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Hodge v. Carey

April 27, 2010

ARBBIE M. HODGE, PETITIONER,
v.
THOMAS L. CAREY, WARDEN, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Arbbie M. Hodge is a state prisoner proceeding through counsel with a first amended petition for writ of habeas corpus filed pursuant to 28 U.S.C. §2254. Petitioner is currently serving an indeterminate prison term of 16 years to life following his 1979 conviction for second degree murder in Los Angeles County. Here, petitioner does not challenge the constitutionality of that conviction, but rather, the execution of his sentence, and specifically, the February 20, 2004 reversal by Governor Schwarzenegger of the September 25, 2003 decision of the Board of Prison Terms that petitioner was suitable for parole. The pending petition presents a single ground for relief: that the Governor's reversal is unsupported by some evidence in the record in violation petitioner's right to due process of law. Based on a thorough review of the record and applicable law, it is recommended that the petition be granted.

II. BACKGROUND

On the morning of January 14, 1979, sometime after 4:00 a.m., several individuals were involved in a street fight. Petitioner struck the victim, Thurman Allen, in the head with a baseball bat, causing his death.

At his September 15, 2003 hearing, petitioner related the events leading up to the murder as follows. (See Exhibit 13, Subsequent Parole Consideration Hearing, September 25, 2003 at 13-15, 42-48.)*fn1 Petitioner stated that he and his girlfriend, Barbara Hines,*fn2 were inside a Long Beach residence with another woman, Claire Hoff. Hines and Hoff got into a physical altercation inside the residence and exited the house, fighting "from the residence all the way out into the middle of the street." Petitioner heard Hines "hollering" and looked outside where he saw the victim, Thurman Allen, swinging a two foot by two foot window frame which had been converted into a picture frame at Hines. Petitioner called out to Allen causing Allen to turn and approach petitioner. Petitioner reached into the house and grabbed a baseball bat. Petitioner and Allen began fighting. Hoff ran away down the street and Hines ran into the residence. Petitioner struck Allen in the head with the bat and Allen fell to the ground. Petitioner indicated that because they had run away, neither Hoff nor Hines saw him strike Allen with the bat.

Allen was taken to the hospital where he died four days later; petitioner and Hines fled the area and were later apprehended. Petitioner states that he threw the bat across the street, although no bat was recovered. Prior to 1988, petitioner had claimed that he struck Allen with the converted wooden frame which he had wrestled away from Allen.

After rejecting a plea agreement to a manslaughter charge, petitioner proceeded to trial and was convicted by jury of second degree murder with personal use of a dangerous or deadly weapon. He was sentenced to serve 16 years to life in state prison. His minimum eligible parole date passed in either 1988 or 1989.*fn3

On September 25, 2003, the Board of Prison Terms ("Board") conducted petitioner's twelfth subsequent parole suitability hearing and determined for the first time that he would not pose an unreasonable risk of danger to society or a threat to public safety if released, and thus that he was suitable for parole. In a written decision dated February 20, 2004, Governor Schwarzenegger reversed the Board's grant of parole. Petitioner sought habeas corpus relief in the Los Angeles County Superior Court. After concluding in a reasoned decision that no evidence supported the Governor's conclusion that petitioner was unsuitable for parole, the superior court granted the writ, vacated the reversal and reinstated the Board's decision to grant petitioner parole. The California Court of Appeal, Second District, stayed the superior court's order pending appeal. Ultimately, the state appellate court disagreed with the superior court, and reinstated Governor's Schwarzenegger's reversal of the Board's parole grant. Petitioner sought further review in the California Supreme Court; relief was denied on March 1, 2006.

III. LEGAL STANDARD FOR FEDERAL HABEAS CORPUS

An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). This court will look to the last reasoned state court decision to determine whether the law applied to petitioner's due process claim was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. See Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003).

IV. ANALYSIS OF THE DUE PROCESS CLAIM

A. Applicable Federal and State Law

The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A person alleging a due process violation must first demonstrate that he or she was deprived of a protected liberty or property interest, and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky Dep't. of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989); McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002).

A protected liberty interest may arise from either the Due Process Clause itself or from state laws. Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, in and of itself, create a protected liberty interest in receipt of a parole date. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981). Where a state's statutory parole scheme uses mandatory language, however, that state statute "creates a presumption that parole release will be granted" when or unless certain designated findings are made, thereby giving rise to a constitutional liberty interest. McQuillion, 306 F.3d at 901 (quoting Greenholtz v. Inmates of Nebraska Penal, 442 U.S. 1, 12 (1979)). The Ninth Circuit Court of Appeals has held that California state prisoners who have been sentenced to prison with the possibility of parole have a clearly established, constitutionally protected liberty interest in receipt of a parole release date. Irons v. Carey, 505 F.3d 846, 850-51 (9th Cir. 2007) (citing Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 2006)); Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003); McQuillion, 306 F.3d at 903; and Allen, 482 U.S. at 377-78 (quoting Greenholtz, 442 U.S. at 12)).

The full panoply of rights afforded a defendant in a criminal proceeding is not constitutionally mandated in the context of a parole proceeding. See Pedro v. Or. Parole Bd., 825 F.2d 1396, 1398-99 (9th Cir. 1987). The Supreme Court has held that a parole board's procedures are constitutionally adequate if the inmate is given an opportunity to be heard and a decision informing him of the reasons he did not qualify for parole. Greenholtz, 442 U.S. at 16.

Additionally, as a matter of state constitutional law, denial of parole to California inmates must be supported by "some evidence" demonstrating future dangerousness. Hayward v. Marshall, No. 06-55392, slip op. at 34-35 (9th Cir. April 22, 2010) (en banc) (citing In re Rosenkrantz, 59 P.3d 174, 210 (Cal. 2002), In re Lawrence, 190 P.3d 535, 549 (Cal. 2008), and In re Shaputis, 190 P.3d 573, 582 (Cal. 2008)). The federal Due Process Clause requires, in turn, that California comply with its own quantum of evidence requirement. See Hayward v. Marshall, No. 06-55392, (Berzon, J., concurring in part and dissenting in part at 13).

The analysis of whether some evidence supports denial of parole to a California state inmate is framed by the state's statutes and regulations governing parole suitability determinations. See Irons, 505 F.3d at 851. This court "must look to California law to determine the findings that are necessary to deem [a petitioner] unsuitable for parole, and then must review the record to determine whether the state court decision holding that these findings were supported by 'some evidence' [ ] constituted an unreasonable application of the 'some evidence' principle." Id.

Title 15, Section 2402 of the California Code of Regulations sets forth various factors to be considered by the Board in its parole suitability findings for murderers. The regulation is designed to guide the Board's assessment of whether the inmate poses "an unreasonable risk of danger to society if released from prison," and thus whether he or she is suitable for parole. In re Lawrence, 44 Cal.4th 1181, 1214, 1202 (2008). The Board is directed to consider all relevant, reliable information available regarding the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release.

15 Cal. Code Regs. § 2402(b). The regulation also lists several specific circumstances which tend to show suitability or unsuitability for parole. 15 Cal. Code Regs. § 2402(c)-(d). The overriding concern is public safety and the focus is on the inmate's current dangerousness. In re Lawrence, 44 Cal. 4th at 1205. Thus, the proper articulation of the standard of review is not whether some evidence supports the reasonscited for denying parole, but whether some evidence indicates that a parolee's release would unreasonably endanger public safety. In re Shaputis, 44 Cal.4th 1241, 1254 (2008). In other words, there must be some rational nexus between the facts relied upon and the ultimate conclusion that the prisoner continues to be a threat to public safety. In re Lawrence, 44 Cal. 4th at 1227.

B. The Board's Decision

The panel of the Board which presided over petitioner's 2003 parole suitability hearing relied on several factors in finding him to be suitable for parole. The presiding commissioner indicated:

We're finding you suitable for parole and I'll explain our reasons. We have reviewed all information received from the public and relied on the following circumstances in concluding that you would not -- that you will not be an unreasonable risk of danger to society or a threat to public safety and are suitable for parole. While imprisoned, you've enhanced your ability to function within the law upon release through participation in self-help, education programs, vocational programs, and institutional job assignments. You have been in AA, the Violence Prevention Program, VORG, Anger Management, and your work reports have been exceptional. You've done everything that's been asked of you. Because of maturation, growth, greater understanding, and advanced age, you've reduced your probability of recidivism. You have realistic parole plans, which include family support and a residence. You have maintained close family ties while imprisoned via letters, visits, and phone calls. And [you] have recently maintained positive institutional behavior, which includes -- which indicates a significant improvement in self-control. And you do show signs of remorse. You did indicate that you understand the nature and the magnitude of the offense and accepts responsibility for the criminal behavior and has a desire to change towards good citizenship (sic). The psychological evaluation, which is dated June 24th, 2003, by John Rouse, R-O-U-S-E, is positive. In that, under the Assessment of Dangerousness, the doctor basically states that the inmate has less than average -- or rather, I should say, potential for dangerousness of being less than an average inmate. In addition, the Correctional Counselor, dated 6/11/03, by initial E. Lee, L double E, indicates a degree of threat as low. The psychologist evaluation also indicates that the Board would foresee that this inmate should be (indiscernible) to factors of his parole rather than any mental issue -- mental health issues. He has not -- he has no diagnosis or (indiscernible) pathology -- psychopathology, which was related to his life crime. He has never been diagnosed as having a significant mental disorder, nor has he made any complaints of a mental disorder. We do indicate you have a limited history of violent type behavior and the life crime appears to have been situationally related... The following [are] conditions of parole: Do not use/possess alcoholic beverages. Submit to alcohol testing. Submit to anti-narcotic testing. Submit to THC testing and participate in a substance abuse program, such as AA and NA. These special conditions are being implied since the inmate has admitted being a heroin [addict] at one time and also [to] having an alcohol problem at one time. Mr. Hodge, I got pretty rough with you in regards to the crime and what -- the statements you've made. We went back and read a lot of reports. And the basic -- the basis of this whole -- this whole situation is that a baseball bat, although it is not mentioned in the POR and was not mentioned, as you say in court, was mentioned by witnesses in the initial police report. The picture that we're talking about was a picture frame that the victim, Mr. Allen, took out of (indiscernible) house, Ms. Hoff's house, after dropping off boxes of marijuana for her to sell, apparently, to get her husband out of jail. He has this picture under his arm as he walked into the street. There is no doubt in my mind that the altercation occurred between the two women out in the street and the injuries were a lot more severe than we thought. I mean, we're talking about one lady who was stabbed in the shoulder and the back, who needed stitches. And the other one had a lamp thrown on her head and wound up having stitches on her head. But primarily, Mr. Allen, whether he intended to or didn't intend to, did have a picture under his arm. The picture was somewhat destroyed during the altercation, which would mean to me it was more than just dropped. Which it could have been used to defend himself or to maybe attack somebody. Maybe the bat hit. There is no doubt in my mind neither that the bat was, in fact, the weapon used to strike the victim. You've been in -- you've been down for 24 years and there's no doubt in my mind also that very possibly you might forget some of this story. You have to live with it 24 hours a day, seven days a week. You did indicate, and there is no doubt in my mind, that the bat was thrown over the fence and then you said it was the picture thrown over the fence. The picture was, in fact, found thrown over a fence with the (indiscernible). And we're not talking about a picture frame as I might have thought. We're talking about, probably a painting in a frame. It talks about the painting being partially removed from the frame. Regardless, our quandary, is, if we denied you parole today, what would we ask you to do? Remain disciplinary free for another year? You've done that for 24 years. I can't think of a single thing to ask you to do if we deny you for parole, except more time. I think you've done enough, 24 years. That does conclude the reading of the decision.

(Exhibit 13, Subsequent Parole Consideration Hearing, September 25, 2003 at 59-63.)

C. The Governor's Reversal

In his written review dated February 20, 2004, Governor Schwarzenegger likewise noted the positive factors for petitioner's release:

Mr. Hodge has been incarcerated now for 25 years, and he has served his time quite well. He has been free of any serious discipline action for his entire prison period. Mr. Hodge also has earned his GED and upgraded himself vocationally by becoming proficient in dry-cleaning, tailoring and laundry. He has maintained and advanced these skills through his steady work in the Prison Industry Authority. He has availed himself of self-help and therapy programs, including intermittently attending Alcohol Anonymous and Narcotics Anonymous. There is some indication in the record that Mr. Hodge additionally participated in Anger Management and the Victim/Offender Reconciliation Group. He has received favorable psychological, work, and counseling evaluations. I commend Mr. Hodge for bettering himself and enhancing his ability to function within the law upon release. His prison conduct demonstrates his gained maturity, responsibility and self-control. (Exhibit 14, Indeterminate Sentence Parole Release Review, February 20, 2004 at 1-2.)

Ultimately, however, the Governor determined that petitioner was not suitable for parole. He began by summarizing petitioner's criminal history:

Mr. Hodge's criminal conduct began when he was a child in Ohio. Beginning at age 14, he was found responsible for several theft-related crimes and spent time in and out of a boys detention home and on probation in Ohio. As an adult, Mr. Hodge was arrested more than 25 times and convicted more than 10 for mostly theft-related crimes. From age 19 to 38, Mr. Hodge was on and off probation and in and out of county jails in Ohio. When he beat Mr. Allen to death, he was on probation in Ohio and had absconded from that state. Mr. Hodge had no significant record of violence or assaulting others at the time.

(Ex. 14, Indeterminate Sentence Parole Release Review, February 20, 2004 at 1.) The Governor went on to describe how petitioner's pre-prison history painted a picture very different from that of his in-prison conduct:

In addition to his many criminal entanglements, Mr. Hodge admits to considerable drug abuse for approximately 10 years, during which time he was addicted to heroin and overdosed twice. He also admits to being unemployed for much of his life and to supporting himself and his drug habits by gambling and stealing. According to various psychological reports, Mr. Hodge asserts that he comes from a large family consisting of more than 20 half-siblings, and he has somewhere between five and seven children resulting from multiple relationships. Although he has not maintained direct contact with many family members, he has maintained ties with several siblings and cousins and has established other relationships via letters. As for his parole plans, he has a confirmed housing offer from the Salvation Army, which may also assist him with employment counseling. But Mr. Hodge does not have a job offer or even a solid employment plan. In 2001, and again in 2002, the Board denied parole to him partly because of his lacking employment plans. I recognize that Mr. Hodge is 63 years old- and statistically has a reduced probability of recidivism due to his age- but he needs to have a solid plan for supporting himself. Mr. Hodge had no documented employment record when he entered prison, and he stated at his 2003 parole hearing that he is not expecting any social-security or other financial support upon release. Mr. Hodge is proficient in dry-cleaning, laundry and tailoring- and the record before me indicates he is physically capable of working in these fields. He is assigned to and has been working in the Prison Industry Authority laundry since October 1997. A recent Life Prisoner Evaluation mentions Mr. Hodge may plan to contact the Employment Development Department upon being paroled. This is something- but it is not enough. Mr. Hodge was unemployed and living unstably when he killed Mr. Allen. Without a way to provide for himself, the odds that he will slip back into the only lifestyle he knows outside of prison- crime, drugs and gambling- are increased. Since Mr. Hodge's lifestyle played a role in Mr. Allen's murder, if he were to return to his old ways, the public would be at risk.

Mr. Hodge committed a serious, violent crime. He charged Mr. Allen- a man who had nothing more than a picture frame in his hand at the time- with a baseball bat and then used it to brutally abuse him. Mr. Hodge hit Mr. Allen two times in the head, hard enough to knock him to the ground and ultimately kill him. While understand the picture frame was possibly a converted window frame and was quite large, Mr. Hodge's reason for hitting Mr. Allen- let alone doing so with deadly force- does not make sense. He claims that he saw Mr. Allen swinging the frame and feared that Mr. Allen was going to hit his girlfriend with it. Even if this were true, we are talking about a frame described by Mr. Hodge at his 2003 hearing as being wooden and two or three feet in size. Whaling lethally on Mr. Allen with a baseball bat was hardly an appropriate response. Mr. Hodge's act was not one of chivalry to protect his girlfriend, it was senseless, brutal murder.

Mr. Hodge over the years has recited different versions of what actually happened in the street the morning he attacked Mr. Allen. He pled not guilty to the murder charge, and he denied at trial that he knew anything about a baseball bat. He now admits to using a baseball bat during the attack. This is progress. But when Mr. Hodge was asked by the Board at his 2003 parole hearing why he did not testify truthfully at trial about the murder weapon, Mr. Hodge summed it up as "a misunderstanding." Mr. Hodge's "misunderstanding" continued for nearly 10 years- since it was not until 1988 when he first admitted to using a bat. Moreover, when the Board questioned Mr. Hodge about his believability, given the dramatic change in his story since trial, he responded by saying "[y]you can believe it or not." Mr. Hodge continues his attempts to evade responsibility and to explain away or dismiss his previous lies.

Moreover, I would be remiss not to note that in 1998, an evaluator used "sociopath" to describe Mr. Hodge. Also Mr. Hodge admitted at this 2003 hearing that he has not participated in Alcoholics Anonymous or Narcotics Anonymous since 2001. Notably, psychological reports in the record suggest that Mr. Hodge may be unpredictable if he uses alcohol or drugs.

The 2003 psychological assessment of Mr. Hodge made a one-sentence conclusion that he accepts culpability for his crime. I note that, in addition to telling psychological staff and the Board at his parole hearings that he takes responsibility for killing Mr. Allen, Mr. Hodge in 1996 wrote an apology letter intended for the victim's family. In his less-than two-page letter, he acknowledged his regret, said he was sorry for his actions and emphasized his hope for forgiveness by the family. I question the evaluator's one-sentence finding- and Mr. Hodge's sincerity when he says that he fully accepts, understands, and is sorry for this murder. As I discussed above, Mr. Hodge has given multiple versions of what happened the day Mr. Allen was fatally abused. His credibility is shaky, at best. Aside from his own statements, I see insufficient evidence in the record to support a conclusion that Mr. Hodge has really accepted full responsibility for what he did. In 1999, when Mr. Hodge was asked by a psychologist whether he had participated in the Victim/Offender Reconciliation Group, Mr. Hodge said, "that's for people with violent problems. I'm not violent." When the psychologist reminded Mr. Hodge that his crime was certainly one of violence, he said, "well the crime was yeah, but they didn't believe my story that I hit somebody just in a fight." Likewise, in a different writing, Mr. Hodge scribed another eight pages to "put the nature of [his] offense in a better perspective and to show that the degree of [his] guilt was blown out of proportion..." This "continuation" - as Mr. Hodge called it is not dated but notes within it an earlier writing dated April 1995. It illustrates Mr. Hodge's minimization of his criminal conduct, and it clearly was written either shortly before or after the 1996 letter to the Allen family. Given the record before me, I simply am unsatisfied that Mr. Hodge has accepted full responsibility for his crime. I also am unconvinced that he considers what he did -attacking and killing a man - as serious as it is. On this factor alone, I could conclude that Mr. Hodge would pose a risk of danger if released at this time.

Mr. Hodge committed an atrocious crime, which followed years of unremitting criminal behavior and instability. The Long Beach Police Department opposes his parole, calling the murder merciless and a blatant disregard for human life. The Department further emphasized that Mr. Hodge was on probation at the time he committed his crime. The Los Angeles District Attorney's Office also opposes parole for Mr. Hodge, opining that he is developing the final version of his story and needs to take full responsibility for his crime. That office also referenced his "horrendous" criminal history and lacking parole plans.

Mr. Hodge was 39 years old when he committed this crime- and he has come a long way since then. He should be proud of his progress. But Mr. Hodge has failed to benefit from society's previous attempts to correct his criminality. And sadly, I am not satisfied that this 63-year-old man has demonstrated that his institutional gains are sufficiently established to assure that his success within prison will transfer outside of prison. After carefully considering each of the factors the Board is required to consider, I believe Mr. Hodge would pose an unreasonable risk to public safety if paroled at this time. Accordingly, I REVERSE the Board of Prison Terms' decision to parole Mr. Hodge.

(Exhibit 14, Indeterminate Sentence Parole Release Review, February 20, 2004 at 2-4.)

D. Superior Court Grant of Habeas Corpus

As set forth above, the Los Angeles County Superior Court granted petitioner's application for writ of habeas corpus after concluding that no evidence supported the Governor's determination that petitioner was unsuitable for parole:

The Governor is constitutionally authorized to make an "independent decision" as to parole suitability. (In re Rosenkrantz (2002) 29 Cal. App.4th 1299, see Cal. Code Regs., tit. 15, §2402.) However, the Governor's decision must be supported by a "modicum of evidence." (Id. at 676.) Here there is no evidence to support the Governor's conclusion that Petitioner is unsuitable for parole.

The Governor concluded Petitioner was unsuitable for parole based upon the gravity of the commitment offense, his failure to take responsibility for the crime, his past criminal history, a serious drug abuse history, and Petitioner's lack of employment plans.

The record reflects Petitioner was inside of a dwelling where a violent physical altercation occurred between two other occupants, one of which was Petitioner's girlfriend. The combatants then carried the fight outside and the victim, who was walking across the street, sought to intervene. Someone yelled and Petitioner came out of the house with a baseball bat. Petitioner confronted the victim and struck him twice in the head with the bat. Petitioner fled and the victim died four days later from his injuries. Thus, there is no evidence in the record that the circumstances of the commitment offense were "especially heinous, atrocious, or cruel." (Cal. Code Regs., tit. 15, §2402 (c)(1).)

The record also reflects that Petitioner had a significant criminal history prior to the commitment offense. However, the majority of Petitioner's prior convictions are property related offenses. There is no evidence he has a previous record of violence. (Cal. Code Regs., tit. 15, §2402(c)(2).) Likewise, the record established that Petitioner had a serious drug abuse history prior to his incarceration for the commitment offense. However, there is no evidence Petitioner has continued to abuse substances over the last twenty-four years of incarceration and a prisoner's prior addiction is not an appropriate consideration in determining parole suitability. (In re Smith (2003) 109 Cal.App.4th 489, 505.)

The Governor also concluded Petitioner lacks realistic employment plans. (Cal. Code Regs., tit. 15, §2402(d)(8).) However, the record reflects Petitioner has gained marketable skills since his incarceration and at least one of the residential programs Petitioner has been invited to participate in offers assistance with vocational training and job placement. Therefore, there is no evidence Petitioner lacks realistic parole plans.

Lastly, the Governor cited inconsistencies in Petitioner's version of the events of the life crime over the years as evidence Petitioner has not fully accepted responsibility for the crime, and therefore lacks remorse. (Cal. Code Regs., tit. 15, §2402(d)(3).) An inmate may not be required to admit guilt in order to be found suitable for parole. (Penal Code §5011(b).) However, if guilt is uncontested, as it is here, the Governor may properly consider Petitioner's attitude toward the crime and his lack of remorse and understanding of the nature and magnitude of the offense. (In re McClendon (2003) 113 Cal. App. 4th 315, 322.) When Petitioner was interviewed in 1979 for the pre-sentence report, he denied any involvement in the commitment offense. He apparently did not even admit to having used a baseball bat as a weapon until 1988. However the record reflects the Board questioned Petitioner extensively about the circumstances of the commitment offense and Petitioner's version of it during the most recent suitability hearing. Petitioner admitted to the Board that he lied in court when he said he did not have a baseball bat. Further, during the hearing he admitted to striking the victim in the head with the bat. Therefore, while it is true Petitioner has at times been, admittedly untruthful, the Governor's conclusions are based upon statements made at the least fifteen years ago, and at the most, twenty-four. That coupled with a positive psychological evaluation, a record free of serious misconduct, and participation in self-help programming, contradicts the Governor's conclusion. There is no evidence in the record that Petitioner does not currently understand the nature and magnitude of the commitment offense. (Id.) Therefore, the Governor is ordered to vacate the February 20, 2004 decision, and the Board's decision to grant parole is reinstated. The Governor, in his discretion, may issue a new decision pursuant to his authority under Article V, §8(b) of the California Constitution and Penal Code §3041.2. (Capistran supra, at 1307.) (Exhibit 15, BH 002650 opinion at 1-3 (footnotes omitted).)

E. California Court of Appeal's Reversal

In finding that some evidence supported the Governor's reversal of petitioner's grant of parole, the California Court of Appeal, Second District, identified and examined six distinct factors or circumstances relating to parole suitability, concluding that each one constituted some evidence that he was unsuitable for parole. The factors or circumstances examined include (1) gravity of the offense; (2) minimization of the offense; (3) lack of remorse; (4) parole plans; (5) unstable lifestyle; and (6) opposition by the Long Beach and Los Angeles Police Departments.

1. Gravity of the Offense

A prisoner's commitment offense tends to show an inmate's unsuitability for parole where committed in "an especially heinous, atrocious or cruel manner." 15 Cal. Code Regs. § 2402(c)(1). The facts of a commitment offense can alone be a sufficient basis for denying parole where they are especially heinous or particularly egregious. In re Rosenkrantz, 29 Cal.4th 616, 682 (2002); see also Biggs v. Terhune, 334 F.3d 910, 913-16 (9th Cir. 2003); Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1126 (9th Cir. 2006); Irons v. Carey, 505 F.3d 846, 852-53 (9th Cir. 2007). The Ninth Circuit has cautioned in dicta, however, that repeated denial based solely on an inmate's commitment offense "will at some point violate due process" where there is evidence of rehabilitation and the prisoner has served the minimum term on his sentence. See Irons, 505 F.3d at 853-54.

Under section 2402(c)(1), the circumstances that support a finding that a prisoner committed an offense in an especially heinous or cruel manner include that (A) multiple victims were attacked, injured or killed; (B) the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (C) the victim was abused, defiled or mutilated; (D) the offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering; and (E) the motive for the crime is inexplicable or very trivial in relation to the offense." 15 Cal. Code Regs. §2402 (c)(1)(A)-(E). The relevant inquiry is an individualized one: "whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense." In re Lawrence, 44 Cal.4th at 1221. The passage of time and attendant changes in the inmate's psychological or mental attitude are relevant considerations. Id.

Here, the state appellate court found there was some evidence that petitioner was unsuitable for parole based on the gravity of his commitment offense because the offense showed an exceptionally callous disregard for human suffering and because the motive was trivial relative to the offense. See Cal. Code Regs. tit. 15 §2402(c)(1)(D)-(E). These terms have been applied by the California courts as follows:

A prisoner's commitment offense may constitute a circumstance tending to show that a prisoner is presently too dangerous to be found suitable for parole, but the denial of parole may be predicated on a prisoner's commitment offense only where the Board can "point to factors beyond the minimum elements of the crime for which the inmate was committed" that demonstrate the inmate will, at the time of the suitability hearing, present a danger to society if released. [In re] Dannenberg, 34 Cal.4th [1061] at 1071, 23 Cal.Rptr.3d 417, 104 P.3d 783 (Cal.2005). Factors beyond the minimum elements of the crime include, inter alia, that... "[t]he offense was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering," and that "[t]he motive for the crime is inexplicable or very trivial in relation to the offense." Cal.Code Regs., tit. 15 §2402(c)(1)(D)-(E)."

Irons, 505 F.3d at 851-51.

In California, "[s]econd degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional elements-- i.e., willfulness, premeditation, and deliberation- that would support a conviction of first degree murder." People v. Nieto Benitez, 4 Cal.4th 91, 102 (1992). "Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." People v. Mattison, 4 Cal.3d 177, 182 (1971) citing Cal. Penal Code § 188.

Under California law: all second degree murders by definition involve some callousnessi.e., lack of emotion or sympathy, emotional insensitivity, indifference to the feelings and sufferings of others. [Citation.] As noted, however, parole is the rule, rather than the exception, and a conviction for second degree murder does not automatically render one unsuitable... Therefore, to demonstrate "an exceptionally callous disregard for human suffering" (§ 2402, subd. (C)(1)(D)), the offense in question must have been committed in a more aggravated or violent manner than that ordinarily shown in the commission for second degree murder.

In re Scott, 119 Cal.App.4th 871, 891 (1st Dist. 2004). Such aggravated circumstances may include torture, severe trauma, as where "[d]eath resulted from severe trauma inflicted with deadly intensity; e.g., beating, clubbing, stabbing, strangulation, suffocation, burning, multiple wounds inflicted with a weapon not resulting in immediate death or actions calculated to induce terror in the victim" (Id. at 892), "rehearsing the murder, execution of a sleeping victim, stalking," (see In re Weider, 145 Cal.App.4th 570, 589 (6th Dist. 2006)), or where there is evidence that the defendant "acted with cold, calculated, dispassion; or... gratuitously increased or unnecessarily prolonged [the victim's] pain and suffering" (In re Smith, 114 Cal.App.4th 343, 367 (6th Dist. 2003)).

Similarly, a finding of "triviality" sufficient to justify the denial of parole must also relate to an inmate's current dangerousness:

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).) The governing statute also states that the Board shall set a release date "unless it determines that the gravity of the current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting." (Pen. Code, § 3041, subd. (b).) This language means "a more lengthy period of incarceration" is called for where the gravity of the offense or offenses of the prisoner in question is more indicative of a danger to the public if the prisoner is released than would ordinarily be the case. The reference in Board regulations to motives that are "very trivial in relationship to the offense" therefore requires comparisons; to fit the regulatory description, the motive must be materially less significant (or more "trivial") than those which conventionally drive people to commit the offense in question, and therefore more indicative of a risk of danger to society if the prisoner is released than is ordinarily presented.

In re Scott, 119 Cal.App.4th at 893.

Here, the court of appeal specifically held, with respect to the Governor's consideration of petitioner's commitment offense:

[E]ven if force was necessary to protect Hines, nothing in the record demonstrates Hodge was required to resort to deadly force and the fact Hodge struck Allen twice in the head with the baseball bat demonstrates his disregard for human suffering. Further, the Governor could conclude Hodge's motive in killing Allen, i.e., preventing Allen's intervention in the fight between Hoff and Hines, was trivial relative to the offense.

Additionally, even accepting Hodge's version of Allen's murder as true, the Governor properly could conclude Hodge demonstrated callous disregard for human suffering by failing to stop the fight in the front yard, despite Hoff's visible injuries. Instead, Hodge escalated the situation by obtaining a baseball bat, which he used to trike Allen twice in the head, causing his death. Dannenberg, supra, specifically held multiple blows to the head may render a murder egregious based on extreme and substantial violence, thereby exceeding the minimum conduct necessary for a conviction of the life offense. (In re Dannenberg, supra, 34 Cal.4th at p. 1095.)

Finally, under Penal Code section 3041, subdivision (b), the timing and gravity of current or past offenses is a consideration in parole determinations. Here, rather than complete his probation obligation in Ohio, Hodge absconded to California where he engaged in a variety of criminal behavior which continued even after the murder of Allen. Also, Hodge disposed of the murder weapon and fled with Hines to San Diego, postponing his eventual arrest in this case. Flight from the scene of the crime, which is viewed as conduct "affirming [the] violent act," can be considered a factor in determining whether an [offense] is more egregious than the statutory minimum necessary for a conviction. (See In re Rosenkrantz, supra, 29 Cal.4th at p. 683.)

In sum, review of the record reveals some evidence supports the Governor's conclusion that Hodge's offense was committed with an exceptionally callous disregard for human suffering and ...


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