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In Re Charles Cox

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 working in auto mechanics for the last three years," and "reportedly always received excellent work performance ratings."

This evaluation described Cox's parole plans as "exceptional." He would live with his cousin in Sacramento, a general contractor who had offered Cox employment in the construction business. Cox qualified "for veteran's benefits," had "contacted the Delancey Street Program for possible support," and had "support through his church, which will provide for self-help, AA, and NA."

Dr. Starrett reviewed previous psychological evaluations, including a 2006 evaluation conducted by Cynthia Glines, Psy.D., and a 2001 evaluation conducted by Erich Rueschenberg, Ph.D., both of whom opined that Cox posed a low risk for violent recidivism.

Based on all of the foregoing, Dr. Starrett concluded Cox's "level of psychopathy is in the low range," his "overall propensity for violence is in the low range when compared to similar inmates," and his "general recidivism risk is rated in the low range." (Emphasis in original.)

Dr. Starrett explained: "Cox is not a psychopath, which research indicates decreases his violence potential and chance of recidivism upon release. [His] only elevations on this scale were due to his crime and associated characteristics at the time. [¶] [His] overall propensity for future violence is in the low range when compared to similar inmates. [His] elevations due to his past history include his involvement in unstable relationships, his history of substance abuse, having a mental illness at the time of the crime, and to a lesser extent, not establishing a career and his age at the time. These variables increase his violence potential. The variables that decrease his violence [potential] historically are not having a history of violence or prior arrests, not being a psychopath, not having early maladjustment problems, not meeting the diagnostic criteria for a personality disorder, and having no prior failures on supervision. The variables that decrease his violence potential [due to his current level of clinical insight] are [his] acceptance of responsibility for the crime as stated, his appropriate level of insight, his good response to treatment, not having a negative attitude or any active mental health symptoms at the current time, and not being impulsive. This individual is not likely a risk management problem in the community. His parole plans seem feasible, appropriate, and well developed. He has handled destabilizers, compliance, and stress well in the institution. He appears to have a lot of personal support. All of these variables decrease [Cox's] violence potential."

As to Cox's general risk of recidivism, Dr. Starrett stated: "The variables that have increased his risk are his controlling case and prior substance problems. The variables that decrease his risk outweigh these variables, which include having no prior violence potential or history of arrests, and never having received any CDC-115 disciplinaries for substance abuse, violent and/or threatening behavior, or sexual misconduct throughout his entire incarceration. He has a high school degree and a couple years of college. He has vocations and an excellent work record. He has been very active in self-help and has demonstrated full compliance with his treatment program while incarcerated. He has been active in substance abuse treatment for 21 years. He is active in his religion and practices meditation on a regular basis. Additional factors to consider are [his] age, the stability of his mental health, and his excellent parole plans."

At his eighth parole hearing, in April 2008, Cox acknowledged the facts of the commitment offense as detailed above and described his violent actions on the night of the murder as "[s]enseless." When he was asked what he had learned in the Alternatives to Violence Project, Cox replied: "[T]here's always another choice to violence. If you just step back for a second or two, or whatever it takes, a minute, and try to find a different way, and usually you will. Try to look at people and not try to change who they are, just accept them for who they are." Cox also said he was going to AA twice a month, which was as often as the prison allowed, and had been sober for 22 years.

The Board reviewed Dr. Starrett's 2008 evaluation of Cox, and asked Cox questions about it. A Board member observed that Cox "visibly got upset" when describing how his life had been negatively affected by his methamphetamine use, and that Cox's face "lit up" when he described his ongoing efforts at counseling other inmates to get off of drugs in a "one on one" setting "[o]ut there on the yard." Another Board member said he was "impressed" by Cox's efforts. Cox stated that helping other inmates with their drug problems helped him "deal with all the pain" he felt for having killed his brother.

The Board also reviewed Cox's parole plans and his relapse prevention plan, which would involve living with his cousin in Sacramento, working in construction, securing veteran's benefits, and utilizing self-help, AA, and NA programs offered by his church and the Delancey Street Program.

The Board found that Cox 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. After describing the "vicious" details of the murder, the Governor acknowledged much of the evidence favoring the Board's decision. Nevertheless, the Governor concluded Cox was not suitable for parole due to the "especially atrocious" nature of the murder, Cox's "history of mental health issues and substance abuse," certain statements Cox made in a 2003 life prisoner evaluation which indicated to the Governor 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."

We will describe the Governor's decision in greater detail in the discussion that follows.

DISCUSSION

I

We need not recite in detail the rules of law that have been repeatedly articulated by the California Supreme Court opinions and Court of Appeal opinions cited favorably by the Supreme Court regarding a decision by the Governor to reverse a Board finding that an inmate serving indeterminate terms for murder is suitable for parole. (See e.g., In re Lawrence (2008) 44 Cal.4th 1181 (hereafter Lawrence); In re Moses (2010) 182 Cal.App.4th 1279; In re Lee (2006) 143 Cal.App.4th 1400.) Suffice it to say:

One year prior to the inmate's minimum eligible parole release date, a determination must be made to grant or deny parole. A parole release date must be set unless "the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed . . . ." (Pen. Code, § 3041, subd. (b); Lawrence, supra, 44 Cal.4th at p. 1204.)

"Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the [Governor reviewing a decision by the Board] the prisoner will pose an unreasonable risk of danger to society if released from prison." (Cal. Code Regs., tit. 15, § 2402, subd. (a); further section references are to title 15 of the California Code of Regulations unless otherwise specified.)

Factors tending to show suitability for release on parole are (1) the absence of a juvenile record, (2) a history of reasonably stable social relationships with others, (3) tangible signs of remorse, (4) the commission of the crime resulted from significant stress, especially if the stress had built over a long period of time, (5) battered woman syndrome, (6) a lack of a history of violent crime, (7) increased age, which reduces the probability of recidivism, (8) marketable skills and reasonable plans for the future, and (9) responsible institutional behavior. (§ 2402, subd. (d).)

Factors tending to demonstrate unsuitability for release on parole include the inmate's (1) commission of the offense in an especially heinous, atrocious, or cruel manner, (2) previous history of violence; (3) unstable social history; (4) prior sadistic sexual offenses, (5) lengthy history of mental problems, and (6) serious misconduct in prison or jail. (§ 2402, subd. (c).)

The importance of those factors is left to the discretion of the Governor (§ 2402, subds. (c) & (d)), and judicial review of the decision is limited. (Lawrence, supra, 44 Cal.4th at p. 1204.) "'As long as the Governor's decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court's review is limited to ascertaining whether there is some evidence in the record that supports the Governor's decision.' [Citation.]" (Ibid; italics omitted.)

The test is "current dangerousness" at the time of the parole decision, i.e., whether the facts of the commitment offense, the inmate's efforts toward rehabilitation, his attitude concerning the commission of the crime, and the psychological assessments in the record provide some evidence that the inmate remains a danger to public safety if released on parole. (Lawrence, supra, 44 Cal.4th at pp. 1212-1213.) In finding a prisoner unsuitable for parole, the Governor must articulate a "rational nexus between [applicable] factors and the necessary basis for the ultimate decision--the determination of current dangerousness." (Id. at p. 1210; see also In re Palermo (2009) 171 Cal.App.4th 1096, 1106-1108.)

II

All relevant factors indicating suitability for release on parole apply to Cox: he had no juvenile record and no history of violent crime; he had consistently shown remorse and taken responsibility for Mason's death; he had reasonably stable social relationships with others, except for Mason; the murder resulted from significant stress that had built up over a long period of time; he had evolved from an unstable 30-year-old man with a substance abuse problem in 1986 into a sober and mentally stable 55-year-old man, which reduced the probability of recidivism; his institutional behavior had been responsible; and he had marketable skills and reasonable plans for the future. (§ 2402, subd. (d)(1)-(4),

(6)-(9).) In addition, psychological evaluations opined that he was a low risk for violent recidivism.

Nevertheless, the Governor found those markers of suitability for parole were outweighed by the "especially atrocious" nature of the commitment offense; Cox's history of substance abuse and mental health problems; statements that Cox made in a 2003 life prisoner evaluation, which indicated to the Governor that Cox had a "negative" attitude towards "continued self-help and therapy"; and unspecified evidence Cox "may lack insight into his prior criminal activity."

The nature of the commitment offense can indicate unsuitability for parole where the offense was committed "in an especially heinous, atrocious, or cruel manner" (§ 2402, subd. (c)(1)); but this factor "can negate suitability only if circumstances of the crime reliably established by evidence in the record rationally indicate that the offender will present an unreasonable public safety risk if released from prison," keeping in mind that "the predictive value of the commitment offense may be very questionable after a long period of time." (In re Scott (2005) 133 Cal.App.4th 573, 595; fn. and citation omitted.)

The Governor found the second degree murder committed by Cox was "especially atrocious" because Cox entered Mason's apartment armed with a rifle, with multiple people present, and shot Mason several times in the head and chest while he "sat defenseless in a chair." The Governor explained: Cox "had several opportunities to avoid the life offense"; he could have chosen not to return to Mason's apartment with a rifle and could have chosen not to fire it several times at his brother. The Governor further found Cox's choosing to fire the rifle with other persons present showed "extreme recklessness." The Governor also concluded there was evidence of premeditation, "on some level," because Cox "sought a firearm as soon as he learned that his was no longer at [Mason's] home." In addition, the Governor relied on the "extremely trivial" nature of Cox's "apparent motive," which the Governor described as "revenge for a lost gun and car stereo speakers." And, in the Governor's view, the fact that Cox did not check Mason's condition following the murder indicated "an exceptionally callous disregard for human life and suffering."

However, as we have noted, the issue is not simply "whether an inmate's crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor." (Lawrence, supra, 44 Cal.4th at p. 1221, original italics; In re Palermo, supra, 171 Cal.App.4th at pp. 1106-1108.)

The Governor found that the facts of the commitment offense were probative to the issue of current dangerousness because (1) the murder was committed largely due to Cox's history of substance abuse and mental health problems, and (2) statements Cox made to a correctional counselor in 2003, and a lack of documented self-help participation, show that Cox still presents a danger to the public.

The Governor explained: "[Cox] told the probation officer that he drank a fifth of whiskey every two nights and that he had been drinking on the night of the life offense. [He] also admitted to the use of methamphetamine, marijuana, cocaine and valium. But when asked about substance abuse therapy in prison, [Cox] told his 2003 correctional counselor, 'I never went . . . I don't like the AA groups here.' Given his history of substance abuse, and given that alcohol was involved in the life offense, continued regular participation in substance abuse therapy and securing a substance abuse sponsor will be essential to his success on parole."

While acknowledging that the most recent 2008 psychological evaluation stated that Cox has been "stable without medication for over three years now," the Governor expressed concern about Cox's "lack of documented self-help and therapy in this regard, especially in light of the lengthy period of mental incompetence and the bouts of depression he has experienced over the years." The Governor found particularly troubling the fact Cox told the 2003 correctional counselor "he is unwilling to be involved in therapy groups and said, 'I find that if I repeat a lot of groups, they don't help me. I've already taken therapy groups over and over again. I don't have the energy.'"

As we will explain, the aforesaid evidence does not constitute some evidence of current dangerousness because it is outdated and contradicted by Cox's subsequent conduct and more recent evaluations.

With respect to Cox's mental health problems, the psychological evaluation in 2008 stated that Cox "has responded well to treatment"; he "does not have a negative attitude or any active mental health symptoms"; he "has been off all medications for several years now"; and he "has been stable for a long time."

With respect to Cox's substance abuse, this evaluation stated Cox "has fully embraced the substance abuse treatment philosophy while incarcerated," has "contacted the Delancey Street Program for possible support" upon his release, and has "support through his church, which will provide for self-help, AA, and NA."

At the parole hearing, Cox stated he did not currently have the "negative" attitude towards "continued self-help and therapy" that troubled the Governor. After acknowledging the negative impact that drugs and alcohol have had on his life, Cox explained to the Board that he was going to AA twice a month and that he had been sober for 22 years. He also described his efforts at counseling other inmates to get off of drugs in a "one on one" setting "[o]ut there in the yard" and "impressed" the Board by the sense of pride he displayed when describing these efforts. In addition to the long list of self-help programs he completed during his two decades in prison, Cox participated in the Alternatives to Violence Project in 2007 and provided an insightful response when asked what he learned from that program.

In light of this evidence, the statements that Cox made to his correctional counselor in 2003 do not support a finding he currently possessed a negative attitude toward self-help and substance abuse treatment.

With respect to Cox's statement concerning an eight-month gap in AA attendance during 2003, the correctional counselor used an ellipsis to omit some of Cox's words, and it is unknown what was omitted. And the Governor did not provide the full quotation, which explained the reason that Cox decided to take a break from attending AA meetings: "I never went . . . I don't like the AA groups here. It's not anonymous. What you say ends up on the yard." (Italics indicate the omitted portion of the quote.) The Governor also omitted Cox's explanation of this statement contained in his 2006 life prisoner evaluation: "'I must have believed that then, 'cause I wasn't going, but I don't know why I felt that way. I don't have any secrets. That was a silly thing to say. I think I was a pretty mixed up guy.'" Cox also explained he was "'too depressed'" to regularly attend AA meetings between April and December of 2003, but "his Vocational Auto activities brought him out of his depressive state" and "enabl[ed] him to return to AA." This explanation is supported by the record, which shows that Cox regularly attended AA meetings since 2003. Indeed, Cox's most recent psychological evaluations revealed he currently had a positive attitude toward AA attendance, stating in his 2006 evaluation that "'Of all the groups I've gone to, AA is the most important one.'" Aside from this brief hiatus in 2003, Cox participated in the program for two decades.

The Governor also cited a statement in the 2003 life prisoner evaluation in which the evaluator noted there was "no documentation indicating that [Cox] has attended any other groups since . . . December of 2001"; Cox was "unwilling to be involved in therapy groups"; and Cox stated: "'I find that if repeat a lot of groups, they don't help me. I've already taken therapy groups over and over and over. I don't have the energy.'" However, this omits an important portion of the evaluator's statement, i.e., "Cox feels that he has made psychiatric improvements, stating, 'I really do understand why it happened and how it happened. I used to hold it all in and now if I'm mad, you'll know it.'" Moreover, these statements were made by Cox in 2003, during a period of depression, and do not indicate his current attitude towards self-help programs.

The 2006 evaluation chronicled much of Cox's self-help and therapy activities: "Through the years, Cox has participated in, and completed the following groups: AA 12-Step, Assertiveness Training, Depression Management, Medication Management, Anger Management, Occupational Therapy, One-to-One Therapy, Breaking Barriers, How to do Life on the Streets, Skills Building, Family History, Arts & Crafts, NA Path Group, (4 weeks) Substance Abuse, Stress Management, Walk & Talk and Dance Therapy."

The 2008 evaluation stated: "[Cox] has been involved in AA and NA for about 21 years now. He has been in the MHSDS system for many years, with a prior placement in the Enhanced Outpatient Program (EOP) level of care. During his time in this system, [he] has received much self-help and one-on-one attention. He has been monitored carefully within the program. [He] stated he first started participating in self-help when he entered the Atascadero State Hospital." This evaluation also explained that Cox had "been off all medications for three years and [was] considered stable."

Thus, because the 2003 life prisoner evaluation is outdated and contradicted by Cox's later conduct and more recent evaluations, it fails to provide some evidence that Cox remains a danger to society. (See Lawrence, supra, 44 Cal.4th at p. 1224 ["reliance upon outdated psychological reports--clearly contradicted by [the inmate's] successful participation in years of intensive therapy, a long series of reports declaring petitioner to be free of psychological problems and no longer a threat to public safety, and [the inmate's] own insight into her participation in this crime--does not supply some evidence justifying the Governor's conclusion that [the inmate] continues to pose a threat to public safety"].)

The Governor also noted the 2007 Board panel remarked that Cox "has not sufficiently participated in beneficial self-help and therapy programs." However, as the superior court pointed out, the record contained only the panel's decision and omitted 68 pages of the hearing. Moreover, the decision stated: "[A]s far as what programming you've been doing, you again have been do[i]ng some positive programming. . . . [Y]our participation in the stress and management and there's quite a number of things that you've been doing with the therapy as well in that, and obviously your AA participation. . . . [d]ocumentation is a big factor--you know--and again, it does show that you've been involved in that and I'm sure you have. We don't question it, but you have to--and it has to be down. All right? We have to have some documentation as to what exactly you're doing. . . . But if you're doing all of it then that's great." (Italics added.)

Thus, the 2007 Board panel did not question Cox's participation in beneficial self-help and substance abuse programs, but simply was concerned about a lack of documentation, prompting Cox to respond: "I'm not a very good bookkeeper."

Finally, the Governor relied on "evidence that [Cox] may lack insight into his prior criminal activity." This appears to be yet another reference to the 2003 life prisoner evaluation in which the evaluator opined that Cox "could continue to gain insight into his own behaviors and gain access to his suppressed emotions through a resumption of sincere participation in therapeutic and self-help groups." Again, this evaluation was outdated and contradicted by the 2008 psychological evaluation, which stated that Cox's level of insight is "appropriate." "[Cox] readily acknowledged the role alcohol and drugs played in the controlling case. Substances clearly impaired his judgment, but he does not use this as an excuse. [Cox] had reported experiencing the frustration of years of bottled up resentment towards his brother, who had reportedly been abusive to him, and towards his mother. [Cox] described experiencing symptoms of depression and paranoia at the time of the crime. . . . [Cox] has apparently spent a considerable amount of time attempting to understand the underlying causes and influential factors in the controlling case. He has made attempts to remediate these issues. It is unlikely that a requirement for further exploration of the instant offense will produce more significant behavioral changes of a positive or prosocial nature in the inmate."

Thus, the record does not support the Governor's conclusion that Cox lacks insight into the commitment offense. And Cox's past abuse of alcohol and drugs "does not constitute some evidence that [he] might start using [alcohol and] drugs and become violent again, and therefore that he currently poses an unreasonable risk of danger without further treatment. Indeed, if [an inmate's] past use of [alcohol and] drugs did invariably establish [the inmate's] unsuitability, then the Governor could deny parole for the rest of [the inmate's] life based on this immutable factor, without regard to or consideration of subsequent circumstances and evidence indicating that he has no current desire for drugs and that there is little current likelihood of drug relapse, let alone a return to violent conduct as a result of it." (In re Smith (2003) 114 Cal.App.4th 343, 372.)

Likewise, Cox's past mental health problems do not constitute some evidence that he might suffer a relapse into depression and paranoia and, therefore, that he currently posed an unreasonable risk of danger to the public. Cox was currently stable without medication and had been so for several years. The record does not support a conclusion that he was likely to relapse, let alone commit another violent crime because of it. Indeed, despite 10 years of substance abuse and mental health problems, he did not act violently toward anyone except his brother, who had abused him as a child, and who had become violent with their mother and sexually abused their adopted teenage sister. And Cox had not acted violently toward anyone during his entire period of incarceration. (See In re Smith, supra, 114 Cal.App.4th at p. 369.)

In sum, there was no evidence that Cox posed a current danger to society if released on parole.

III

We now turn to the appropriate remedy. The People assert that we must remand the matter to the Governor so he may conduct "a new review without restriction on the evidence that may be considered or the decision that may be reached." However, it has now become apparent that, when a court finds a Governor erred in reversing the Board's finding that an inmate is suitable for parole, the Supreme Court has concluded the remedy is to reinstate the Board's decision. (See Lawrence, supra, 44 Cal.4th at pp. 1201, 1229; In re Moses, supra, 182 Cal.App.4th at pp. 1313-1315; In re Lee, supra, 143 Cal.App.4th at pp. 1414-1415.) This is what the superior court did in this case.

DISPOSITION

The superior court's order granting Cox's petition for writ of habeas corpus and reinstating the Board's finding that Cox was suitable for parole is affirmed. Having served its purpose to preserve our appellate jurisdiction, the stay of the superior court's order is vacated.

We concur: RAYE, P. J. HULL, J.


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