ORIGINAL PROCEEDING: Petition for Writ of Habeas Corpus. Petition granted.
The opinion of the court was delivered by: Hull, J.
CERTIFIED FOR PUBLICATION
On the evening of November 22, 1983, Clarence Burdan shot and killed his wife while the two sat in her car in front of their residence discussing their marital problems. Burdan thereafter entered a negotiated plea of guilty to second degree murder and, on June 21, 1984, was sentenced to an indeterminate term of 15-years-to-life in state prison.
On February 9, 2005, the Board of Parole Hearings (Board) conducted a parole consideration hearing and found Burdan suitable for parole. However, the Governor reversed the Board's decision, concluding Burdan's release would pose an unreasonable risk to public safety because of the "grave" nature of the conviction offense.
Burdan filed a petition for writ of habeas corpus in the superior court, which that court denied on August 7, 2006. On June 29, 2007, Burdan filed a petition for writ of habeas corpus in this court. On August 16, 2007, we issued an order to show cause to Matthew C. Kramer, Warden of Folsom State Prison (the Warden) in order to review the Governor's decision.
The Warden filed a return to our order to show cause and Burdan filed a denial to the return. In a published decision issued on March 24, 2008, we concluded the Governor's denial of parole was not supported by the record and granted Burdan's petition. (In re Burdan (2008) 161 Cal.App.4th 14.)
The Supreme Court granted the Warden's petition for review. (In re Burdan, review granted July 9, 2008, S163311.) Thereafter, the high court issued two companion decisions, In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), clarifying the appropriate standard for reviewing a parole decision of either the Board or the Governor. The court transferred the matter back to this court with directions to vacate our earlier decision and reconsider the matter in light of Lawrence and Shaputis.
On November 3, 2008, we vacated our earlier decision. Having reconsidered the matter as directed, we again conclude the Governor's decision is not supported by the record and grant Burdan's petition.
FACTS AND PROCEDURAL HISTORY
At his parole consideration hearing, Burdan acknowledged the accuracy of the information concerning the underlying murder as set forth in the 1984 probation report. That report reveals the following:
Burdan married the victim, Charity Adams, in April 1974. At the time of the murder, they had two children.
At approximately 8:00 p.m. on November 22, 1983, Stephen Hall, a Sacramento police officer who was off duty and at home at the time, walked outside and heard a horn honk and a female voice calling his name with some urgency. Hall lived next door to the Burdans. Hall began walking toward a Honda Civic in which he could see Burdan and his wife arguing and struggling.
When Hall got within five feet of the car, he heard three small-caliber gunshots. He immediately ran back into his house and retrieved his own gun. When Hall came back outside, he heard two more shots.
Hall yelled at Burdan to open the car window, and Burdan complied. Hall could see that Burdan was fumbling with something on his lap and heard him say several times, "'I can't make it work. I can't make it work. I want to finish the job.'" Burdan was emotionally upset, shaking, nervous and distraught.
Hall reached in and grabbed a handgun away from Burdan. Burdan struggled briefly over the gun, saying, "'I want to finish this . . . . I want to make it work.'" Hall got Burdan out of the car, where Burdan said, "'Steve, give me your gun. I won't hurt you. I just want to kill myself.'" Hall pulled Burdan away from the car with some difficulty, because Burdan "was walking very poorly and was not well coordinated." Burdan kept asking for Hall's gun and appeared to be looking at Hall as if to size him up and determine if he could take the gun by force. Hall knocked Burdan to the ground.
Hall eventually handcuffed Burdan to a light post and said he wanted to check on Burdan's wife. Burdan said, "'Steve, it's no use. I know she's dead.'"
The victim had eight gunshot wounds, five entry and three exit. One wound was to the left temple, two to the upper right temple, one on the left side of the neck, one on the right side of the neck, and three to the chest.
The handgun used by Burdan was a single-action, .22-caliber revolver. In order to make the gun fire, it was necessary to cock the hammer before each shot. Burdan had borrowed the gun the day before from an acquaintance. At the time, he told the acquaintance he wanted the gun for target practice. The gun was loaded when Burdan received it. Five live rounds of ammunition were found in Burdan's jacket after he was taken into custody.
It was later revealed that Burdan and his wife had been having marital difficulties for a month or two before the shooting. Burdan had discovered that his wife had begun a sexual affair with a female co-worker. He had in fact observed his wife and the other woman engaging in sex at the co-worker's home two or three days before Burdan committed the crime. Burdan had briefly moved out of the home, but then returned and made his wife move out the day before the shooting.
On the day of the shooting, Burdan had apparently called his wife and arranged to meet with her that evening. Also on that day, the victim called her sister and told her that she had informed Burden she was leaving him, he had asked her to stay, she had said she could not, and Burdan had said he understood.
A neighbor told police the victim had spoken with her two weeks before the murder and said she was afraid that Burdan was going to do something to hurt himself. The victim said Burdan was depressed and indicated he needed to see a psychiatrist. Others also reported that Burdan appeared depressed for about two weeks before the murder. A co-worker described Burdan as being "close-mouthed and keeping his personal business to himself." He noticed something had been bothering Burdan for about a month before the murder, that his production had declined, and that Burdan would just sit and stare at the floor for long periods of time. The co-worker had also seen Burdan crying.
The victim's sister, who was living with the Burdans at the time, revealed that the day before the murder, Burdan was acting hostile and she was afraid something was going to happen. The victim's mother stated that the day before the murder, the victim told her she was staying with a friend because Burdan had beaten her up and she was afraid of him.
Burdan told the probation department in 1984 that he moved out of the home in October 1983 because of marital problems. He said he wanted a divorce, but the victim did not. He said he accused the victim of spending a lot of time with her co-worker but she said it did not matter how he felt because she would continue doing as she pleased. Burdan said that a few days before the murder, he went to the other woman's home and saw her and his wife making love together. He confronted them and later told the victim to move out. Burdan acknowledged he slapped her. The next morning she moved out.
Burdan admitted borrowing the handgun from a friend and purchasing ammunition. He said the plan at the time was to kill himself. He said he arranged to meet the victim to discuss bills and, when she arrived at their home, got into the car with her. They smoked cigarettes and talked for a while. She eventually threw her wedding ring on the ...