The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Kash Register, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Relief Under 28 U.S.C. § 2254. Register is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Deuel Vocational Institution.
Respondent has answered, and Register, through counsel, has replied.*fn1
I. BACKGROUND/PRIOR PROCEEDINGS
In December 1979, following a jury trial, Register was convicted in the Los Angeles County Superior Court of Murder in the First Degree (Cal. Penal Code § 187) in the commission of a robbery (Cal. Penal Code § 190.2(a)(17)(A)), with a use of fire-arm enhancement (Cal. Penal Code § 12022.5). Register was initially sentenced to a prison term of 25 years to life without possibility of parole. The trial court later struck the robbery special circumstances allegation and sentenced Register to an aggregate prison term of 27 years to life. Register does not challenge his conviction or sentence in this proceeding.
In May 2007 Register made his seventh parole-suitability appearance before the California Board of Prison Terms ("Board"). After determining that Register would pose an unreasonable risk of danger to society or threat to public safety if released from prison, the Board found Register unsuitable for parole. Parole was denied for a period of two years. Register filed a timely petition for habeas relief in the Los Angeles County Superior Court, which denied Register relief in an unpublished, reasoned decision. Registers's subsequent petition to the California Court of Appeal, Second Appellate District, was summarily denied without opinion or citation to authority. The California Supreme Court summarily denied review without opinion or citation to authority on May 21, 2008. Register timely filed his Petition for relief in this Court on June 4, 2008.
As summarized by the Board, the facts underlying the commitment offense were:
In the early afternoon hours of April 6th, a 78-year-old victim, Jack Sasson, S-A-S-S-O-N, left his apartment to go to his automobile which was parked in the carport at 1937 Shenandoah in Los Angeles. That inmate Register approached the victim, who was in his automobile, and demanded money. Mr. Register then fired an unknown number of shots into the victim, estimated by witnesses as three shots, taking the victim's wallet with one hundred dollars, and leaving the scene.
While leaving the scene, two witnesses were across the street. After leaving the scene, Mr. Register returned a few seconds later, firing an unknown number of shots into the victim, and then fleeing. One witness in pursuit of him for about three blocks, until Mr. Register turned on the witness, Eliot Singleton, pointing a handgun at the witness who then ended his pursuit subsequently losing sight of Mr. Register.
Witness Singleton testified that he was working as a painter across the street when he heard the initial shots. Then looking out the window, quote, "I saw a man. He was being hit like somebody was trying to take something from him. And then I seen the man being thrown on the ground. Mr. Register was seen right on the outside of the car reaching inside the car. I seen him sort of like trying to reach inside his jacket for something, and then I seen him throw the man on the ground, pull him out of the car and then throw him on the ground. They were tussling, and then he reached inside his pocket and he got something. I think it was a wallet. And he took off and ran. He hit him. He went inside the man's clothes trying to get something out of the man's pocket. I think it was his wallet, a dark wallet. I seen him with the gun pointed at me. I followed this man for a couple of blocks and this man stopped and pointed the gun at me," unquote. Singleton also testified that Mr. Register was wearing a reddish-purple-maroon-colored shirt.
Witness, Brenda Anderson, testified that she heard the initial shots as she was about to get into her shower, across the street from the scene of the present offense. "I heard shots and I looked out my window. I see somebody running in between some apartments, run back and shoot two more times. But I seen, I heard the shots. He was firing at a blue car, and he took off across the street. I think I know him. I seen him before. I went to school with him. I identified him as the one I saw running from the scene."
The victim was transported to the Los Angeles New Hospital where he subsequently identified Mr. Register from a photo line-up pointing to Mr. Register's photograph. He was unable to speak because of injuries. The victim died on April 27th, 1979.
Witness Anderson who identified Mr. Register, as having gone to Hamilton High School with him, also identified Mr. Register from a photo lineup, as did witness, Eliot Singleton.
A search warrant was obtained, and on April 10th, Mr. Register was arrested as he was about to enter his vehicle in the front of his residence. A maroon shirt matching the description given by the two witnesses was recovered. Neither the gun nor the wallet was recovered.
An autopsy was performed on April 28th. The coroner's report indicating that the cause of death was multiple gunshot wounds to the abdomen, chest and left ribs.*fn2
II. GROUNDS RAISED/DEFENSES
In his Petition, which incorporates the Petition for Review filed with the California Supreme Court, Register raises a single ground cognizable by this Court in this proceeding: the determination that he posed an unreasonable risk of danger to society or threat to public safety if released from prison was unsupported by some evidence.*fn3 Respondent does not assert any affirmative defense.*fn4
In finding Register unsuitable for parole, the Board held:
PRESIDING COMMISSIONER KUBOCHI: We're back on record, and it's 1:05 p.m., in the Parole Suitability Hearing of Kash Register, and I'm going to announce the decision of the Panel and state the reasons. And before doing so, I'd like to state for Mr. Kash and the record, our careful review of Title 15, Section 2281. And that entire section is entitled, Determination of Suitability. Subdivision A states that regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if, in the judgment of the Panel, the prisoner will pose an unreasonable risk of danger to society if released from prison.
Subdivision B of Section 2281 states or describes information that may be considered by the Panel. And it says that all relevant, reliable information available to the Panel shall be considered for determination of suitability for parole. And there is an express sentence that states that circumstances which taken alone, may not firmly establish unsuitability for parole, but may contribute to a pattern which results in a finding of unsuitability.
Subdivision C lists factors or circumstances tending to show unsuitability. And there is an express statement that says the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the Panel. And it goes on to list six factors or six circumstances. And there are various subdivisions within each one.
And Subdivision D is factors or circumstances tending to show suitability. That subdivision also has the similar language of Subdivision C that says that if the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the Panel.
And it lists circumstances tending to indicate suitability include no juvenile record, stable social history, signs of remorse, motivation for the crime.
Number five does not apply because it is for the battered partner syndrome. Number six is lack of criminal history. Seven is age. Eight is understanding of plans for the future. And nine is institutional behavior.
And I took particular note, Mr. Register, because a lot of emphasis has been placed and a lot of discussion has been made of the accomplishments that you have made in prison, the certification for marketable skills. And in listening to your presentation, you place heavy reliance on the marketable skills. However, in regard to institutional behavior, there's two factors to consider. One, is that it is but one of eight factors listed in Subdivision D. And, two, your institutional behavior includes 12 115s, two of which involve violence and weapons, and two that were defying direct orders, and four involved miscounts which, in this Panel's evaluation, is the same as disobeying orders. So, there's six for disobeying orders and two for weapons or violence out of the 12 you've had. You've also had 17 128s. And those have to be considered in regard to the institutional behavior.
And at this time, we are finding you not suitable for parole. And find that you would pose an unreasonable risk of danger to society or threat to public safety if released from prison. In that assessing all of the factors in Section 2281, the factors of unsuitability far outweigh those factors of suitability. And I will address many of those in specifics.
In this particular case, this murder was carried out in an especially cruel and callous manner, in that the victim was 78 years old and had a hearing impairment. And of significant importance was the fact that this victim was in the safety of his apartment in the area of his carport where everybody would like to feel that they are safe from predators and predatory crimes, especially crimes of violence.
And all he did was get into his car in his carport, and he was confronted by you. And he was shot twice. He was robbed of his wallet. There were eyewitnesses to that scene. And he was particularly vulnerable in view of the fact that he was doing what anybody ought to do, and that is move about in the area of their home and residence, feeling safe and secure. And he was robbed at gunpoint. He was clearly unarmed, 78, hearing impaired, as I've indicated.
And there are further aggravating facts concerning this because you were not satisfied when you shot him two times, when there was clearly opportunities to cease in life-threatening acts, you carne back and shot him two more times after leaving the scene, according to the eyewitnesses. And this is a particularly troubling crime in that it demonstrates that it was committed by somebody that had no moral compass at all. And we find that the motivation for the murder was inexplicable and very trivial in relation to the offense.
In regard to your prior record, you had a juvenile record going back to 14 years old, and it involved a switchblade knife, petty theft, grand theft person, and theft of the wheels from tire rims. And that you were placed back onto juvenile probation in May of 1978, and this crime happened in the early part of 1979, April of 1979, less than a year after your fourth contact with the juvenile authorities.
We find that there was an escalating pattern of criminal conduct, and that you had failed previous grants of juvenile probation. And your Probation Report documents that probation made intense efforts to try to redirect the path that you were on. You failed to profit from society's attempts to correct your criminality through that juvenile probation.
We looked at your institutional behavior, and we note the vocational skills that you've obtained, which is a positive. Your marketable skills in several different vocations, one of those include the masonry that you wish to pursue if released from prison.
However, again, we look at the 115s. And in regard to that, it's of particular note that the murder occurred in 1979, and your last 115 was in 1995, and that spanned a period of 16 years of serious offences.
That is, all 115s committed in prison are serious because they show a disregard for the rules and with the administration of prison. And in addition to those 115s over that 16-year period, you had 17 additional 128s. And I believe ...