Trial Court: Alameda County Superior Court Trial Judge: Hon. Demetrios P. Agretelis.
The opinion of the court was delivered by: Lambden, J.
CERTIFIED FOR PUBLICATION
Petitioner Bennie Moses was 30 years old on Thanksgiving Day in 1979 when he and his brother drove around Oakland, California, visiting family and friends. At one of their stops, Moses, having consumed copious amounts of alcohol and talked about "getting even," visited Willie Rhodes, whose brother had killed Moses's father in a gambling dispute five years before. Moses shot Rhodes once at close range, killing him, and fled. He voluntarily surrendered to police later that day. A jury found Moses guilty of second degree murder; the trial court sentenced him to serve 17 years to life in prison. Moses was sent to prison in 1980. Under California's statutory parole scheme he was presumptively eligible for release over a dozen years ago.
Moses's behavior in prison has been exemplary. He has a nearly spotless disciplinary record (his only instance of misconduct was watching television without using the required headphones 27 years ago). He has performed years of outstanding work in the prison laundry. He has shown insight into the causes of his actions and worked to understand and change his behavior by engaging in decades of self-help programs such as Alcoholics Anonymous (AA) and the Victim Offender Reconciliation Group (VORG.) He has consistently taken responsibility and repeatedly expressed remorse for his commitment offense. Nonetheless, after 29 years, 13 parole consideration hearings, and three decisions to grant parole by the Board of Parole Hearings (Board), Moses remains in jail. Governor Arnold Schwarzenegger has reversed all three of the Board's decisions to release Moses. We ask why?
The Governor found that Moses's release on parole posed an unreasonable risk of danger to public safety for three reasons, each of which is seriously flawed. First, the Governor concluded that the second degree murder was "especially atrocious." This conclusion is not supported by the evidence, and not only because the Governor ignored, or inaccurately described, certain critical and undisputed factual circumstances. Second, the Governor concluded that, while Moses "says he accepts responsibility for his actions and is remorseful, he maintains that he shot [Rhodes] in self defense." Moses has not maintained such a claim; furthermore, any discrepancies between Moses's account of the shooting are insignificant in light of his undisputed acceptance of responsibility for the crime, his repeated expressions of remorse, and his post-conviction history. Third, the Governor stated that, at the time of the murder, Moses "had a significant record of criminal violence," even though Moses did not have such a record. The Governor's analysis merely mentions without discussion other very significant parole suitability factors, such as Moses's flawless behavior in prison for the last 29 years. In short, the Governor's reasoning relies heavily on immutable factors, at times unsupported by evidence, and amounts to little more than the "rote recitation" of only those factors suggestive of risk. (See In re Lawrence (2008) 44 Cal.4th 1181, 1210 (Lawrence).)
The Governor did not articulate any rational nexus between his reasons for reversing the grant of parole and any purported present, unreasonable risk of danger to public safety posed by Moses's release, thereby failing to meet the standard necessary for the denial of parole discussed by our Supreme Court in Lawrence, supra, 44 Cal.4th 1181. We conclude that there is no evidence in the record to support the Governor's repeated reversals of the Board's grant of parole and that further consideration by the Governor cannot fill that void.
Therefore, we hold that the Governor's reversal of the Board's decision to grant parole violated Moses's due process rights. We grant Moses's petition, order the Governor to vacate his decision, and reinstate the Board's July 10, 2007 grant of parole.
Moses's Second Degree Murder of Rhodes
At Moses's July 2007 parole consideration hearing before the Board, the presiding commissioner read this account of Moses's murder of Rhodes from the Board's April 24, 2006 report:
" `[B]rothers Bennie and Larry Moses were driving around Oakland, stopping in to see friends and relatives and drinking. Bennie consumed copious amounts of alcohol. They stopped at their sister Joyce's house. Joyce was married to Eddie Rhodes, the victim's brother. Bennie, Larry and Eddie then drove to a liquor store, and Bennie Moses showed Eddie Rhodes his 44 Magnum revolver and smiled. Eddie asked Bennie what . . . that was supposed to mean, and received no answer. At the time of this incident, Larry Moses was seated in the back seat of the automobile. When the three men returned to Eddie and Joyce's home, Eddie heard Bennie talking to his sister about getting even. Joyce asked Bennie to leave, so Larry and Bennie departed.
" `Bennie and Larry stopped by the home of their sister Mary. Bennie waited in the car while Larry went inside. Larry walked in, walked around the living room, and left, slamming the door. Mary asked him where he was going, but Larry did not answer. About 3:30 p.m., Willie Rhodes was home with his common-law wife and two adult friends. There were six children in the house, the oldest Ramona Bearquiva, . . . aged 13. The adults were in the kitchen and the children were in the dining room. There was a single knock at the front door and in walked Bennie Moses. Bennie walked into the dining room and asked to see Willie Rhodes. Ramona saw that Bennie had a large revolver in his right hand and that the hammer was cocked. Willie came out of the kitchen, noticed the gun, and said that it was a nice piece.
" `The two men then walked into the living room and stopped. Bennie raised the gun to Willie's left side, with the muzzle a few inches from him and fired. Willie stumbled back and collapsed. Ramona saw what looked like a rifle barrel come through the open front door and then disappear. Next, Ramona saw Larry Moses look in the front door, and then he closed the door. Bennie said, bye, and went out the door. Ramona then went across to a bathroom window and saw Bennie and Larry Moses running across a parking lot toward the back door of a Laundromat. Willie Rhodes was pronounced dead about 40 minutes after the police arrived at the scene. The results of the autopsy were that the bullet had entered the victim's chest on the left side and came out his right side, finally lodging in his right bicep. The bullet had destroyed the victim's liver.' "
This account is almost identical to that written by a senior trial deputy district attorney of the Alameda County District Attorney's Office in a July 1980 letter to the probation department, prior to Moses's sentencing. That letter further recounted: "When the police arrived, chaos reigned. Willie's common-law wife, Esther Bearquiver, in a fit of hysteria had shoved her hand through a window and been severely gashed on the arm. She was standing on the front porch amid a large amount of blood while inside kids were running in all directions, screaming and yelling."
The deputy district attorney also stated that Moses's father was shot to death by the victim's brother five years before over a $2.00 gambling debt; that Moses surrendered to police shortly before midnight on the day of the killing; that his brother surrendered the next day; that the murder weapon, registered to Moses, was found in February 1980 under a house in San Leandro; and that Moses's brother was convicted of voluntary manslaughter.
The record also contains an August 8, 1980 probation department report. It summarized Moses's offense this way: "On November 22, 1979 (Thanksgiving Day), the defendant and his brother [a co-defendant] visited various relatives during the course of the day. Defendant was drinking heavily. The two defendants went to the home of the victim . . . . Defendant entered, asked to see Willie, and the two men went in the living room. A short time later, Willie was killed by a single shot, and defendant and his brother ran away from the scene."
At the 2007 Board hearing, the presiding commissioner, after reading the account, asked Moses to state what happened in his own words. Moses stated: "We left my sister Joyce's house, Mary's house, and then we was on my [sic] way over to my auntie's house, my aunty, she lived a few blocks down from Willie. My brother [Larry] had to use the bathroom." Moses continued: "And before, he couldn't wait, so he went by the big tree, and I went on and knocked on the door and went in. And then I see Willie, like I said, and we walked into the living room, me and him went to arguing there for a minute. I started to walk, tried to walk, and then we kept on arguing and fussing. Next thing I know, he was talking about hurting me. See, I know Willie really well, and he ain't a good person. And next thing I knew, he went to reach in his pocket, and I pulled mine out of my waist, it wasn't in my hand, and shot him and ran. . . . My brother never entered the house, and he didn't have a rifle."
Moses told the Board that he had his gun tucked in his waist when he entered Rhodes's home; that he did not know why his brother Larry went into Mary's house and slammed the door; that he did not know why Larry needed to stop at Rhodes's house when they were a couple of blocks from their destination, but guessed that he could not "hold it," which was also why Larry relieved himself by the tree rather than enter Rhodes's house; and that his brother was under the influence of alcohol as well. Moses also said that he did not recall seeing any children in Rhodes's house.
Moses acknowledged to the Board that Rhodes was the brother of Moses's sister's husband, and that one of Rhodes's brothers had killed his father some years before. He denied that he was upset with Rhodes because of the death of Moses's father, but said that he "knew . . . what he was. He even shot his own brother." Moses said that he "had nothing against" Rhodes, stating "I knew him. We worked together, we drank together." When asked specifically why he went to see Rhodes, Moses replied, "I know him."
The 1980 probation department report stated that "Rhodes was on felony probation for assault at the time he was killed. He had a prior record for assaults and a history of being armed. His probation offense involved shooting at his brother. He was considered to be an alcoholic. On October 24, 1979, he had been arrested for false imprisonment and other charges after he held his wife and her children at gunpoint and threatened to kill them. Police were able to talk him out of the house. Later, his wife refused to sign a complaint, and Willie told his probation officer the gun was a toy."
Throughout the 2007 Board hearing, Moses acknowledged that he had a drinking problem at the time of the murder, and had been drinking that day. He stated that he started drinking alcohol as a child, and drank sometimes on the weekdays, "pretty much" every weekend, "to feel good." He described himself as a "recovering alcoholic."
When the presiding commissioner, trying to "figure out the scenario," stated that "[i]t's Thanksgiving Day, and you're visiting family to family to family, and you're packing a gun," Moses stated, "But you know, too, Ma'am, I think alcohol played a great, great role in that, too." He told the Board that he was carrying a gun when he entered Rhodes's home because "[a] week prior to that incident, we went to 65th Village, which is the projects in Oakland, me and my wife. We was going to visit her mother. A man tried to get in the driveway, and only one car can get in the driveway, so I blowed, he wouldn't move. And then I asked him will he move, and then he pulled out a gun on us, and then he drove on by and shook it at me. And so that's, every time I go over there, I usually take that with me, because I was scared." He also stated that he had gone to see his mother-in-law earlier that day, and that after shooting Rhodes he dropped the gun in the living room and left, and had no idea how it ended up in San Leandro.
Moses's account of events to the Board was similar to what he said in 1980, as described in the 1980 probation department report: "When he was interviewed, defendant denied that he had a grudge against Willie Rhodes. He states that they often drank together and were on good terms. However, defendant knew [Rhodes] had a bad temper and a history of shooting at people. [¶] Defendant states he was drinking heavily on the day of the present offense. He was carrying a gun because someone had threatened him a few days earlier. Defendant stopped by to visit with Willie Rhodes. As he entered the house, Willie started cursing him, and defendant saw him reach for a gun. Defendant pulled out his gun and shot and ran away from the house. He says his brother's part in it was just to poke his head in after he heard the shot. Defendant then went to his mother-in-law's house and slept for awhile before he surrendered himself."*fn1
Moses's History Before the Murder
The 1980 probation department report stated that Moses was born in Arkansas, moved to Oakland in 1958, and was the second of 10 children. Moses said he had dropped out of school in ninth grade, had completed a welding course, was unemployed at the time of the murder, had worked in a foundry and in construction, had married in 1977,*fn2 had two children born of casual relations with other women, did not use drugs, and, although he admitted to drinking beer and gin, "mostly on holidays," he did not consider himself to have a drinking problem.
The 1980 probation department report further stated that "the family pattern includes heavy drinking and fighting. The parents were arrested for drunkeness [sic], assault with a deadly weapon, and battery. The children grew up in a disruptive atmosphere with predictable results. Most of the family have arrest records. One brother was shot and killed during a robbery. Defendant's father was shot to death in 1975 by Willie Rhodes's brother. Defendant's brother, Larry, the co-defendant in the present offense, is on probation for shooting one of his sisters."
As for Moses's prior criminal history, the 1980 probation department report stated that his juvenile and adult probation records had been destroyed. However, it stated that Moses was committed as a juvenile to the California Youth Authority in 1965 for a violation of Penal Code section 245, and paroled seven months later. Moses told the Board in 2007 that he could not remember the charge, but that he was sent to the California Youth Authority as a child "for my aunty, my uncle was beating up my aunty, and she was hollering for help and I helped her. But she wouldn't come to the court and testify for me, so they sent me to Nellis for, I think, 90 days or something like that."
The 1980 probation department report further stated that FBI records indicated that Moses had been convicted in March 1968, in Oakland, for violations of Penal Code sections 211 and 217, involving robbery and assault with the intent to kill respectively (Pen. Code, § 211; History for former Pen. Code, § 217), was committed to the Youth Authority in October 1968 after a 90-day observation at Vacaville, was paroled in November 1969, and was discharged in May 1971. Moses told the Board in 2007 that he went to the Youth Authority twice, the second time for "assault." When asked about the 1968 conviction, he stated: "Drinking again. So I took my, what was it, my brother-in-law's pistol out of the house, and next thing I know we was drinking and a friend of mine took me back to the house. His car was full of people, and then I asked for another shot of the whiskey, and when I took my hand up there, one of the ones tried to snatch the gun out of my hand and it went off."
From 1971 until his murder of Rhodes, there is no indication that Moses had any other incidents involving law enforcement, and he had no further criminal record.*fn3
Moses's Post-conviction History in Prison
Moses has an exemplary post-conviction history. For the 27 years between his commitment and the 2007 Board hearing, he did not commit a single significant infraction of prison rules. According to Moses, he received only one custodial infraction in 1982, for watching television without headphones.
Prior to the 2008 Board hearing, Forensic Psychologist John T. Rouse prepared a June 2007 psychological evaluation of Moses. Rouse stated that Moses had obtained a pre-GED, but had not completed the requirements for a GED, as he suffered from sleep apnea, which was "a predominant factor in disallowing his ability to succeed academically." While in prison, he had participated in a stress management program, men's violence prevention, and VORG. Moses had worked for approximately 13 years in the prison laundry and received "laudatory" work reports. Rouse also reported that Moses "took full responsibility for his commitment offense in a genuine, non-defensive or minimizing manner," and that "Moses's alcohol abuse was a marginalizing factor in his life of crime. This examiner has the opinion that alcohol diminished his judgment and caused him to be impulsive. However, since his incarceration, he has remained alcohol free and has participated regularly in AA over the course of the past 27 years."
After indicating that Moses had no history of mental disorder, Rouse concluded that "[p]rior to his commitment offense, the most salient risk factor for Mr. Moses's risk of dangerousness was his alcohol abuse and its effects, mainly impulsivity and poor judgment. Subsequent to his 27 years of incarceration, Mr. Moses has demonstrated a sustained level of impulse control and appropriate judgment and decision making, as evidenced by his disciplinary-free behavior and the fact that he has been an active participant in AA and other self-help programs." Rouse was "of the opinion that Mr. Moses presents as a low risk of dangerousness when compared to the average citizen in the community and is still a suitable candidate for parole."
Rouses's report is entirely consistent with the two previous psychological evaluations of Moses, which the Board relied on in 2003 and 2005 to grant parole to Moses, only to see these decisions reversed by the Governor. In 2002, Clinical Psychologist Robert Wagner, Ph.D, reported that Moses stated in an interview that he was intoxicated on the day of the crime, would never drink again, and that Moses "thinks about the crime nearly every day and expressed sincere sorrow for the crime." After reviewing Moses's history and mental status, Wagner concluded that "Moses was not demonstrating a rising level of dangerousness at the time of the crime, and had been arrest free for almost 10 years. His subsequent time in prison has been disciplinary free and violence free. His level of dangerousness has been less than average for this population. It appears that two decades of responsible behavior can be trusted and the internal controls are sufficiently in place to assure a safe return to the community."
The following portion of a psychological report prepared by a Dr. Taylor in 2004 was read at the 2007 hearing: "Mr. Moses has upgraded himself educationally and vocationally despite possible cognitive difficulties, and has held a long-term job while in prison. He has continued to work on self-improvement through various self-help groups. His disciplinary history is exemplary. He acknowledges his responsibility for the crime and appears remorseful. Alcohol appears to have played a part in the crime. He has been involved in substance abuse treatment at length. Continued substance abuse treatment on the outside would be recommended to continue with support group and abstinence. No evidence of psychiatric problems related to risk of dangerousness is noted. For this reason, he is considered to have a low, on a scale of high, medium, low, risk of dangerousness upon release at this time."
At the 2007 Board hearing, Moses was asked about various aspects of his post-commitment activities and perspective. Regarding drinking, Moses said that he had been in AA for 27 years and had maintained his sobriety during that time, that he went to AA "all the time," had "pretty much" worked through all of AA's steps, and "always will go to AA." He said that if he were released, he had a sponsor and a group in Oakland, though he could not remember his sponsor's name. He also stated that he was going to continue with AA "out there," and that he was "never going to drink again, ever."
When asked at the 2007 Board hearing if he had continued to engage in self-help since 2004, Moses stated that he had participated in a men's violence prevention program again "a little later than that." However, his petition brief states that he participated in men's violence prevention and family violence prevention in 2003. Moses stated at the hearing that he continued to attend all VORG meetings, which occurred every two weeks, where he met with and talked with victims. According to Moses, in order to participate, "you ...