(Contra Costa County Super. Ct. No. 091300-4) Trial Judge: Honorable Brian F. Haynes.
The opinion of the court was delivered by: Pollak, Acting P.J.
CERTIFIED FOR PUBLICATION
In April 1982 petitioner James Powell was convicted of two counts of second degree murder and the use of a deadly weapon and sentenced to 16 years to life in state prison. On May 6, 2009, the Board of Parole Hearings (Board) again determined that petitioner is unsuitable for parole because he poses a present risk of danger to society or a threat to public safety if released. Because we conclude the Board's decision was not supported by "some evidence" we reverse that decision and remand the matter to the Board to conduct a new parole-suitability hearing.
FACTUAL AND PROCEDURAL BACKGROUND
At the time of the commitment offense Powell and his girlfriend, Sherby Williams, had been together for three years.*fn1 Powell describes their romance as a "love/hate" relationship, in which they partied and drank together and he sometimes abused her. They broke up several times, but always got back together. Three days before the commitment offense they had a fight and Williams told Powell "to leave and not come back." Powell assumed that, as before, everything would be resolved in a few days. As he had done previously, he stayed briefly with his aunt. After a few days separation, Powell telephoned Williams to ask what they were going to do that evening. She responded that she and some girlfriends were going to Reno. After work, Powell drank an unspecified, but significant, amount of alcohol, smoked some marijuana, and returned to his aunt's house to sleep.
At approximately 1:30 early Saturday morning, May 16, 1981, Powell awoke and decided to go to Williams's house to drink. Arriving at the house, he noticed that her car was in the driveway, but assumed she had gone to Reno in a friend's vehicle. When he entered the house, he observed that the television and fish tank light were on. Entering the darkened bedroom, he accidentally kicked a baseball bat, awakening a man, Darryl Carson, who was in bed with Williams. The two men struggled for the bat. As they fought, Williams, whom Powell at first did not see, was struck by the bat. When Williams said something, Powell realized she was there, and he intentionally struck her with the bat. Powell continued to fight Carson and hit him "until he hit the wall." Powell then left the house while Williams was crying; Carson was "falling off the nightstand on which he had been sitting." After leaving the crime scene, Powell called the Richmond Police to report a burglary. He then drove to Berkeley and called the Berkeley police, but hung up when he was put on hold. He went to Reno for the weekend. When he returned, his relatives told him that two bodies had been found at Williams's house. Powell walked to the crime scene and was arrested.
Powell was born on March 8, 1950, the third of seven children raised by his natural parents. He graduated from high school in 1968.*fn2 He volunteered for the Marine Corps and served in Vietnam for one year, receiving an honorable discharge in 1970. From 1970 or 1971 until his current incarceration he worked as a forklift operator for a roofing company.
Powell married his second wife, Gwendolyn, shortly after he was incarcerated. His first marriage ended due to his infidelity. He had two children with another woman, Virginia, whom he never married. He is in regular contact with his second wife and her two children, whom he regards as his stepchildren, and with his ailing mother and surviving siblings.
Powell began to drink alcohol at the age of 17. He started drinking heavily when he was discharged from the Marines. Typically he drank one and one-half quarts of rum each week--and sometimes more on the weekends.*fn3 He also occasionally used marijuana and cocaine. On the day of the commitment offense he had been drinking "quite a bit." He had also smoked some marijuana. Nonetheless, he did not feel that he was then under the influence of either alcohol or drugs.
In March 1978, Powell was convicted of petty theft and served 10 days in county jail. In December 1978, he was arrested for carrying a concealed weapon and carrying a loaded firearm in a public place, but those charges were dismissed. In March 1981, he was arrested for assault with a deadly weapon. The victim of that assault was Williams, whom he killed the following May.
Since being incarcerated in 1982, Powell has received one serious rules violation report (for work performance), in January 1985. He also was counseled twice, most recently in 1987--both times for his work performance. None of his in-custody discipline has been for criminal or violent behavior.
Powell's participation in available self-help programs has been exemplary. Since 1988 he has participated in various substance abuse programs, including Alcoholics Anonymous, Narcotics Anonymous, and a substance abuse program. He participated in a Category T Program,*fn4 designed to address domestic violence and anger, until the program was discontinued. He has completed two "Lifer Programs" dealing with stress reduction and anger management, as well as a series of individual psychotherapy sessions. In 1993, the Board recommended individual psychotherapy to explore whether he harbors "any possible antagonism or hatred toward women." The evaluating psychologist concluded: "Mr. Powell's presentation demonstrated convincingly that no such propensity had been involved in the committing offense. In addition, the sessions were deemed very useful in helping Mr. Powell to more fully understand his motivations at the time. They also permitted considerable discussion of issues relating to past excessive alcohol use. During the clinical interview it was again apparent that Mr. Powell has matured admirably and, while he wondered if additional Category X or T programming might be recommended by the Board, such does not seem at all indicated."*fn5 He has also completed numerous other programs including the parole recidivism prevention program, creative conflict resolution, anger management, family relationship education enrichment program, the art of communication, and bible studies. In addition, Powell has upgraded educationally and vocationally. He has earned 32 units towards an Associate of Arts degree and completed vocational certificates in furniture upholstery, the prison industry authority mattress factors, and watch repair. He has work experience as the lead in the prison industries authority upholstery factory, as a clerk for the associate warden, and as a porter.
Since 1989, Board-appointed psychologists have consistently described his risk of future violence as "below average," "significantly below average," and a "low risk" if released into the community. One report, in the course of discussing Powell's history of alcohol abuse, concludes "After years of incarceration Inmate has essentially mastered these problem areas and presents as much lower risk. Were he to be paroled he would . . . very likely continue his present gains."
Powell's most recent psychological evaluation in 2009 gives him two Axis I diagnoses: alcohol abuse, by history and adult antisocial behavior. He carries no Axis II diagnosis.*fn6 His most recent psychological assessment used three different scales to assess his violence potential if released: the psychopathy check list (revised), to assess general psychopathy when compared with other male offenders, the historical-clinical risk management--20, to measure his risk for violent recidivism, and the level of service/case management inventory, to evaluate the general risk of recidivism. On each scale he scored in the low range. Overall, the evaluating psychologists opined that Powell presents "a relatively low risk for violence in the free community." The psychologists recognized that if he were to resume his prior substance abuse, his risk of aggressive or violent behavior would increase, but acknowledged that his ongoing vocational activities with positive evaluations coupled with his ongoing abstinence from drug and alcohol use (as shown by a lack of discipline for substance-abuse related offenses and ongoing negative drug test results) supported Powell's "commitment to sobriety and a clean lifestyle." The evaluators also noted that Powell did not respond to questions impulsively; neither did he avoid questions he was asked or respond glibly or superficially.
As with the consistent evaluations of Powell's low potential for future violence, the many psychological evaluations over the years have agreed that Powell accepts responsibility and is genuinely remorseful for his life crimes. The earliest evaluation in the record, from 1989, states that "Mr. Powell showed remorse when relating the story of the instant offense, and his remorse and understanding of his crime appears to be rooted in his religious faith." The 1990 evaluator commented that he "does not try to avoid responsibility for his crime by blaming his use of alcohol or drugs. In fact he takes responsibility for what he did, and is not resentful for being in prison. . . . [¶] . . . He is candid about the crime, shows remorse, and obviously has done a great deal of thinking about this grievous mistake." The 1992 report discusses Powell's response to psychotherapy: "It was clear that he had been actively involved and actually learned from it. He was enthusiastic about the therapy, and was able to list 2 or 3 specific ways in which he gained psychologically from the program. [I]t was clear that he had gained considerable self-insight." In 1997, the evaluating psychologist described Powell's "demeanor [as] one of a thoughtful man who responsibly does his program in prison. He readily admits to the murders and the tragic consequences for all involved. He discusses his alcohol abuse and immaturity at that time. In prison, Inmate clearly has made a positive life change in coming to grips with himself and is repentant. Not only has he determined to change his life, but over time has shown that he has made a positive change in his behavior, attitude and adjustment." The 1999 evaluation states, "He says that he used to convince himself that since he didn't mean to kill Sherby or Mr. Carson, that the murders were an accident. However, in therapy he was made to realize it was no accident that the two people were murdered. He stated, 'It wasn't right. I wish it never happened. Even if she and I would never be together again.' He added, 'I still think of Sherby today. I still say a prayer for her mother, sister, brother and daughter and for Mr. Carson's family. They didn't deserve it.' " The most recent psychological evaluation in 2009 concludes: "Mr. Powell acknowledged adequate insight into how aspects of his criminal thinking and poor relationship boundaries led to his anger and rage and, ultimately, the life crime. His expressed emotions about the murders of his ex-girlfriend and her new boyfriend appeared affectively based, rather than a superficial, intellectual understanding of such emotions or a more self-focused understanding of how the life crime has affected him." Thus, for more than 20 years psychologists who have assessed Powell have indicated that he is remorseful about his life crime and has developed insight into the circumstances of the crime.*fn7
If paroled, Powell intends to live with his wife in Richmond, California. He has contacted a program, Inside Solutions, for assistance in finding a job. He has offers of support from various family and friends, including promises of general emotional support and assistance with transportation, employment, housing, and finances. In addition, he has vocational certificates in furniture ...