(Super. Ct. No. WHC0000894)
The opinion of the court was delivered by: Nicholson , Acting P.J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 the course of a home invasion robbery, Michael Jay Loveless (defendant) shot Robert DeRungs in the head, killing him in front of DeRungs's 14-year-old son. Defendant entered a negotiated plea of guilty to second degree murder in exchange for a sentence of 15 years to life in state prison. On the 22nd anniversary of the murder, the Board of Parole Hearings (the Board) found defendant unsuitable for parole and issued a two-year denial. The superior court granted defendant's petition for a writ of habeas corpus, finding there was no evidence to support the Board's denial of parole, and ordering the Board to conduct a "new hearing within 30 days of the finality of this decision and to find defendant suitable for parole, unless new evidence of his conduct and/or change in mental state subsequent to the 2008 parole hearing is introduced and is sufficient to support a finding that he currently poses an unreasonable risk of danger to society if released on parole." (Original italics.) The Warden appeals that decision. We conclude there was some evidence to support the Board's decision. Accordingly, we reverse the trial court's order vacating the Board's decision and direct the trial court to issue a new order denying defendant's petition for writ of habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
In January 1986, when defendant was 23 years old, he and two friends, Robert Allen and George Layton, heard that Robert DeRungs (victim) had "large sums of money" in his house. Defendant and his friends planned to rob the victim's home, made numerous trips to survey the property and plan the robbery. They took assigned roles, disguised their appearance with theatrical makeup and armed themselves with guns.
At approximately 10:00 p.m., defendant and Allen knocked on the door to the home and the victim answered. They made him lie down on the floor. Allen searched the home, found the victim's 14-year-old son asleep in his bedroom, and brought him to the room with his father. Defendant was standing over the victim, holding a gun on him. The gun defendant was aiming at the victim was loaded, the hammer was cocked and his finger was on the trigger. They made the son lie on the floor next to his father and Allen began to tie up the victim. Then, defendant shot the victim in back of the head. Defendant started apologizing, saying it was an accident and that the gun had slipped. As the victim lay dying on the floor, they asked the son to direct them to the money. The son answered that if there was any, it would be in his father's wallet. Allen went through the home again while defendant tied up the son. Allen then took the victim's wallet and told defendant he should kill the victim's son as he was a witness. Allen and defendant did not shoot the son and left the home, dividing the $110 taken from the victim's wallet between them. Defendant claimed that on the night of the murder he was a heavy drinker and had consumed six to twelve cans of beer and a few shots of bourbon. He also claimed that he had been using marijuana and methamphetamine. Defendant pled guilty to second degree murder and was sentenced to 15 years to life in state prison.
On January 31, 2008, defendant came up for a parole hearing. The Board found the offense was committed with an "exceptionally callous disregard for human suffering" and the motive was robbery. The Board found defendant lacked insight into and remorse for his offense, had engaged in insufficient efforts at self-help and had inadequate parole plans. The Board found defendant was not credible, and his demeanor and behavior at the hearing demonstrated his frustration and agitation. Accordingly, the Board concluded defendant was not suitable for parole and would pose an unreasonable risk of danger to society or threat to public safety if released from prison.
During the previous two years, the Board found, the defendant had "done absolutely no self-help" other than what had been specifically ordered by the Board at his prior parole hearing. Defendant had stopped participating in Alcoholics Anonymous (AA) and Narcotics Anonymous (NA), because he had "reprioritized" his life. The Board found, "[w]hen you kill a man because you're under the influence of alcohol, it [alcohol counseling] had always better be the number one priority. We believe you only stepped back into AA and NA because the Board told you to. You didn't go the extra mile and take stress management, anger management. . . . [¶] . . . You didn't do any self-help by reading books or doing book reports. You didn't put yourself on a wait list for VORG [Victim Offender Reconciliation Group]."
As to the commitment offense, the Board noted it was carried out "in a manner which demonstrated exceptionally callous disregard for human suffering," multiple victims were attacked and a 14-year-old boy had to watch defendant murder his father. The Board was not convinced defendant had "any empathy close to coming to terms with what that meant."
The Board also noted the positives in defendant's record. He did not have a juvenile record and did not have a serious or violent background. He had a good work history and letters of staff support. Defendant had been active in his church, earned his GED and college credits, and his psychiatric evaluation was favorable. His disciplinary record was good and he had received the lowest classification placement score he could. He had one non-violent disciplinary incident in 1999 in which he was found with dangerous contraband, specifically "four inmate manufactured screwdrivers." Defendant explained he used the tools to repair fans and radios and the items had passed previous searches, then the prison policies changed and they were considered contraband. The Board noted defendant's explanation was "more minimizing or mitigating than anything else. That kind of equipment . . . is never allowed in an institution by an inmate."
The Board found defendant's parole release plan was insufficient. It commended his acceptance into transitional housing, but noted the lack of verification that he would have assistance paying the monthly cost associated with that housing. It also noted he had not taken sufficient steps to become gainfully employed. It disbelieved the assertion he was going to work in a used car dealership washing windows.
The Board also noted defendant's body language demonstrated his frustration and agitation during the proceedings. He repeatedly interrupted the commissioners during the proceedings, and they questioned whether he was listening to their reasoning and recommendations. When they were listening to defendant during the hearing, ...