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In Re Manuel Cass

December 7, 2010


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

In re Cass CA4/1


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Diego County)

Petition for Writ of Habeas Corpus. Relief granted.

In 1988, Manuel Cass killed Anthony White. Cass pleaded guilty to second degree murder and admitted using a firearm, and was sentenced to 17 years to life. Cass, now 41 years old, has been incarcerated for over 22 years. After denying parole at several hearings over the past decade, the Board of Parole Hearings (BPH) found him suitable for parole at his 2008 suitability hearing when it concluded he did not pose an unreasonable risk of danger to society if released. However, Governor Arnold Schwarzenegger (the Governor) reversed the BPH's decision, finding Cass posed an unreasonable risk of danger to society if released.

Cass petitioned the trial court for a writ of habeas corpus, but the court denied the writ, concluding the Governor's decision was supported by some evidence. Cass then petitioned this court for a writ of habeas corpus. We issued an order to show cause, the People filed a return, and Cass filed a traverse. Cass asserts the Governor's decision to deny parole violated due process because its conclusion that he currently posed an unreasonable risk of danger was based on immutable past facts and was contrary to the only reliable evidence that he was not currently dangerous. We conclude the Governor's decision was not supported by some evidence, pursuant to the guidance provided by In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), and we therefore grant the relief requested in Cass's petition.



A. The Commitment Offense

Around 7:00 a.m. on March 23, 1988, Anthony White (age 17) was walking from his home to a bus stop when Cass (riding in a car driven by his then-girlfriend) stopped near White. Cass (then age 18) emerged from the car, confronted White, and shot him several times. Cass then got back into the car and left the scene.

B. Cass's Performance in Prison

Cass has remained discipline free during his 22 years of incarceration. In addition to this unblemished discipline record, he furthered his vocational training through numerous programs, became involved in numerous self-help programs, and consistently received praise from prison staff.

C. Professional Evaluations

Cass's evaluations from various correctional and mental health professionals over the years consistently have been favorable and have concluded his potential for violence was low. As early as 1992, a staff psychologist stated his "involvement in criminal activity and the eventual murder appears to have come about due to opportunity and a vulnerability to peer influence, [and Cass] appears sincerely remorseful," and that his behavior "would continue to be appropriate in a less controlled setting." Three years later, another psychologist stated he had no psychiatric disorders and concurred in the 1992 assessment. In 1998, a psychologist stated Cass "takes full responsibility for his crime and realizes the impact on the victim's family[,] . . . has gained considerable insight [and] [h]is feelings of remorse are clear." The psychologist concluded his potential for violence is "less than the average inmate [and] [i]n a less structured environment it is likely that he would be able to maintain the gains and build on them given the opportunity." In 2001, the psychiatrist evaluating him stated that, were Cass released, his "risk for violence would be considered minimally higher than the average citizen due to the nature of the crime, and his involvement in drug sales. Past significant risk factors of lack of responsibility, being naive, and immature, and having a lack of direction and goal setting abilities, all have improved." However, the psychiatrist also clarified the statement that Cass's risk of violence was "minimally higher than the average citizen" was a purely statistical assessment based on his commitment offense, and he "has made progress to the point where he would not present a significant risk as long as he follows through with his parole plans and has good support from his family, obtains employment and does not become involved in criminal activity."

In a 2004 report, apparently prepared in connection with an unsuccessful parole hearing, another psychiatrist stated Cass's "insight and judgment are good," he has "take[n] full responsibility for the offense and does not appear to rationalize or minimize his role [and] fully express[es] remorse," and concluded his risk for violence if released on parole was "on par with the average citizen." In the 2008 psychological report prepared in connection with his most recent parole hearing, another psychologist reported Cass received the best possible classification score and he "took responsibility for his actions," "did not minimize his behaviors and appears to have developed insight into the causative factors," and "did not blame his actions on his friends or his criminal lifestyle." The psychologist assessed Cass's potential for violence by employing two separate empirically based assessment guides--the Psychopathy Checklist-Revised (PCL-R) and the History-Clinical-Risk-20 (HCR-20). Cass's PCL-R score placed him the "low range" for potential violence, and his score on the HCR-20 also placed him the "low risk category" of recidivism. The psychologist concluded Cass "poses a low likelihood to become involved in a violent offense if released into the free community." The psychologist concluded he "is to be commended for his positive and prosocial programming since his incarceration. He has received a significant number of laudatory chrono's for his positive behavior including a letter from the warden praising his positive behavior. His parole plans remain feasible and comprehensive. . . . He has taken full responsibility for the instant offense. The current risk assessment suggested [Cass] represents a low risk of recidivism if released to the community."

D. Other Suitability Factors

Cass had no history of prior violence and his only criminal record was a juvenile court true finding of selling drugs. He has developed marketable skills, and has realistic parole plans and available support from ...

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