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In re Ross

February 10, 2009; as modified March 6, 2009

IN RE TIMOTHY ELLIS ROSS ON HABEAS CORPUS.


ORIGINAL PROCEEDINGS. Petition granted. (Super. Ct. No. 06HB1582).

The opinion of the court was delivered by: Scotland , P. J.

CERTIFIED FOR PUBLICATION

In November 1984, when he was 27 years old, Timothy Ross (defendant) and another man decided to rob Kelly Marshall (the victim). Defendant beat the victim into unconsciousness and then, with the other man's help, threw the victim, "head first, face down," over an embankment after they took his wallet and his boots. The victim's dead body was discovered the next day.

A citizen's tip led to defendant's arrest and his guilty plea to second degree murder. He was sentenced to an indeterminate term of 15 years to life in state prison.

In May 2006, the Board of Parole Hearings (the Board) found that defendant was suitable for parole; however, in October 2006, the Governor reversed the Board's decision to release defendant on parole. Acknowledging defendant's rehabilitative efforts in prison, his positive evaluations by mental health and correctional professionals, and his work plans and relationships with family and friends if released on parole, the Governor found that defendant's criminal history, the "extremely brutal and callous" nature of the murder, and his misconduct in state prison, including threatening prison staff, demonstrated that despite his rehabilitative efforts, his release would pose an unreasonable risk of danger to society.

On December 21, 2006, this court denied defendant's petition for writ of habeas corpus (case No. C054378) because the petition did not show that he had first sought relief in the trial court. (Cal. Rules of Court, former rule 60(d)(2) ["A Court of Appeal must deny without prejudice a petition for writ of habeas corpus that challenges the denial of parole or the petitioner's suitability for parole if the issue was not first adjudicated by the trial court that rendered the underlying judgment"]; now rule 8.385(c)(2).)

Defendant petitioned for review by the California Supreme Court, which directed us to issue an order to show cause, returnable before the Shasta County Superior Court, ordering the Director of Corrections and Rehabilitation to show case "why the Governor did not abuse his discretion in reversing the Board of Parole Hearings' May 2006 determination that [defendant] was suitable for parole, and why [defendant] remains a danger to public safety." We, of course, complied with the Supreme Court's directive.

The superior court denied the petition for writ of habeas corpus, ruling the Governor's decision was supported by defendant's criminal history and the nature of his crime.

Defendant filed the present petition for writ of habeas corpus (case No. 57249) on October 30, 2007. This court issued an order to show cause on February 7, 2008. Thereafter, the California Supreme Court decided In re Lawrence (2008) 44 Cal.4th 1181 (hereafter Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241, clarifying its decisions in In re Rosenkrantz (2002) 29 Cal.4th 616 (hereafter Rosenkrantz) and In re Dannenberg (2005) 34 Cal.4th 1061 and the limits on the Governor's broad discretion to deny parole. We asked the parties to submit supplemental briefing addressing those decisions. They have done so.

As we will explain, defendant's especially heinous, atrocious, or cruel method of murdering the victim; his prior acts of violence; his subsequent threats to prison staff after incarceration; and a psychologist's opinion that defendant "continues to exhibit dependent features and an exaggerated need for acceptance" (a mental state that had contributed to his history of violent crime) are some evidence supporting the Governor's finding that defendant was unsuitable for parole in 2006.

However, Lawrence leads us to conclude the Governor's written decision is flawed because it does not contain a more explicit "articulation of a rational nexus between th[e] facts and current dangerousness." (Lawrence, supra, 44 Cal.4th at p. 1227.) Following a summary of facts tending to show unsuitability for parole and those tending to show suitability, the decision simply states: "[A]fter carefully considering the very same factors the Board must consider, I find that the negative factors weighing against [defendant's] parole suitability presently outweigh the positive ones."

We cannot fault the Governor for not being more specific.

This is so because a similar explanation of a denial of parole was approved in Rosenkrantz, where a Governor's decision stated without specificity that the inmate's "institutional behavior does not outweigh the circumstances of the crime in assessing his suitability for parole" and that the gravity of the inmate's offense and other circumstances "'outweigh the arguments advanced for release, such as . . . his prison record or his parole prospects.'" (Rosenkrantz, supra, 29 Cal.4th at p. 682.)

However, after the Governor's denial of parole in this case, Lawrence found wanting an earlier Governor's decision that set forth the competing facts and concluded "'the factors weighing against [petitioner's] parole suitability presently outweigh the positive ones tending to support it. Accordingly, because I continue to believe that her release from prison would pose an unreasonable risk of danger to society, I REVERSE the Board's 2005 decision to grant parole[.]'" (Lawrence, supra, 44 Cal.4th at pp. 1200-1201.)

Because Lawrence requires more of an explanation than did Rosenkrantz, which was the controlling law when the Governor made the parole decision in this case, we conclude that the appropriate disposition is to remand this case to the Governor for further proceedings consistent with the standards articulated in Lawrence, supra, 44 Cal.4th 1181.*fn1

FACTUAL AND PROCEDURAL BACKGROUND

Defendant has a criminal history dating back to 1975.

From 1975 to 1983, he was convicted in 11 cases for crimes that included petty theft and vandalism in 1975; burglary and vehicle theft in 1975; public fighting, maliciously disturbing someone by loud and unreasonable noise, or using offensive words inherently likely to provoke an immediate violent reaction in 1975; assault with a deadly weapon in 1975; grand theft in 1978; battery in 1980; and a 1982 assault with an automobile, for which he was convicted of assault with a deadly weapon in 1983.

Although he served time in jail for some of his offenses from 1975 to 1983, he was never committed to prison--instead, receiving the benefit of probation. This changed when defendant committed second degree murder in 1984. Because he pled guilty to the offense, the facts of the murder are taken from the probation report.

Defendant and an associate named Friggo met the murder victim in a bar. They drove in the victim's pickup truck to a secluded area. Defendant and Friggo decided to rob the victim and forced him out of the truck during a struggle. Defendant assaulted the victim, giving him "a sound thrashing which eventually rendered the victim unconscious." Defendant and Friggo then took the victim's wallet, removed his boots, and threw him over an embankment, "head first, face down," before leaving in the victim's truck with the victim's wallet and boots.

The next day a man discovered the victim's dead body "lying just as it had landed after being thrown down over the bank." The victim, who had a blood-alcohol content of 0.24 to 0.35 percent, died "most likely" from injuries caused by the assault and from his exposure to the elements. Defendant was apprehended after a lengthy investigation and a tip from the secret witness program. He confessed and pled guilty to second degree murder.

Defendant told the probation officer who was preparing the sentencing report, "I can't really give a statement, if I told what happened I wouldn't look so bad to you but I would look like a rat to others. If I told you part of it[,] it would make me look bad." The probation officer, who was familiar with defendant from prior criminal cases, stated "alcohol turns [him] from a cooperative and reasonable individual into an emotional, volatile, irresponsible and exceedingly dangerous individual under the right circumstances." The probation officer noted that defendant was the type of person who could "be easily lead, influenced or duped" by his companions and who had "a strong desire for acceptance." Describing defendant as a "giant" who had the "strength" of a "bear," the probation officer predicted that "[w]ith the introduction of alcohol and the suggestion of a companion that [defendant] engage in any type of violent or dangerous behavior, there is little question . . . that [defendant] would readily involve himself in any type of assaultive or combative situation, for whatever reason," and that "[a]bsent an absolutely fool-proof means to ensure that [defendant] cannot get his hands on any alcohol, he would have to be considered a threat to the community."

Defendant eventually related his version of the murder as follows:

Defendant, Friggo, and the victim were on the way to purchase marijuana for the victim from the neighbor of defendant's brother. Friggo needed to stop and urinate. After Friggo got out of the truck, the victim pulled out a pistol and began shooting it through an open window. When defendant yelled at him to put the weapon down, the victim turned the gun on defendant and threatened him. Defendant hit the victim, the two men fell out of the truck, and defendant knocked out the victim. Friggo returned and began going through the victim's pockets. They agreed the victim was a "jerk" and removed his boots before tossing his unconscious body over an embankment, so he would have to walk home without any shoes when he awakened. Friggo and defendant then drove off in the victim's truck. Defendant thought he had only knocked out the victim.

The next day, defendant's brother went to check on the victim and told defendant the victim was dead. Defendant claimed that his brother told him to get rid of the gun by throwing it over the dam, and that defendant did not realize he "was throwing away the best part of [his] defense at the time."

Defendant began serving his prison sentence in August 1985, with a minimum eligible parole date of December 27, 1994.

During his incarceration, he received four Form 115 and two Form 128-A write-ups for misconduct in prison. (Cal. Code Regs., tit. 15, § 3312 [when an inmate commits misconduct that "is believed to be a violation of law or is not minor in nature," it is reported on a Form 115 rules violation report; minor misconduct is documented on a "Form 128-A, Custodial Counseling Chrono"].)

Two of the Form 115 write-ups involved threats to prison staff. In March 1989, defendant lost credits and privileges for unspecified conduct described as "Threatening staff"; and in December 1991, he lost credits and privileges for unspecified conduct described as "Force/Violence threatened Staff." Apparently, these incidents involved verbal threats only, not actual violent conduct, because a report prepared for a parole hearing in 1999 states that while defendant "had verbal altercations with staff," he had "not been involved in physical violence since his commitment ...


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