically
important. You know, if a person
knows why they did what they did,
then they're not likely to repeat it....
You talked about being frustrated
and angry, and that's what led to this
commitment offense. But in the frustration and anger there is no why....


You had ample opportunities to stop
these attacks, and you don't know
why you did them .... You brutalized
and mutilated ... your mother and
your sister, and you don't know why
other than the fact that you were
frustrated and angry. That's not the
bridge to suitability."
Accordingly, the appellate court found
that because
there was more than "a modicum of
evidence" to support the Board's implied conclusion that until Prellwitz
develops a greater ability to recognize, understand, and deal with his
emotions, particularly his anger, he
remains a current danger to society.
(Rosenkrantz, supra, 29 Cal.4th at
pp. 676-677, 128 Cal.Rptr.2d 104, 59
P.3d 174
The Court reversed the superior court's
order, with directions to issue a new order
denying the petition

In re Byron Mills (#)
(unpublished), 2011 WL 6330617
CA6 No. H036076 (December 19,2011)

Byron Mills was convicted of the 1980
second degree murder of his first wife, and
sentenced to 15 years to life. Mills became enraged when his wife, from whom
he had been separated, had been sleeping
with another man, and strangled her.
Mills was denied parole for three years
at his September 2009 hearing, which was
held as a result of a June 2009 superior
court order directing a new hearing. [Additionally, Mills had another suitability
hearing in April 2010, which was the
result of an earlier superior court order
for rehearing of an October 2008 hearing, wherein he was again denied parole.]
Mills petitioned the Santa Clara County
Superior Court to order a new hearing,
which the court granted. The state appealed, and the Sixth District reversed the
superior court order that resulted in the
2009 hearing. Although the 2010 hearing was not before the appellate court, the
court found it unnecessary to respond to
the state's complaint that the 2010 hearing
mooted the appeal of the 2009 heari ng,
because the court found there was "some
evidence" to support the 2009 denial.
The Board was specific in its statement
of reasons for denial.

Continued on page 48

CLN/ 45

Vo lume 7 Numbe r 6



(Cont'd from page 46)

Abuse of Visiting by Staff. Please see article on page 69 (report to LSA).
Psychological evaluation. Did the psych get the facts straight? Was sufficient time
devoted to the interview? Was the psych rude, abrupt, in a hurry, or interruptive? Did
the psych express any kind of bias or rudeness, or make inappropriate remarks? Were
you caged? Details, please.
Were you solicited by a lawyer? Were you approached in a waiting or visiting room
by a lawyer seeking to represent you? Did you already have an attorney at that time? Or
did you receive a letter from a lawyer you don't know or didn't write to, regarding representing you at your hearing or in litigation? We want to know about lawyers who boast
about their skills, their "grant rate," or who tend to undermine your relationship with
another attorney or discredit another lawyer. CLN will respect anonymity, if requested
Mail at your institution. Delays? (How long after the postmark date do you normally receive first-class mail?) Are there problems with contents, weight, opening legal/
confidential mail without you being present?
Guards seIling cell phones or tobacco? CLN will respect your request to remain
anonymous. Can you provide the names of guards and staff members who you know
smuggle in cell phones, tobacco or other goodies to dell to inmates? Specifics? If you
wish to provide this information by confidential mail, CLN can provide the name of a
lawyer who would like to receive mail on the subject.
"Great Goods." This is the name of a company in New Hampshire that advertises in
publications to buy stamps from inmates. CLN has received several complaints about the
company, and BBB (the Better Business Bureau) rates them an "F" (the lowest rating) for
their failure to respond to and resolve numerous complaints received, charges of fraud,
etc., similar to the reports we receive. We have been unable to communicate with the
company, and they have no business license. Input from inmates about their experience
with this company may be helpful.

P.O. Box 68

Walnut, CA 91788


Volume 7 Number 6

State Court Decisions




(cont'd from page 48)

Was based on a misreading of the
Board's decision. The Board did not
find Mills unsuitable based solely
on the commitment offense. Instead,
the Board's decision was based on
evidence that Mills remained a current risk due to his current failure
to accept full responsibility for hi s
abuse of Rosemarie, his current
minimization of hi s conduct, hi s
continued inconsi stent statements,
and his present demeanor. These
were all appropriate considerations
under Lawrence and Shaputis.
The actual reasons for the Board's
decision were al so supported by
some evidence. Mills did not dispute
the Board's assertion s regarding his
demeanor at the hearing. The fact
that Mill s became angry, upset, and
agitated at the hearing reflected that
he has not yet learned to adequately
manage hi s anger, which was precisely the circumstance that led to
the commitment offense. Mills has
long refused to acknowledge that he
abused Rosemarie prior to the commitment offense, and he has minimized his abuse by claiming that he
merely "restrained" her when she
attacked him. As the Board pointed
out, Rosemarie was a very small
person, and Mills was a large man.
Mill s's refusal to acknowledge the
true nature of his abusive domination
of Rosemarie suggests that he has


yet to learn enough about domestic
violence to ensure that he will not
engage in it in the future. Mill s has
in fact made numerous incon sistent
statements about both the commitment offense and his conduct toward
Rosemarie and others. The fact that
hi s statements cannot be trusted is,
as the Board stated, evidence that
he cannot be trusted to adhere to his
stated desire to remain nonviolent
and may resort to violence. Like
Shaputis, "despite years of therapy
and rehabilitative 'programming,' "
he has fail ed to come to terms with
hi s "anti social behavior," and the
Board could therefore properly conclude that he is not yet suitable for
parole. (Sh aputis, supra, 44 Cal.4th
1259- 1260.)


Johnny Lira (#)
L __CaLAppAth ___ ), 2011 WL 6034460
CA6 No. H036162 (December 6, 2011 )

The Sixth District Court of Appeal held
that following Governor Schwarzenegger's 2008 illegal reversal of Johnny Lira's
grant of parole, Lira was entitled to credit
against his 3 year parole tail that began
upon Lira's release on April 8, 2010.
In November 2008, the Board
conducted a new hearing, found Lira
suitable for parole, and set his term
of imprisonment at 216 month s (18
years). In April 2009, then Governor
Schwarzenegger vetoed the Board's
decision, finding that Lira would
pose a danger if released. In November 2009, the Board held the next
regularly scheduled parole hearing,
again found Lira suitable for parole,
and set his term of imprisonment at
228 months (19 years). In December
2009, before the Board's decision
became final and effective, Lira
filed a writ petition challenging the
Governor's 2009 veto. He alleged
that it was not supported by some
evidence and thus violated his right
to procedural due process. In April
2010, while Lira's petition was still
Continued on page 50

Accordingly, the Court ruled that
Since the Board's 2009 decision was
supported by some evidence, the
superior court lacked any basis for
intervention and should have denied
Mills's petition. The superior court's
order is reversed, and the superior
court is directed to enter a new order
denying Mills's petition.


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CLN/ 49

Volume 7 Number 6

State Court Decisions




(cont'd from page 50)

an unreasonable risk of danger to
others if released. Accordingly, we
conclude that the Governor's veto of
the Board's decision to grant parole
was erroneous.
As to credits, the Court ruled
[qredit should be calculated starting from the date that the Board's
2008 suitability finding would have
become final and effective but for
the Governor's erroneous veto. That
date would have been 150 days after
the Board's finding on November
13, 2008: April 12,2009. Thus since
Lira was released on April 8, 2010,
he is entitled to credit for the period
from April 12,2009, to April 7,
We modify the order granting Lira's
supplemental petition for a writ of
habeas corpus. It shall now direct the
Board to afford Lira credit against
his parole term for the period of
his incarceration between April 12,
2009, and April 7, 2010. As modified, the order is affirmed.
Late update: On December 21,2011,
both the state and Lira filed petitions for
rehearing in the Court of Appeal. On
January 4, 2012, rehearing was granted.
Thus, the case will not become final until
further briefing and argument has been
considered by the Court.


The Board had minced no words when
it relied exclusively on this reason to deny
parole, as noted by Justice Pollack.
In explaining their decision to find
petitioner unsuitable for parole, the
members of the Board made reference to petitioner'S previous youthful offenses and to the facts of his
commitment offense, but they left no
doubt as to their reason for denying
him parole. According to the presiding commissioner: "But, of course, at
this point, we're still concerned that
you haven't identified ever the crime
partner and as we noted, Commissioner Kane last year ... advised that

Continued on page 52






CAL I F(J~hll /l.


WOIUDf~ \F T"t\f'~




CAI(3) No. A132191 (September 14, 2011)


19.AFFI( \aliO THI'.> STA1E


In re Lonnie Morris (#)

Lonnie Morris was convicted of the
murder of a San Francisco police officer
during the course of a robbery in 1977;
he became eligible for parole in 1984. He
was again recently denied parole, based
on his refusal to identify his accomplice.
Morris' habeas petition to the First Appellate District Court of Appeal, challenging
this denial, was denied without an order to
show cause. But in an unusual event, Justice Pollack, who dissented from the denial, offered his reasons why he believed
an order to show cause should issue.

. . . when you go out of this gate, you
need to go out clean. You don't need
that hanging around your neck . You
don't need that bringing you down
and .. . to us, it shows that you really
haven't internalized the - You don't
understand the nature and the magnitude of this crime or you would
take care of business. And we don't
think that you do have the insight. .
.. You haven't internalized some of
this stuff or you would say, 'I want
to come clean. I want to clear the
books. I want to take care of business and name this person.' No matter what the consequences are. And
that's our concern, because when you
don't, you're minimizing and you're
skimming the surface and that's
what we believe .. .. And you're
shining us on and you're saying hey,
1 don't care if he's walking out there.
I don't care if he's a - he could be he should be convicted of first degree
murder. He's there doing the robbery.
You know, and it just upsets me that
we don't know that and [you] don't
say anything." The deputy commissioner then added the basis for her
decision, to the same effect. After
reciting at length the many "admirable" activities in which petitioner
has been involved while imprisoned
and his "positive adjustments," the
fact that he has not "received a serious 115 since 1985," has "offers for
employment and for residence," and
his noninvolvement in "prison-type
violence," the commissioner explained,

[I]t is not among the factors that
the Board of Parole Hearings (the
Board) is authorized to consider in
determining his suitability for parole.
(Cal. Code Regs., tit. 15, § 2281.)
The Board's attempt to justify its
in sistence that petitioner identify the
accomplice before it will find that he
no longer poses an unreasonable risk
of danger to society if released from
pri son, on the basis that his continuing refusal reflects a lack of remorse
and insight, is arbitrary and completely at odds with the record before
the Board. I shall not belabor this
dissent with an extended description
of petitioner's crime, his salutary record of personal improvement while
in prison, or of the many psychological evaluations that have found him
to pose a low ri sk of future violence
if granted parole.

LATE . . •?











M.b~DFO'"C :fQ..

CLN/ 51

Volume 7 Number 6


State Court Decisions


(cont'd from page 52)

is likely to commit additional offenses
if released on parole.
Morris' petition for review of this denial
was denied by the CA Supreme Court on
November 2,2011.


In re Howard Scott (#)
(unpublished) 2011 WL 5345399
CA2(1) No. 8231398 (November 8, 2011)

Howard Scott was convicted of second
degree murder in the 1987 shooting death
of his cocaine dealer partner. He was denied parole in 2010, and petitioned the Los
Angeles County Superior Court, which
denied him based on its finding "some
evidence" related to his most recent 115.
Scott then took a new petition to the Court
of Appeal, which considered the record de
The Board based its decision to
deny parole on three factors: Scott
committed "serious misconduct
while incarcerated" (referring to the
incident in the dental clinic); the
commitment offense "was committed in an especially cruel manner ...
demonstrating exceptionally callous
disregard for human suffering;" and
Scott failed numerous grants of probation as a juvenile and an adult.
Since the principal issue here is whether
his denial of parole in 2010 based, in
part, on a CDC-lIS received in 2007, was
adequately supported by "some evidence,"
we review that incident.
In February 2007, three years before
the subject parole hearing, Scott
received a "115" citation for "[f]
ailure to comply with orders necessitating the use of force." The incident
arose when Scott arrived a half hour
late for a dental appointment and did
not have his identification. Denise
Garza, a dental assistant, told Scott
he could not be seen because he was
late but he could come back the next
day if he filled out a form which she
handed him on a clipboard together
with a pen. In her incident report,
Garza stated: "He took an aggressive
stance [and placed] his left hand

with the clipboard down and said
you will not talk to me like that with
an abrasive loud tone and clenched
his hand around the pen and lowered
it back like he was getting ready
to hit me with his right hand while
glaring at me with his eyes .... I felt
scared for my safety so I stepped
back." A witness, Maria Krause,
stated in her report that she saw
Scott "take an aggressive stance and
put his hands down as he clenched
his right hand with a pen in it."
Krause ordered Scott to leave the
clinic but he refused. "[A]s he started to lift his right hand up," Krause
activated her alarm summoning help
from the guards. Krause ordered
Scott to "get down" but he failed to
comply. When the guards arrived
they ordered Scott several times to
get down on the floor. When he did
not comply two of the guards pushed
him down. According to one of
the guards, Scott actively resisted
handcuffing by holding his right arm
under his chest. According to Scott,
the guard was pinning his right arm
under his chest and he could not
move it. On the resistance issue, the
hearing officer concluded that Scott
might have had his arm pinned underneath him and reduced the charge
of "[r]esisting staff necessitating the
use of force" to "[f]ailure to comply
with orders necessitating the use of
Although Scott argued that this incident
did not supply the requisite "some evidence" to deny parole, the appellate court
Here, the recent misconduct necessitating the use of force by prison
guards is "some evidence" that Scott
poses an unreasonable risk of danger
to society if released at this time. (In
re Roderick (2007) 154 Cal.App.4th
242,273 [a prisoner's behavior in
prison is relevant to his suitability for
Finally, the Court concluded it did not
need to reach Scott's "lack of rational
nexus" claim, since it already found "some
evidence" in the prison misconduct reason
cited by the Board.
[W]e find no merit in Scott's contentions that the Board's decision must
be reversed because it lacked a pro
forma finding on the record that a
"rational nexus" exists between


Scott's conduct and his current
dangerousness. (In re Criscione
(2009) 180 Cal.App.4th 1446, 1461.)
Due process calls for reasoning (In
re Lawrence, supra, 44 Cal.4th at p.
1210), and here the Board's decision
contains that reasoning. (See discussion at pp. 4-5, ante.) Nothing more
was required .
Accordingly, Scott's petition was denied.


In re Oscar Maela (#)
(unpublished) 2011 WL 6357777
CA4(I) No. 0059853 (December 20,2011)

In 1988, a jury convicted 22 year-old
Oscar Maela of the second degree murder
with use of a gun, which had occurred
during a drug purchase. He was sentenced
to 17-life. Maela was most recently denied
parole in July 2009, for three years. After
being denied habeas relief in the San
Diego Superior Court, he petitioned the
Court of Appeal, asking for a new parole
hearing and for relief from Marsy's Law
(ex posljaclo increase in parole denial
Maela's record didn't help him. He had
numerous juvenile crimes, and spent two
years in CYA. He was convicted of attempted escape from county jail. Between
1989 and 1996, Maela accumulated 13
115s, including for fighting, stabbing an
inmate, and participating in a race riot.
To his credit, he has been discipline-free
since, and debriefed from the Mexican
Mafia gang in 2000. He went on to earn
his G.E.D. and learn several vocations,
receiving positive chronos along the way.
He also immersed himself in NA. All
of this resulted in his latest psychological evaluator finding him a "low risk" if
Maela's prison record includes gaining a
G.E.D, being 7 units short of gaining his
Associate of Arts degree, II years of positive work reports in PIA, and certificates
in sewing machines and as an electronics
technician. His self-help and programming includes Alternatives to Violence,
Criminal Gang Members Anonymous,
Success Ahead, Stress Management, and
Fathers Behind Bars. His three CDC115s, two for possession of marijuana and
one for cell fighting, were in the 1980s.

Continued on page 54

Volume 7 Number 6


State Court Decisions


(cont'd from page 54)

released . Instead, Maela printed
material from the internet about different groups that could aid him if he
was paroled. While the undeveloped
relapse prevention plan by itself does
not warrant caution, the undeveloped
plan coupled with Maela's sporadic
substance abuse training and the
fact Maela was under the influence
of PCP while he committed the
life offense raises a concern about
MaeJa's danger to society upon being
The Court of Appeal admitted then that
the record might well be weighed in favor
of release. However, the court 's role in reviewing parole denial petitions is solely to
look for "some evidence," not to reweigh
the evidence it finds.
Were it our responsibility to evaluate the various factors appropriate
to a determination whether Maela
constitutes a current threat to public
safety, we might very well conclude
that evidence in the record tending
to establish his suitability for parole
far outweighs any evidence demonstrating unsuitability for parole. Yet,
this is not our role. (See Shapulis.
supra, 44 Cal.4th at pp. 1260-1261.)
Instead, we have reviewed the
record, in a light most favorable to
the Board's decision ( In re Morrall
(2002) 102 Cal.AppAth 280, 301)
for "some evidence" to support the
Board's denial of parole. Based upon
the totality of the circumstances,
we are satisfied the Board's decision meets this extremely deferential
standard, albeit the evidence appears
modest. Maela was under the influence of PCP at the time he committed his life offense. He also admits to
having used alcohol and drugs since
the age of 12. His substance abuse
training has been sporadic over the
last few years, and he only began his
involvement with Amity in 2009.
He had previously assaulted his wife
and was hesitant to move in with her
if he was released, choosing instead
to live in the Amity residence. A
couple of times during the suitabil ity
hearing, Maela made statements that
could be construed as evidencing his
lack of understanding of the magnitude of his life crime. In addition, he
failed to contact any group to set up
a relapse prevention program.

In summary, this evidence can be
predictive of Maela's current dangerousness despite the many positive
factors that demonstrate his suitability for parole. (See Lawrence. supra,


44 Cal.4th at p. 1226["[0]ur defer
ential standard of review requires
us to credit the [Board's] findings if
they are supported by a modicum of
evidence"]. )

Continued on page 56

CDCR's statistics published last month confirm that far less than one
percent of formerly convicted murderers who have been released to parole
commit new crimes. Of 860 inmates who were paroled in the 15-year
period between January 1995 and March 2011, who had served terms for
murder, 5 committed new offenses, as shown. The resulting recidivism
rate is less than six-tenths of one percent (0.58%), which is less than
one-one-hundredth of California's overall Recidivism rate for parolees.

Post Release Criminal Activity of Convicted Murderers
Who Have Paroled Since 1995
Data as of March 31, 2011
Recidivism behavior of murderers who returned to COCR either
as a new admission or with a new term over a 15-year time period.
Although this 15-year murderer recidivism report is not directly
related, or necessarily comparable, to the data presented in this
2011 Adult Institutions Outcome Evaluation Report, it is included
for informational purposes.

New Crimes, If Ally

Number of

Burglary. 2nd Degree


Served 6 M:mths *
(9/10 - Present)

Petty Theft with a Prior


Served 11 fvbnths
(3/09 - 1/10)


Sentence For New Crime

Served 10 fvbnths
(7/05 - 5/06)
Served 4 fvbnths
(5/09 - 9/09)
Served 11 fvbnths'
(4/10- Present)

Possession of a Weapon



Sub Total for New



No New Crimes






'Offenders still serving time for offense.


Volume 7 Number 6


State Court Decisions


(cont'd from page 56)

The purported lack of an adequate
relapse plan does not support the
Board's decision.
Goldner's 2008 psych evaluation resulted in "low" risk ratings in all categories.
In 2010, the evaluation changed to "low
to moderate," based on the psychologist's
speculation that Goldner could revert to
alcoholism. As the Court acknowledged,
Goldner makes a compelling argument on the merits as to whether his
ambiguous psychological assessments are favorable or unfavorable.
It is odd that he is now considered
to be a higher risk than in the past
based on the same basic pool of
historical information. But the Board
was entitled to credit the most recent
psychological assessment, wh ich
deems Goldner a low to medium risk
rather than a low risk. And the 2010
assessment is not without a basis for
its analysis, as there is uncertainty
as to whether Goldner can actually
refrain from alcohol abuse outside
prison and thereby avoid the triggers
for his criminal behavior.
In its conclusion, the Court indicated
the weakness of the rationale supporting
Goldner's parole denial.
This is a close case. Goldner cannot
erase his past: He is an alcoholic
who committed horrible crimes
and generally led a disreputable life
prior to his imprisonment. But the
Board is not entitled to deny parole
indefinitely and systematically to all
alcoholics and drug addicts based on
a generalized, unsupported fear they
could resume their prior lifestyle
upon release, despite years of treatment and abstinence. Moreover, two
of the Board's rationales-supposed
lack of insight and lack of a relapse
prevention program-are dead ends.
The Board's ultimate decision is supported by the cruelty of the alcoholfueled murder, Goldner's social
history as a young adult addicted
to alcohol, the 2010 psychological
assessment linking Goldner's current
dangerousness (low to moderate, not
simply low) to his ability to prevent
himself from drinking alcohol, and
the Board's judgment that Goldner
had not yet adequately prepared him-


self to cope with the temptations of
life outside prison. Goldner's efforts
to reform his ways are commendable. However, it is not for this court
to usurp the discretionary role of
the Board. The Board duly considered all of the evidence put before
it and all of the factors prescribed
by its guiding regulations. Taken as
a whole, the Board's stated rationale for denying parole sufficiently
"establish[ed] a rational nexus"
between its concerns and "the necessary basis for the ultimate decision-the determination of current
dangerousness." (Lawrence, supra,
44 Cal.4th at p. 1210 .) There is
some evidence that, if Goldner were
released now, he would still pose a
risk to the public despite the progress
he has made wl)ile in prison.
Nonetheless, the Court ordered that the
trial court's order granting Goldner's petition for writ of habeas corpus be reversed.


In re Earl Weston (#)
(unpublished) 2011 WL 5843008
CA4(2) No. E052826 (November 22, 2011)

Earl Weston, an admitted drug addict,
pled guilty to a 1988 murder with special
circumstances, in exchange for a sentence
of 25 years to life. At his initial parole
hearing, in 2005, the Board denied him
for four years. In 2009, his subsequent
hearing resulted in a three year denial.
The denial was predicated on the commitment offense, lack of insight or remorse,
and Weston's disciplinary history. Weston
challenged that decision in the Inyo
County superior court, which granted
his petition for a writ of habeas corpus in
December 2010 and ordered the Board to
conduct a new hearing.
In its memorandum of decision, the
court criticized the Board's reliance
on certain factors. First, the lower
court noted that virtually all first
degree murders (other than felony
murders) are calculated and that
murders by definition involve callousness. It thus concluded that in the
appropriate context of all first degree
murders, defendant's offense was not
exceptionally cruel or callous.
Next, the superior court took issue


with the Board's determination that
defendant's reasons for the killing were trivial, finding that "[i)
n a drug-addled state," defendant
and another individual irrationally
agreed to kill the victim. The court
concluded that while the purpose
was unjustified, "nonetheless, as a
motive, however improper, it is at
least understandable and not trivial."
The superior court also determined
that the Board inappropriately
relied on defendant's concededly
improper behavior in custody, the
most recent incident occurring eight
years prior to the hearing. Further,
the court concluded the Board
improperly attributed to defendant
a lack of remorse and insight as to
the seriousness of his crime because
the defendant exercised his right
not to discuss the circumstances of
the crime at the hearing. Finally,
the superior court stated the Board
appeared to consider the fact that
the BPH had chosen not to provide a
more updated psychological evaluation, and improperly weighed it
adversely to the grant of parole. The
court thus concluded the Board's
finding of unsuitability for parole
had either no or legally insufficient
evidentiary support.
On appeal, the state contended the
superior court erred in granting the petition, because "some evidence" supported
the Board's decision. The appellate court
agreed, and reversed the superior court's
The appellate court found the Board's
determination that the crime, even for a
first degree murder, was exceptionally grave.
In this case, the commitment offense
was especially heinous, atrocious,
and committed in a cruel manner,
within the meaning of title 15, California Code of Regulations, section
2402, subdivision (c)(l). The offense
was carried out in a dispassionate
and calculated manner: at midday on
the date of the murder, the defendant
and his associate dug a grave in a secluded spot prior to luring the victim
to the location. The defendant and
his associate partied with the victim
until dark, when they decided it was

Continued on page 58
CLN/5 7

Volume 7 Number 6


State Court Decisions


(cont'd from page 5S)

In response to questions from the
Board, Hunter stated that Tanya died
from "stab wounds" on her left side,
possibly from a kidney injury. When
the Deputy Commissioner sought to
confirm that Hunter had stabbed her
on the left side, he replied: "Yeah,
the left side. That was definitely the
puncture wound. And I hit her in her
chest, made a big scratch." When
asked how many times he stabbed
her, he replied: "I would say, I know
in her chest. I'm not for sure if I hit
her twice in her chest, but I know
I hit her definitely once on her side
that I remember." When asked if he
verified that she was dead, he said,
"I was just swinging. I don't think I
thought that through at the time, to
make sure she was dead. But it was
all a part of the, in the midst of the
struggle." When later asked whether
he might have inflicted as many as
seven stab wounds, Hunter replied:
"It could be. I just know of two or
three major punctures that I did. I
don't know if the rest was scratches
or actual stab wounds. I mean, you
know, puncture or cuts. I'm not for
sure. Is stab wounds considered
cuts too? Is it all the same? Then
it may be so." Hunter was uncertain whether Tanya's body had any
marks from being beaten, but he
agreed there was a "great possibility" it did. When asked whether he
had strangled her, he replied that he
wasn't sure if that had been a cause
of death, but admitted he "definitely
choked her."
The Board offered its usual denial reasons.
In explaining its decision the Board
first noted the heinous and callous
commitment offense: the murder of
a pregnant woman, the mother of a
five-year old, for a trivia l reason and
partying immediately thereafter.
The Board noted Hunter's significant
history of drug abuse, beginning at
the age of 12 or 13 and continuing
through the time he was incarcerated. The Board also based its denial
on Hunter's "past and present mental
state." It believed that in discussing his commitment offense Hunter
minimized his conduct and was not
credible. The Board noted that in
discussing the crime, Hunter had not

ations regarding the timeliness of a
petition for habeas corpus challenging a criminal conviction apply to a
petition challenging a parole denial.
As pointed out in In re Burdan
(200S) 169 Cal.AppAth IS, 31, in
the parole denial context the record
is simply a paper record, typically
well preserved, and the finality of the
petitioner's conviction is not at issue.
Therefore, delay normally can prejudice only the petitioner. Because this
is a parole denial case, it is not subject to the deadlines associated with
habeas petitions challenging criminal convictions. There is no basis to
deny this petition as untimely.

spontaneously discussed its effect
on the fetus or on the five-year-old
son of the victim, and thus, in the
Board's view, failed to demonstrate
appropriate remorse. The Board
al so noted Hunter's recent discipline for failing to report to work,
terming it "significant misconduct."
Finally, noting that Hunter murdered
a pregnant woman who was also the
mother of a five-year-old , the Board
expressed concerns about his parole
plans to reside with his brother, who
has children in hi s home.
As its first ploy, the state floated a novel
argument that Hunter's petition, filed II
months after the hearing, was somehow
" untimely," which the Court properly
Capital habeas petitions are untimely
if not filed within ISO days of the
final date for filing a petitioner's
reply brief in the direct appeal. (In re
Soderstein (2007) 146 Cal.AppAth
1163, 1221.) The Attorney General
asserts that this ISO-day period
serves as a benchmark for what
should be deemed "substantial delay." Petitioner's superior court writ
petition was not filed for more than
11 months after the Board's decision
became final. The Attorney General
contends the delay was substantial,
unjustified, and does not fit into any
exception to the habeas timeliness


The Court then went on to search the
record for evidence of a rational nexus
between Hunter's current demeanor and
his offenses.
The Board's denial rests primarily
upon its conclusion that Hunter lacks
remorse and insight, based on its belief that Hunter's explanation of his
crime lacks credibility. The Board
did not believe that after having
consensual sex with the victim and
leaving to buy food , Hunter returned
with a knife to scare the victim rather than to kill her. It questioned why
he would arm himself to return to
the victim's house when he knew she
was alone and eight months pregnant. It questioned why the victim,
who had a boyfriend, would want to
have sex with Hunter. It noted that

Continued on page 60

We do not agree that the consider-

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CLN/ 59

Volume 7 Number 6


State Court Decisions


(cont'd from page 60)

decision in concluding its "lack of insight"
"Evidence of lack of insight is indicative of a current dangerousness
only if it shows a material deficiency
in an inmate's understanding and
acceptance of responsibility for the
crime. To put it another way, the
finding that an inmate lacks insight
must be based on a factually identifiable deficiency in perception and
understanding, a deficiency that
involves an aspect of the criminal
conduct or its causes that are significant, and the deficiency by itself or
together with the commitment offense has some rational tendency to
show that the inmate currently poses
an unreasonable risk of danger." (In
re Ryner (2011) 196 Cal.AppAth 533,
548-549, fn. omitted.) Here, Hunter's
passing failure to refer to the fetus
or five-year-old son demonstrates no
deficit in perception or understanding; nor does it rationally demonstrate current dangerousness.
Finally, the Court rejected the Board's
reliance upon Hunter's 115 for alleged participation in a work stoppage. Hunter said
he was totally focused on avoiding violent
confrontations, and that he would continue
to do so in life.
The Board also referred to Hunter's
2008 discipline for not reporting to
work as justification for its decision.
The Board may rely on recent discipline as a basis for denying parole.
(See, e.g., In re Hare (2010) 189 Cal.
AppAth 1278; In re Reed (2009) 171
Cal.AppAth 107l.) But other than
this single incident, there is nothing
in the record to suggest that Hunter
has evidenced unwillingness to abide
by prison rules or that he is not a
good worker. To the contrary, his
supervisors speak highly of him; one
supervisor described him as being a
model for other inmates, displaying a
"good attitude and work ethic." And
the conduct for which he was disciplined in 2008 is not indicative of a
disregard of authority, much less of
future dangerousness. His failure to
report to work on one occasion was
an anomaly, which he explained by
his desire to avoid exposure to violence in light of threats that had been
made in connection with an inmate

work stoppage. Indeed, the Board
acknowledged the appropriateness of
avoiding violent conflict and articulated no reason to believe that the
choice Hunter made under the circumstances suggests he would pose
a danger if paroled. (In re Palermo.
supra, 171 Cal.AppAth at p. 1110
["Nothing in the record supports
a conclusion that [inmate] poses a
threat to public safety because he
once engaged in the unauthorized
use of a copy machine, once participated in a work strike, and once was
found in possession of a fan stolen by
his roommate."].)
]n its conclusion, the Court was very
explicit in its absence of "some evidence"
findings .
The Board has not articulated a rational basis supported by "some evidence" to support its conclusion that
Hunter will pose an unreasonable
risk to public safety if paroled. There
is no evidence that his mental state
(including his remorse, acceptance
of responsibility, or insight) indicates
current dangerousness. There is no
evidence that his narrative of the life
crime is inaccurate or minimizes the
significance, impact, or wrongfulness of his prior actions. Nothing in
the record links his life crime, committed in 1984, with an assessment
that he will pose an unreasonable
danger if now granted parole. Nor
has the Board articulated a rational
nexus between the 2008 disciplinary
event and a risk of future violence.
]n short, the record fails to provide
any rational basis for finding Hunter
unsuitable for parole.
Because of the conclusion we have
reached, we need not consider
Hunter's additional contention that
the denial of a further hearing for
seven years violates the ex post
facto clauses of the state and federal
The Court ordered the matter remanded
to the Board to promptly conduct a subsequent parole hearing in light of its opinion.

In re Carlos Jaime-Medrano (#)
(unpublished) 2011 WL 5343489
CA2(1) No. 8232027 (November 8,2011)

Carlos Jaime-Medrano pled guilty to
a 1989 first degree murder, an alcohol-infused drive-by shooting committed when he


was 19. Although it involved flashing
gang signs, he claimed he neither knew
the victim nor was a member of any gang.
He was found unsuitable by the Board in
December 2009, based on the gravity of
the offense and lack of insight. The Los
Angeles Superior Court denied his writ
petition, finding the Board's reasons supported by "some evidence." Jaime-Medrano then petitioned the Court of Appeal,
which issued an Order to Show Cause and
appointed counsel.
Jaime-Medrano had no prior criminal
record. ]n his two decades in prison,
he received no 115s. Rather, his prison
record is replete with vocational trade
certi fications, above-average work supervisor reports, and participation in AA
since 1991. His parole plans, if deported
to Mexico, include housing, work and AA
Jaime-Medrano's psych evaluations over
the years are supportive of parole. His
2009 risk ratings are "very low" to "low,"
with concomitant acknowledgement of
acceptance of full responsibility, genuine
remorse and good insight into the factors
of his offense. Previous risk ratings have
placed him as "no more dangerous than
the average citizen."
On this record, the Board nonetheless
denied him parole for the gravity of the
offense and lack of insight. In essence,
the Board could not rationalize how he
could blow away a human being he did not
know, for absolutely no apparent reason
other than his friend in the car told him to
do it.
And that the nature of this crime
does cry out for further exploration
in that you willingly shot a human
being for apparently no reason at all.
There were a number of speculative
reasons as to why this occurred, but
the bottom line is none has been
articulated to the Panel other than ...
you were told to shoot him." Deputy Commissioner Roger Watkins
added, "You'll see that it just doesn't
make-it doesn't make much sense
and it can't make people feel comfortable when you continue to say
because somebody told me to do it."
The superior court's reasons for denial
appeared disjunct.
The court explained, "Petitioner's
current thinking, in light of his prior
criminal behavior and the facts of

Continued on page 62
CLN/ 61

Volume 7 Number 6


State Court Decisions


(cont'd from page 62)

In re Prather (2010) 50 Cal.4th 238 ,
252.) ...

Next, the Board found petitioner's
commitment offense was committed in an especially atrocious and
cruel manner because "the motive
for this is trivial in relationship to the
offense, its impact and magnitude on
all parties concerned." The Board
also misunderstood or misapplied
this factor. "The offense committed
by most prisoners serving life terms
is, of course, murder. Given the high
value our society places upon life,
there is no motive for unlawfully
taking the life of another human
being that could not reasonably be
deemed 'trivial.' The Legislature has
foreclosed that approach, however,
by declaring that murderers with life
sentences must 'normally' be given
release dates when they approach
their minimum eligible parole dates.
(Pen.Code, § 3041, subd. (a).) ...
At his 2007 parole hearing, petitioner stated that he "shot twice." After
reviewing the entire record, we have
found nothing to indicate petitioner
fired more than two shots. Even if
the record supported the Board's
finding that three or four shots were
fired, the firing in the same volley of
one or two more shots that missed
the victim does not show that the
crime was committed in a heinous,
atrocious, or cruel manner. Two
additional shots that missed would
neither increase the victim's suffering nor demonstrate dispassionate
and calculated manner.
Strangely, the Board also found JaimeMedrano's immigration status a factor of
unsuitability. The Court quickly rejected
this notion.
The Board also referred to petitioner's immigration status and gang
affiliation when discussing why it
felt the commitment offense was especially heinous, atrocious, or cruel.
These factors are not mentioned in
the regulations, and they have no tendency to show that the commitment
offense was especially heinous, atrocious, or cruel. Nor do they provide
any evidence that petitioner would
pose a current danger to the public if
released on parole.

In rejecting the Board's reliance upon an
alleged " lack of insight," the Court relied
heavily on the recent Ryner decision.
"[A] 'Jack of insight' into past criminal conduct can reflect an inability
to recognize the circumstances that
led to the commitment crime; and
such an inability can imply that the
inmate remains vulnerable to those
circumstances and, if confronted
by them again, would likely react in
a similar way." (In re Ryner (2011)
196 Cal.AppAth 533, 547 (Ryner).)
"Thus, an inmate's 'lack of insight'
can provide a logical nexus between
the gravity of a commitment offense
and a finding of current dangerousness." (Ibid.) ...
In addition, a finding that an inmate
lacks insight is inherently vague
and subjective. (Ibid.) "[A]lthough a
'lack of insight' may describe some
failure to acknowledge and accept an
undeniable fact about one's conduct,
it can also be shorthand for subjective perceptions based on intuition or
undefined criteria that are impossible
to refute. [Citation] However, it is
settled that the Board may not base
its findings on hunches, speculation,
or intuition." (Ibid.)
"Evidence of lack of insight is indicative of a current dangerousness
only if it shows a material deficiency
in an inmate's understanding and
acceptance of responsibility for the
crime. To put it another way, the
finding that an inmate lacks insight
must be based on a factually identifiable deficiency in perception and
understanding, a deficiency that
involves an aspect of the criminal
conduct or its causes that are [sic]
significant, and the deficiency by itself or together with the commitment
offense has some rational tendency
to show that the inmate currently
poses an unreasonable risk of danger." (Ryner, supra, 196 Cal.AppAth
at pp. 548-549, fn. omitted.) ...
Alternatively, the Board's "lack of
insight" conclusion may be viewed
as shorthand for his failure to articulate insight that perfectly matches
the Board's subjective conclusions
regarding the commitment offense.
But the pertinent standard is lack of
insight, not imperfect or incomplete
insight, and any purported deficiency is only relevant to the extent it
"shows a material deficiency in


[petitioner's] understanding and
acceptance of responsibility for the
crime," so as to indicate current dangerousness. (ld. at p. 548.) Petitioner
has long taken full responsibility for
the murder, consistently expressed
remorse, and demonstrated a high
degree of insight into the deficiencies
in his character and behavior that Jed
him to shoot Romero. Petitioner's
failure to provide a different or differently phrased explanation that
satisfied the Board does not demonstrate a lack of insight, Jet alone
current dangerousness ....
In sum the Court found that the Board's
denial reason "lack any evidentiary support," and granted his petition ordering the
Board to conduct a new hearing consistent
with due process and In re Prather (2010)
50 Cal.4th 238.

In re David Plata (#)
(unpublished) 2011 WL 5996401
CA2(8) No. B231749 (November 29, 2011 )

David Plata was convicted of a 1995
attempted first degree murder. Plata had
been found unsuitable in 2008 ; the Los
Angeles Superior Court granted his writ
petition and ordered a new hearing. In
April 2009, the Board held that hearing,
and again found him unsuitable based
upon the gravity of the offense and a purported "lack of insight." Upon a new petition to the Los Angeles Superior Court,
he was again granted relief in the form of
an order for a new hearing. The state appealed, but the Court of Appeal affirmed
the superior court.
In 1993, then 13-year-old Plata had been
involved in a robbery. One of his crime
partners testified against him and another
crime partner, resulting in their convictions. In 1995, at the grand age of 15,
he decided to "put some holes" into the
snitch. Luring his victim into a supposed
marijuana smoking event, instead, Plata
pumped four bullets into him. When
he cried out in pain, Plata fire two more
bullets. Amazingly, the victim survived,
and was able to testify against Plata once
again .
Plata's last psych evaluation was favorable, noting that he had a "firm understanding of the underlying dynamics (i.e.,
poor anger control, criminal life style, immaturity - at age 15, and substance abuse)
related to his violent behavior."

Continued on page 64

CLN/6 3

Volume 7 Number 6


State Court Decisions


(cont'd from page 64)

prisoner Kenneth Brown's petition for a
writ of habeas corpus, ordering the Riverside County Superior Court to appoint him
counsel to (I) investigate the appropriateness of DNA testing as to Brown's conviction, and (2) filing a motion for DNA testing, if counsel's investigation reveals that
such testing would be appropriate under
Penal Code § l40S(b)(I) .
Brown claims his innocence, and that
a DNA test will prove it. Under the law,
he is entitled to appointment of counsel to
make such a request, without first proving
that his innocence will, in fact, be proven.
The Riverside County Superior Court
erred when it denied Brown's similar
habeas petition to that court.

In re Bonny Hathaway (#)
(unpublished) 2011 WL 5189114
CA4(2) No. E054273 (November 2, 2011)

Bonny Hathaway was convicted in May
2010 of one count of Penal Code § 666,
petty theft with a prior; she admitted a
prior prison term enhancement. The court
placed her on probation. In May 2011, she
violated probation, and the court sentenced her to two years, four months.
In September 2010, the Legislature
amended § 666 to require not one, but at
least three priors, to invoke felony charges
for the new offense. Hathaway filed a
petition for writ of habeas corpus in the
Court of Appeal, asking that she be given
retroactive benefit of the new law. The
state objected, on grounds that her case
had become final in May 2010. The appellate court disagreed, noting that the trial
court did not actually sentence Hathaway
to state prison (and thus make her crime
a felony) until after February 2011, when
she violated probation.
Hence, Hathaway was entitled to the
benefit of the September 2010 amendment
to § 666, since it was agreed she did not
have three priors. Accordingly, the court
of appeal granted her petition and ordered
the San Bernardino Superior Court to
vacate her felony conviction, enter the
conviction as a misdemeanor, and reduce
her sentence appropriately.

Habeas corpus was appropriate in this
instance, the Court observed, because
Hathaway was already overdue for release
under the new law, and an appeal would
not be timely decided .

In re Larnell Crosby (#)
(unpublished) 2011 WL 5387634
CA3 No. C067435 (November 9, 2011)

After being denied his administrative
appeal, and being denied relief in state
superior court, High Desert State Prison
prisoner Larnell Crosby filed a petition for
writ of habeas corpus in the court of appeal, seeking to have his correspondence
with the Department of Veterans Affairs
("DVA"), including its Office of General
Counsel, treated as confidential ("legal")
mail. The Court granted the petition, but
did not additionally permit, as Crosby
had asked, such confidential treatment
for prisoner mail with a veteran's service
organization ("VSO") of his choice.
Prison rules for confidential mail are
established in 15 CCR §§ 3142 and 3143.
These regulations, however, are silent as
to confidential correspondence with the
DVA. Crosby claimed that his claim was
governed not by the regulation, but by
statute: Penal Code § 2601. § 2601(b)
provides a statutory right to confidentially
correspond "with any member of the State
Bar or holder of public office." (ltal ics
added.) Crosby further cites,
"Persons and employees of persons
with whom inmates may correspond
confidentially and from whom
inmates may receive confidential
correspondence include: [<J[] (I) All
state and federal elected officials
[and] [<J[] (2) All state and federal
officials appointed by the governor or the President of the United
States." (Cal. Code Regs., tit. 15, §
3141, subd. (c), italics added.)
The Court noted that
[t]he Secretary of Veterans Affairs is
appointed by the President and heads
the Department, and the General
Counsel is likewise appointed by the
President. (38 U.s.c. §§ 303, 311.)
Thus, under the express language of


the regulation, petitioner is entitled
to confidentially correspond with
employees of the Department.
The attorney general complained that
Crosby's requested relief was too broad.
"Under [petitioner's] interpretation,
the regulation would allow for him
to communicate confidentially with
an accounting clerk or the custodial
staff because they are employed by
the Department of Veterans Affairs."
The Attorney General also broadly
complains that petitioner's argument
extends to field and regional offices
of the Department. The Attorney
General cites case law indicating
deference is given to an administrative agency's interpretation of the
controlling authority. (See Calderon
v. Anderson (1996) 45 Cal.AppAth
607, 613.) The Attorney General
suggests that petitioner's (and our)
interpretation of the regulation is
overbroad and, essentially, absurd.
The Court was not persuaded.
Whether the regulation applies to
communications with janitors or
other employees who perform an
entirely collateral function unconnected with the actual work of the
Department is not before us. There
is no assertion that petitioner's
communications are with such
employees. Given that the controlling language of the regulation is
clear and unequivocal as applied to
the limited facts presented, there
is no need to imagine all the possible circumstances under which the
language could be applied to reach a
dubious outcome. Accordingly, we
find meritorious petitioner's claim of
a right to confidentially correspond
with the Department.
The ruling as to confidential correspondence with VSOs went the other way. IS
CCR § 3141(c)(9) permits such correspondence with "a legitimate legal service
organization," such as the ACLU and
Prison Law Office. The Court thus looked
into the legal status of VSOs.
Regulations governing VSOs provide
for the recognition of national, state,
and regional or local organizations
to assist veterans in pursuing their
claims. (38 C.F.R. § 14.628 (2011).)

Continued 011 page 66

CLN/ 65

Volume 7 Number 6


State Court Decisions


(cont'd from page 66)

(3)); (3) "c1aim[ed]" to be such a
member in late November 2009 when
he returned to prison, leading to his
placement in ASU; and (4) engaged
in a "thorough discussion" with
the Department's ICC in February
2010 (at which the section 2933.6(a)
amendment was the focus) , but did
not disabuse the ICC of his continuing active membership in the NLR.
Accordingly, Efstathiou's petition was

In re Jason Lopez (#)
(unpublished) 2011 WL 6329840
CA3 No. C066644 (December 19,2011)

]n a virtually identical case to Efstathiou, the same panel of the Third District
Court of Appeal reached the same conclusion in the petition of Jason Lopez, also
seeking protection against newly enacted
Penal Code § 2933.6 as to validated gang
members. Here, Lopez was, and remains,
an announced member of the Northern
Structure (NS) prison gang. He believed
he should continue to earn ]5% credits
after the effective date of § 2933.6, January 25, 2010.
However, on January 28, 2010, Lopez
was taken to Classification and told that he
was now a validated NS member, which
foreclosed his earning any future conduct
Lopez made similar lega] arguments to
the Court regarding denial of due process
and ex post facto violations. For the same
reasons announced in the Efstathiou ruling, the Court denied his petition.


In re Frank Bautista (#)
Santa Clara County Superior Court No. 81643
(December 9, 2011)

Frank Bautista, down since 1981 on a
second degree murder conviction, had
been granted parole in 2009, which the
Governor reversed. The 6th District
Court of Appeal granted his petition, and
ordered the Governor to reconsider Bautista's case. The Governor reversed the
Board again, citing an unusual reason : a
pending investigation into confidential

matters which could result in new information counseling against Bautista's
parole. Importantly, the court noted, the
Governor did not deny parole "because of
a nexus between Petitioner's crime and the
confidential information."
] cannot allow Mr. Bautista to be
released from prison until prison
authorities have investigated these
allegations and determined whether
they are true and whether Bautista
remains involved in these activities.
The Board should consider the results
of this investigation at Mr. Bautista's
next parole hearing.
Bautista took his complaint to the Santa
Clara County Superior Court, arguing
that absent any new evidence, the Governor impliedly admitted that there was no
other sufficient evidence upon which to
detain him. The court ordered the state
to produce any new evidence as of August
5, 2011. The state ignored that directive,
which the court accepted as a concession
that there "neither was, not will be, any
further investigation and therefore there is
no new evidence against Petitioner."
Accordingly the court ordered the
Board's grant reinstated and Bautista's
"release on parole forthwith." Baustista is
no longer listed in the CDC locator, and is
presumably on parole.

In re James Stevenson (#)
Santa Clara County Superior Court No. 203910
(December 9, 2011)

James Stevenson was sentenced to life
for a kidnap-robbery, where the asportation was so slight that the District Attorney, at Stevenson's prior hearing, had
admitted it barely met the minimum for a
life offense. Nonetheless, the Board denied Stevenson parole in 20] Ifor the standard reasons of the gravity of the offense,
trivial motive and "moderate" risk ratings
by the psychologist. [Note: Stevenson had
another order from the superior court in
April 2011, ordering a new parole hearing,
but that order remains stayed by the Court
of Appeal , pending its ruling. (H0368]3.)
Presumably, the instant case comes not
from a remanded hearing, but from a regularly scheduled one.]
As to the "moderate" risk, it was
predicated solely on immutable historical
factors. The superior court relied upon In
re Lira (2011) ___ CaI.AppAth ___ for the
conclusion that just as static facts of the
crime may not suffice as reason to deny


parole, absent a nexus to current behavior, so, too, the static facts underlying a
moderate risk assessment are not sufficient, absent a nexus "probative of current
The court next rejected the Board
returning "to the [Lawrence-determined
"unworkable"] Dannenberg approach
of weighing factors against hypothetical
minimum elements," noting that the factors enumerated in the Board's regulations
are not reasons in and of themselves for
denying parole, but only for guiding assessment of public safety threat.
Next, the court found that the Board's
terminology "appropriate weight" - ascribed to an unsuitability factor - was
inherently so vague so as to deny the court
"meaningful appellate review." Finding the motive of robbery "trivial" in a
kidnap for robbery offense also missed the
mark, and was disapproved by the court
as "arbitrary and capricious." Similarly,
the court found the Board's use of the
terms "dispassionate" and "calculated" to
be part of a standard script from a murder
decision - and thus not giving Stevenson
the individualized consideration that due
process requires.
The court flatly rejected the Board's
decision because it was admittedly to the
wrong legal standard. The Board had
stated that the psychological report "does
represent some evidence to this panel as
to your current and unreasonable risk
of danger to society." Of course, "some
evidence" is the judicial review standard,
not the executive (administrative) decision
Finally, the court didn't fall for the Attorney General's legal argument as to how
she would have decided Stevenson's parole
However, this does not salvage the
parole denial because in the review
of broadly discretionary decisions
due process requires examination of
the reasoning given, not the result
achieved .... ]t is fundamental and
reversible error to use the wrong
analytical approach to its duties.
Because the Board did not employ
the appropriate analytical framework
in reaching its decision [citation], the
petition is granted and the Board is
directed to provide Petitioner with a
new hearing, comporting with due
process, within 100 days.
Continued Oil page 68

CLNj 67

Volume 7 Number 6


State Court Decisions


(cont'd from page 68)

with a "lack of insight" there appears
to be an eager willingness to make
adverse "credibility" ratings.
The court expressed hope that the time

is ripe "for the court of appeal to curtail
the Board's unfettered subjective discretion , and distill an objective standard, for
thi s finding, too."
Nonetheless, in reviewing the record
for a "modicum" of evidence, found the
Board's adverse credibility



finding is sufficient to support the denial
of parole. The court denied the petition
on this ground, but left open Schermerhorn's claim of ex post facto appl ication of
Marsy's Law, until the California Supreme
Court decides that issue in in re Vick



Last week the U.S . Supreme Court upheld a decision by the Ninth Circuit which reversed two murder convictions against
Bobby Joe Maxwell, the so-called "skid-row stabber."
The Ninth Circuit had determined that Maxwell's convictions were based primarily on ajailhouse informant's lies. The
informant was Sidney Storch, who was at the center of a scandal involving false testimony that defense lawyers said helped
convict 225 defendants.
Predictably, Justices Samuel Alito and Antonin Scalia said they would have reversed the Ninth Circuit 's ruling.
The State must give Maxwell a new trial or release him. Los Angeles County prosecutors did not immediately announce how
they would proceed in light of the ruling. "The district attorney's office will evaluate it and announce a decision in the future,"
said a D.A. spokesperson.
Shortly after the convictions were voided by the Ninth Circuit Court of Appeals in November, District Attorney Steve
Cooley said that he and his staff had begun analyzing the decision and might re-try Maxwell. He claimed there was corroborating evidence, and suggested there could be some DNA available.
Maxwell was accused of 10 killings of transients that took place between 1978 and 1979 in Los Angeles. Jurors convicted
him of two, acquitted him of three and deadlocked on five of the charges.
The Ninth Circuit said the two convictions were obtained through Storch by prosecutors who had little physical evidence and
had failed to get usable eyewitness identifications in lineups. One murder witness who viewed a lineup with Maxwell in it was
quoted as saying, "You've got everyone up there that doesn't look like him."
The 9th Circuit focused on the false testimony of Storch and the prosecution's failure to disclose that the witness had made a
secret deal with the prosecutor to win early release from his own prison sentence in return for his testimony.
The appeals court said Storch would glean information about inmates' cases from news stories and then claim they had confessed the details to him. (Storch died three years ago.)

Please Inform LSA of Staff's Abuse of Visiting
From time to time CLN has been advised by inmates and their visitors about staff's abuse of inmates
and visitors during visiting. The State Senate is investigating inmate visiting issues and will report on the
subject; it has asked the Life Support Alliance (LSA) for input.

If you have personally experienced some typically petty, stupid, and sometimes illegal actions by staff,
either one-time occurrences or those that occur regularly at your institution, please take the time to write
to LSA with particulars. Anything - from not being allowed to take documents into visiting, to clothing
hassles, to punitive rules about when you can go to the bathroom, unnecessary apparel restrictions, madeup "rules," inappropriate language or disrespect by staff, inappropriate time constraints, delays, or terminations - let LSA know the details. LSA will provide this information to the Senate committee.

Write to: Life Support Alliance
P.O. Box 3103
Rancho Cordova, CA 95741
CLN/ 69

Vo lume 7 Numbe r 6



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