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In Re Marshall Lee Field

December 16, 2010


(Santa Clara County Super. Ct. No. 73964)

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

In re Field CA6


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In 1980, Marshall L. Field, Jr. pleaded guilty to the 1979 second-degree murder of Sarah Prewitt, with whom he had been romantically involved. He was sentenced to a term of 15 years to life in prison with the possibility of parole, plus two consecutive years for the personal use of a firearm and one year for a prior prison term for a total of 18 years to life in prison. Field first became eligible for parole in 1991 and since then has had 11 parole suitability hearings, the last in August 2008, just preceding the California Supreme Court's decisions in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), both of which clarified the law in the area of judicial review of parole decisions. At that 2008 hearing, the Board of Parole Hearings (Board) again denied parole, citing in support of its conclusion the gravity of the commitment offense, Field's criminal record and escalating pattern of criminal and violent conduct, his previous failures at probation, an "unstable social history," Field's disciplinary violations while in prison, and his most recent psychological evaluation, which though assessing his risk of dangerousness to the public if released at low to moderate, also cited a 2005 disciplinary violation as an issue of lingering concern about Field's potential threat level and as the factor that increased his risk assessment from low to low to moderate.

Field filed a petition for writ of habeas corpus in the superior court, which was granted in 2009.*fn1 The court concluded that Field had been denied due process because the Board had failed to "articulate a rational nexus between its factual findings and a conclusion" of current dangerousness in accordance with Lawrence. The court remanded the matter to the Board, directing that body to hold a new hearing within 95 days and if the Board were to again deny parole based on the gravity of the commitment offense, to "isolate the parts of [that offense] that qualif[y] for invocation of an unsuitability factor or factors and state the nexus between the factor or factors and the ultimate decision of current dangerousness."

Warden Ben Curry appeals from the order, contending that the Board's parole denial is legally sufficient because it is supported by some evidence in the record that Field is a current risk of danger.*fn2 Like the trial court, we conclude that the Board's decision fails to comply with Lawrence in that it does not specifically articulate a rational nexus between the commitment offense or other static factors cited by the Board and its ultimate conclusion that Field remains a risk of danger to society were he now to be released. On this record, Field's most recent 2005 disciplinary violation might supply the basis of that nexus in that it may reflect that the commitment offense or other historic, static factors remain probative of Field's dangerousness--the ultimate issue in the decision whether to find an inmate suitable for parole. But under the current state of the law, such a conclusion must be articulated by the Board or the Governor in denying parole based on the commitment offense. We accordingly affirm the trial court's order vacating the Board's decision. But we also conclude that the order may exceed the bounds of judicial review in its specific directives. We will thus modify the order on remand, directing the Board to conduct a new hearing in accordance with due process, consistently with the dictates of Lawrence and Shaputis.


I. The Life Crime*fn3

On November 15, 1979, Sarah Prewitt, who was then 20 years old and had been involved with Field in a volatile relationship, drove to her workplace to pick up her paycheck. She was accompanied by a female friend. Field, then 26 years old and on probation, drove up in the parking lot where Prewitt was outside her car. She went inside her workplace for about five minutes during which Field spoke with Prewitt's friend. He threatened the friend and told her that he didn't appreciate her meddling in his affairs and that he was " 'going to win this,' " referring to Prewitt's recent attempt to end their relationship. Prewitt came out of her workplace and spoke with Field. At first, he threatened to kill himself. Prewitt then got into her car to leave but Field asked her to take her keys out of the ignition, which she did. Field then got a shotgun he had under the seat in his car and pointed it at Prewitt, motioning for her to get out of her car. Prewitt ran into the middle of the parking lot, trying to wave down a passing car, but the car kept going. Prewitt then approached Field and said, " 'If you're going to shoot me, go ahead.' " Field shot her in the chest. He shot her again as she fell to the ground. Field approached Prewitt's friend, who had stayed in Prewitt's car, and said, " 'I did it because I love her.' " He got into his car and left the scene, where Prewitt died.

Later that day, Field spoke with police and said that he would turn himself in as soon as his mother and clergyman arrived to accompany him. But officers later received information from Field's family about where he was located. They made contact with him and he surrendered. Field told officers that the gun was still in his truck, of which he consented to a search. He also expressed some hope that Prewitt did not suffer. Prewitt's father later said that Field had previously threatened their family, including his young grandchildren. And both her friend who was present when she died and an aunt told police that Prewitt had previously suffered physical violence at Field's hands.

Field pleaded guilty to second degree murder in violation of section 187 and he admitted to having personally used a firearm within the meaning of section 12022.5 and having served a prior prison term within the meaning of section 667.5, subdivision (b). He was sentenced to 15 years to life in prison plus two years, consecutive, for the use of a firearm and one year for the prior prison term for a total sentence of 18 years to life in prison.

II. Social History

Field was born on October 3, 1953 in San Francisco to an intact family that ran an engraving business. He was diagnosed early on with attention deficit disorder and was placed in special education classes as a child. He also was treated for this condition while in grade school and in high school attended group sessions for children with behavioral and emotional problems. He was put on Ritalin in high school and placed in "educationally handicapped" classes. As a result of this, he felt socially ostracized and personally inadequate and he quit school after the 11th grade. He later obtained his high school diploma in 1976 while in prison for an offense preceding the life crime. His employment history before incarceration includes stints as a printer and as a photo engraver.

Field's brothers are "successful professionals" and his sister is married. His siblings have not been involved in criminality and everyone else in his family is educated and owns their own homes. Field remains in close telephone contact with his family but his parents are now elderly. He "rebuilt those [family] relationships" and all of his family members have indicated that they would help him to reintegrate into the community. He married while incarcerated and has an adult daughter, with whom he maintains periodic telephone contact. He remains married and friendly with his wife but they do not see each other often, perhaps twice per year, and they speak on the phone three or four times per year. He was diagnosed with lung cancer while in prison and had a lung removed. He has also been diagnosed with hepatitis C and he suffers from arthritis. Field admits that he experienced serious drug (PCP, opiates, ethanol, barbiturates) and alcohol dependency for a significant period of time in his younger life and believes that this dependency was a causative factor in his commission of the life crime.

III. Criminal History

Before committing the life crime, Field was arrested for or convicted of driving under the influence (1972); driving under the influence, possession of dangerous drugs (1972); disorderly conduct (1972); driving under the influence (1973); driving under the influence (1973); reckless driving (1974); "under the influence"; assault with intent to kill, kidnapping, burglary (1975); and driving under the influence (1979).*fn4 The 1975 offense involved Field taking a pistol to the high school that his former girlfriend was attending. He went into her class and told her to go outside or he "would blow her brains out." Her teacher tried to intervene and Field pointed the gun at him and threatened him, forcing his ex-girlfriend outside. The school principal attempted to talk to Field but he threatened him with the gun as well and also threatened to harm his ex-girlfriend if he was interfered with. Field attempted to take a young man's car by threatening him with the gun but authorities intervened. One officer fired a round and Field then placed his gun against his ex-girlfriend's chest and pulled the trigger. But the gun misfired and police captured Field. He served time in prison for the offense.

IV. Post-Conviction Disciplinary History

Field received nine CDC 115 disciplinary violations while in prison for the life crime.*fn5 None of the violations involved violence or drugs or alcohol. Four of them were in 2003, and one was in 2005. They are (1) 1984--attempt to bring contraband (construction paper); (2) 1993--verbal statement to manipulate staff; (3) 2001--refusal to return to dorm; (4) 2003--delaying an officer; (5) 2003--refusing direct order; (6) 2003--delaying peace officer; (7) 2003--delaying peace officer; (8) 2003--delaying peace officer; (9) 2005--smuggling contraband.

The four 2003 violations resulted in discussion at Field's 2004 parole hearing, where he was given a four-year denial, and an advisement that he should remain free of disciplinary violations pending his next hearing.*fn6 But as noted by the Board in 2008, despite that advisement, Field received another violation in 2005. This resulted from Field having smuggled two razor blades, which he was allowed to have and to purchase for $1.00, from his workshop area by hiding them in his belt buckle. About this violation, Field explained to a psychologist in 2008 that he was intending to use the razor blades for " 'everyday things' " and he admitted having made a mistake and using bad judgment. He characterized this violation as " 'minor' " and in trying to explain his action said, " 'We are who we are, we do what we do and we live in a world that is wild. Everybody stumbles in this environment. Life isn't perfect and I'm not perfect." Field described all of his 115's "as stemming from 'conflicts' with the system when he attempted to get his needs met in ways that did not reflect standard protocol." And in discussing his disciplinary violations at the 2008 Board hearing, Field pointed out that none of them involved weapons, violence, or substance abuse and that the 2005 violation probably wouldn't be his last as he occasionally stumbles though he does not get out of control by committing violations that are more serious in nature.

In addition to the disciplinary violations, Field also received seven custodial counseling chronos. They were (1) 1983--contraband; (2) 1984--refusal to stand for count; (3) 1987--out of bounds; (4) 1990--trying to manipulate staff; (5) 1993--failing to complete assigned work; (6) 1993--disobeying written orders; (7) 2000--smoking violation.

V. Prison Programming

In 2008, Field was working as a housing unit porter, receiving satisfactory to above average reports. He had vocationally participated in graphic arts, upholstery, small engine repair and sheet metal trade school while in prison. In 2008, he was participating in religious studies and engaged in reading and completing college level small business coursework, maintaining a B average. He was regularly participating in self-help activities, including ongoing Alcoholic Anonymous for many years, and in 2006 he had completed courses in conflicts resolution, anger management, and stress management, receiving laudatory chronos for these latter two. He also completed a 2004 Bible course, and in 2007 a course called Celebrating Recovery, and a spiritual growth course.

VI. Psychological Evaluations

The most recent 2008 psychological evaluation summarized earlier evaluations. Regarding a 1985 evaluation, it noted that Field had expressed remorse for the life crime and suggested that he was " 'demonstrating maturity and increased psychological stability consistent with an eventual finding of parole suitability.' [His] institutional adjustment was 'better than average, with the exception of several CDC115 disciplinary infractions, primarily for misconduct.' " 1990 evaluations noted that Field had then been free of disciplinary violations and was " 'less inclined to defensively argue and resent authority than was previously the case.' " He had accepted " 'total responsibility' " for the life crime and had acknowledged that his past drug use had been " 'out of control.' " A 1991 evaluation noted that Field " 'still does blame others more than he needs to or should about the dynamics of his past' " while also noting his own observation that he had had " 'a problem with authority in the past ...

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