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In Re Charles Cox

January 24, 2011

IN RE CHARLES COX, ON HABEAS CORPUS.


(Super.Ct.No. 09F01238)

The opinion of the court was delivered by: Scotland, J.*fn1

In re Cox

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 April 1986, while intoxicated and mentally unstable due to 10 years of methamphetamine use, 30-year-old Charles Cox shot his 32-year-old half brother, Robert Mason, at least five times with a .22-caliber rifle. Mason did not survive the encounter.

Cox confronted Mason with the rifle because he believed that Mason had taken and was concealing another rifle Cox's father had left Cox when the father died. Cox also believed that Mason was stealing money from their mother and having sex with their teenage adopted sister, and that, when asked about this misconduct, Mason had become violent with their mother, pushing her backward over a chair. According to Cox, when Mason claimed not to know where the rifle was and taunted Cox to shoot him, Cox pulled the trigger in an outburst of "helpless anger" that had been "suppressed for years due to denial and fear of his brother."

Cox pled guilty to second degree murder and was sentenced to an indeterminate term of 15 years to life in state prison for the murder, plus two years for using a firearm in committing the crime. He was received by the Department of Corrections and Rehabilitation on May 17, 1990, and his minimum eligible parole date was August 15, 1997.

At Cox's eighth parole hearing in April 2008, the Board of Parole Hearings (the Board) found that he was "suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison." The Governor reversed the Board's decision. In the Governor's view, Cox was not suitable for parole due to the "especially atrocious" nature of the commitment offense; his "history of mental health issues and substance abuse"; certain statements Cox made in a 2003 life prisoner evaluation, which indicated that he possessed a "negative" attitude towards "continued self-help and therapy"; and unspecified "evidence that [Cox] may lack insight into his prior criminal activity."

Cox filed a petition for writ of habeas corpus in the superior court, challenging the Governor's decision. The petition asserted the Governor set forth no evidence supporting his finding that Cox posed a current danger to public safety. In granting the petition, the court found that the Governor's decision was not supported by some evidence of current dangerousness and that the Governor failed to articulate a rational nexus between the evidence in the record upon which he relied and his ultimate determination that Cox posed a current danger to society. Thus, the court ordered that the Board's decision be reinstated and that the Board set a parole release date.

On appeal, the People contend the superior court's order must be reversed because the Governor's decision was supported by some evidence that Cox's release would pose a current threat to public safety. In the alternative, the People argue that, if we conclude the Governor's decision is not supported by some evidence, the remedy is to remand the matter to the Governor for a new review consistent with applicable law.

For reasons that follow, we shall affirm the superior court's order.

BACKGROUND

Prior to taking his brother's life, Cox had been drinking whiskey, smoking marijuana, and using methamphetamine every day for roughly 10 years. He typically finished a fifth of whiskey every two days and used a quarter gram of methamphetamine each week. About two weeks before the murder, Cox decided to stop using methamphetamine and was experiencing "crisis periods" in which the symptoms of withdrawal rendered him mentally unstable and caused violent episodes. He unsuccessfully attempted to lessen these withdrawal symptoms with alcohol. A few days before the murder, Cox sought treatment for his drug and alcohol abuse.

The night of the murder, Cox left the bar where he had been drinking all day and went to the apartment of his brother, Mason, to retrieve a rifle that his father had left Cox upon the father's death. When Mason explained that he did not have the rifle, Cox went back to the bar, apparently to summon the necessary courage to further confront Mason about the missing rifle. Cox then went to his mother's house, got a different rifle, which was loaded, and returned to Mason's apartment. Cox walked in, immediately pointed the rifle at Mason, who was seated in a chair playing with a model car, and demanded, "I want to know where my fucking gun is right now." Mason said he did not know. The brothers argued for several minutes. During this time, Mason remained in the chair, continued playing with the model car, and told Cox to "go ahead and shoot."

Cox shot Mason once in the head and at least four times in the chest because Cox was angry and scared. According to Cox, he had been tormented by Mason over the years; Mason was violent to their mother and had been stealing from her to support his drug abuse; and Mason was supplying drugs to their teenage adopted sister and having sex with her. Thus, in Cox's words, "that's why I say I took the law into my own hands." When Mason claimed not to know where the rifle was and taunted Cox to shoot him, Cox's "helpless anger at his brother, suppressed for years due to denial and fear of his brother, rose to the surface" and resulted in Mason's death.

Cox was arrested without incident and charged with the murder. In September 1986, after two clinical psychologists diagnosed him with "psychotic depression," Cox was found incompetent to stand trial. He was committed to Atascadero State Hospital until he was restored to competence in October 1989. Cox pled guilty to second degree murder in April 1990.

The probation report prepared for the sentencing hearing revealed that Cox had no prior arrests, criminal convictions, or juvenile adjudications. His statement to the probation officer revealed the animus harbored against Mason due to, among other things, Mason's physical assault on their mother and sexual abuse of their adopted sister. While Cox explained he had been "drinking very heavily," brought the rifle "to scare his brother into telling him where his rifle was," and did not remember pulling the trigger, he also expressed remorse for having killed his brother, stating, "I still hate myself."

Psychological evaluations during his nearly 20 years in prison indicated Cox had been consistently remorseful for killing Mason. The most recent psychological evaluation, conducted in 2008 by Richard Starrett, Ph.D., indicates that Cox "accepts responsibility for the crime" and "showed clear signs of sorrow" when he "talked about the terrible nature of the crime, the impact it had on the family, and how it directly impacted his own daughter."

This evaluation also indicated Cox appreciated the role Cox's alcohol and drug abuse played in his brother's murder: "He stated his use of substances impaired his judgment and affected his behavior," and "he probably would not have committed the crime if he had not been high and 'coming down' from substances," but that "this is not an excuse." The evaluation also reflected that Cox demonstrated insight into the underlying causes of the murder: "When asked about why this crime turned violent, [Cox] stated he kept all his feelings bottled up inside of him," and "he blamed his brother for many of his problems." The report states that, at the time of the murder, in addition to being heavily intoxicated and suffering withdrawal symptoms from coming off of methamphetamine, Cox was in a state of "depression and paranoia" and harbored "resentment about the abuse he suffered at the hands of his brother." When asked about the changes Cox had made in his life to prevent this from happening again, Cox stated he "no longer uses alcohol or drugs," "has learned to deal with his anger in an appropriate manner," and "continues to work on self-improvement daily."

At the time of the 2008 psychological evaluation, Cox had been involved in Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) for 21 years. He began participating in self-help programs when he entered Atascadero State Hospital and was in the mental health services delivery system (MHSDS), receiving "much self-help and one-on-one attention" and completing the following therapy and self-help groups: AA 12-Step; NA Path Group; Alternatives to Violence Project; Assertiveness Training; Depression Management; Medication Management; Anger Management; Stress Management; Substance Abuse; Occupational Therapy; One-to-One Therapy; Breaking Barriers, How to do Life on the Streets; Skills Building; Family History; Arts & Crafts; Walk & Talk; and Dance Therapy. Because he had "no serious mental health problems at the current time," had "been off all medications for three years," and was "considered stable," Cox no longer required the MHSDS level of care.

The 2008 psychological evaluation also revealed Cox's prison misconduct was limited to a single CDC Form 115 rules violation in 1996, which did not involve substance abuse, violent or threatening behavior, or sexual misconduct. Although Cox, who had "graduated from high school and completed approximately two years of college while in the community," had "not earned any educational upgrades while incarcerated," he had "vocations as a janitor and an auto mechanic," had "been ...


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