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In re Reed

March 5, 2009

IN RE GREGORY DWAYNE REED ON HABEAS CORPUS.


(Alameda County Super. Ct. No. 80260C). Larry J. Goodman, Judge.

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

CERTIFIED FOR PUBLICATION

The Board of Parole Hearings (Board) is charged with the responsibility for setting parole release dates for those prison inmates serving an indeterminate sentence and eligible for parole. Provisions of the Penal Code and title 15 of the California Code of Regulations govern the Board‟s discretion in setting such dates. The Board must deny a parole release date when "in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society." (Cal. Code Regs., tit. 15, § 2402, subd. (a); see also Pen. Code, § 3041, subd. (b).) We interpret the term "danger to society" so that it sensibly informs the Board‟s suitability determination by permitting it to deny release to a life prisoner who has demonstrated a current unwillingness or inability to adhere to the reasonable conditions of parole. On that basis, the Board‟s decision to deny parole to petitioner Gregory Dwayne Reed is supported by "some evidence," and the petition for writ of habeas corpus is denied.

BACKGROUND

The Commitment Offense

According to the May 1995 probation report, "On the evening of October 24, 1984, into the early morning hours of October 25, 1984, [petitioner] and his brother, Jesse Reed, were prowling the streets of Oakland looking for someone to rob. At one point [petitioner] and his brother forced a young woman onto the street to entice a customer for an act of prostitution. [Petitioner‟s] brother instructed her to take her customer to a predetermined location where they would then rob him. [Petitioner] watched her to make sure she didn‟t run. The young woman flagged down a man, but he turned out to be a plain clothes police officer so that robbery plan failed. [¶] [Petitioner‟s] brother then spotted a prostitute getting into a truck with the victim, Joe Bates. When the prostitute and Mr. Bates were engaged in an act of intercourse in the truck, Jesse Reed and [petitioner] approached the truck. Jesse Reed opened the driver‟s door, pointed his revolver at Joe Bates and demanded his money. Mr. Bates told [petitioner] he didn‟t have any money and he begged Jesse Reed not to shoot him. The prostitute had a $20 bill that Mr. Bates had given her and she tried to hand it to [petitioner]. [Petitioner] reached into the truck but was unable to get the money. Jesse Reed then shot Mr. Bates in the heart. Mr. Bates died that same morning at Merritt Hospital."*fn1

On April 30, 1985, petitioner was convicted by a jury of first degree felony-murder committed during an attempted robbery (Pen. Code, § 187). The jury also found petitioner was armed with a firearm in the commission of the crime (Pen. Code, § 12022, subd. (a)). Petitioner was sentenced to state prison for a term of 26 years to life.

Petitioner's Background

According to the life prisoner evaluation report prepared for his June 2006 parole hearing, petitioner was born in Texarkana, Arkansas in 1961. When he was five, he moved with his family to California, where he grew up. Petitioner graduated from high school in 1979, and attended Alameda College for one year. Prior to the summer of 1984, he held jobs as a dishwasher and building manager, and served briefly in the United States Army.

Petitioner has no juvenile record. As an adult, he had two misdemeanor arrests, the first for engaging in a verbal altercation in public and brandishing a weapon, the second for auto tampering. He was convicted by plea of the auto tampering charge (Veh. Code, § 10851) and sentenced to 30 days in jail.

Misconduct While Incarcerated

As of June 2006, while incarcerated at the California Department of Corrections and Rehabilitation (CDC),*fn2 petitioner had received 11 form CDC 115 rules violation reports (CDC 115), the most recent on February 10, 1995, for activating a smoke detector. A CDC 115 documents misconduct that is "believed to be a violation of law or is not minor in nature." (Cal. Code Regs., tit. 15, § 3312, subd. (a)(3).) He had also received 19form CDC 128-A custodial counseling chronology reports (CDC 128-A). A CDC 128-A documents incidents of "minor misconduct." (Cal. Code Regs., tit. 15, § 3312, subd. (a)(2).)

A psychological evaluation prepared for the Board in February 2006 concluded that "[petitioner‟s] commitment offense was not related to a mental disorder nor was it aggravated or marginalized by substance abuse. It appears to have been the result of his distorted thought processes as well as his affiliations and poor impulse control. However, during the course of his 21 years of incarceration, he has matured, and he has developed significant insight and understanding as to his commitment offense, as well as the factors that were contributory. He has been able to sustain a high level of impulse control despite the fact that he has received a couple of work related disciplines . . . . He has upgraded vocationally and educationally. He appears to have made the most appropriate personal, social and behavior adjustments in this institutional setting. As a result of the above factors, it is the opinion of this examiner that [petitioner‟s] risk of dangerousness is significantly lower than that of the average inmate incarcerated here at [California State Prison,] Solano."

Parole Denials

Petitioner was received by the CDC on July 8, 1985. The CDC set his minimum eligible parole date as September 27, 2001. At petitioner‟s first parole hearing in June 2001, the Board found him unsuitable for parole and gave him a three-year denial. At his second hearing, in February 2005, the Board gave petitioner a one-year denial and recommended that he "remain disciplinary free, not even a 128." However, in April 2005, petitioner was cited for " "Leaving work without Permission.‟ " At his third parole hearing, in June 2006, petitioner explained the incident giving rise to the April 2005 CDC 128-A. He stated that he had finished his work in the kitchen early and asked an officer to let him out; the officer did so and petitioner returned to his housing unit. The next day, the officer informed him that he would receive a CDC 115 for leaving work early; this was later reduced to a CDC 128-A. Petitioner conceded, "Part of my responsibility was to make sure that my work supervisor knew where I was at at all times. But I, I relaxed the rules myself and left work without letting my supervisor know that I was leaving."

At the conclusion of the June 2006 parole hearing, the Board again found petitioner unsuitable for parole, concluding that he would continue to be an unreasonable risk of danger to society or threat to public safety if released. ...


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