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In Re

March 30, 2011

IN RE KEVIN JACKSON, ON HABEAS CORPUS.


(Los Angeles County Super. Ct. No. A624068 PETITION for writ of habeas corpus. Petition is granted and remanded with instructions.

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

CERTIFIED FOR PUBLICATION

INTRODUCTION

The Board of Parole Hearings (Board) denied petitioner Kevin Jackson parole on December 3, 2008. Jackson challenged that decision by filing a petition for writ of habeas corpus in the California Supreme Court. In response to the petition, the high court ordered respondent, the Secretary of the Department of Corrections and Rehabilitation, to show cause before this court "why the Board of Parole Hearings' decision to deny petitioner parole on December 3, 2008 did not violate Penal Code section 5011, subdivision (b), and California Code of Regulations, title 15, section 2236, by relying, either directly or indirectly, on petitioner's refusal to admit guilt as a factor demonstrating unsuitability for parole."*fn1 This court subsequently ordered respondent to show cause why Jackson's petition should not be granted.

Having reviewed the petition, return and traverse, we hold that (1) the Board erroneously denied Jackson parole because there was no evidence that he constituted a current risk to public safety; and (2) the Board's decision to deny Jackson parole on December 3, 2008, violated section 5011, subdivision (b), and California Code of Regulations, title 15, section 2236. We thus grant the petition and remand the matter to the Board for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Commitment Offense

In 1983, Jackson was tried for the murder of his former girlfriend Sharon Wade. The prosecution alleged that in the early morning hours of July 5, 1981, Jackson fired two shots at Wade, killing her. Jackson has consistently denied that he shot and killed Wade. He contends that the murder was likely committed by Wilbert, a man Wade was seeing at the time of her murder.

The prosecution's case was premised primarily on circumstantial evidence. There were numerous witnesses who testified regarding Jackson's relationship with Wade and his conduct immediately before the murder. The testimony established that Wade was killed shortly after the acrimonious dissolution of a lengthy relationship between Jackson and Wade. Jackson was furious with Wade because she was seeing another man. Just hours before the shooting, in the late evening of July 4, 1981, Jackson was involved in an angry confrontation with Wade. During that confrontation, Jackson threatened to kill Wade and shoved Wade in the face.

The only eyewitness to the actual shooting was Frederick Demus. Demus testified as follows. In the early morning hours of July 5, 1981, he saw from 75 yards away two vehicles parked near each other. From the vehicles he heard a male and a female yelling and screaming. The male stated: "I should have killed you earlier. Call yourself being a player, I'm tired of that shit." The male then walked to the driver's side of the female's vehicle, fired two shots, got back in his vehicle, and drove away.

Because Demus was so far away and it was night time, he could only testify to the profile of the man who fired the shots. He testified that Jackson's profile was the same in four respects. Those four respects were the shape of the mouth, forehead, nose and particularly the bottom lip. There were some inconsistencies in Demus's testimony. For example, at trial Demus testified for the first time that he heard the female refer to the male as "Kevin." When Demus was first interviewed by detectives, however, he did not recall the fact that the name Kevin was used.

Additionally, the prosecution's case consisted of impeaching Jackson's statements to a police officer shortly after the murder. When asked whether his problems with Wade were "in the past or last night," Jackson claimed that the problems were "in the past." Jackson also denied ever threatening to kill Wade but he did admit that he had threatened to kill "a guy named Wilbert if she [Wade] didn't stop seeing him." Jackson's testimony about his problems with Wade being "in the past" and not threatening to kill Wade was contradicted by the testimony of prosecution witnesses.

After a bench trial, Jackson was convicted of second degree murder in violation of section 1987. The trial court also found that Jackson used a firearm within the meaning of section 1203.06, subdivision (a) and section 12022.5. Jackson was sentenced to 17 years to life in state prison.

2. The December 3, 2008, Parole Hearing

On December 3, 2008, the Board held the eighth parole hearing for Jackson. At the hearing the Board and Jackson presented evidence regarding Jackson's pre-incarceration social, work, and criminal history, Jackson's conduct in prison, Jackson's age and physical and mental health, Jackson's plans if he is released from prison, and other circumstances relevant to Jackson's suitability or unsuitability for parole. As we shall discuss post, this evidence indicated that Jackson was suitable for parole.

At the beginning of the hearing, Jackson's counsel stated Jackson did not wish to discuss the crime. The Board, however, reviewed a written psychological evaluation prepared by Dr. Carol Fetterman, dated August 19, 2008, which set forth statements by Jackson regarding his responsibility for Wade's murder. In essence, Jackson stated to Dr. Fetterman that after he was unfaithful to Wade, Wade sought relationships with other men, including Wilbert. Jackson then became jealous of Wilbert and threatened to kill him. According to Jackson, he was responsible for Wade's death because he contributed to the circumstances that led to her death.*fn2

At the parole hearing, Jackson was asked to explain his statements to Dr. Fetterman. Jackson stated: "I brought infidelity into our relationship . . . I was the one that decided that I wanted to see other people first when she was being faithful. So, then, when the table turned, she decided she wanted to see somebody else. Had I not been unfaithful to her, then she probably wouldn't have decided that she could get even or that she wanted to see other people, and that brought the other person involved in our relationship, and at that point, that's when I said I didn't have the maturity to understand that that's unhealthy, that I shouldn't have - if you're going to be with somebody, be with them. If not, then you should terminate the relationship if you want to play around and see other people."

Later, Presiding Commissioner Sandra Bryson and Jackson had the following dialogue:

Bryson: " . . . I don't understand why you've taken responsibility for her death if you didn't kill her."

Jackson: "Because I think I made the situation worse by threatening the other individual, by even bringing it up -- bringing up the point that I was willing to kill him, to shoot him. I didn't know -- I didn't know him really that well. I didn't know how he would react to something like that, so that was a -- " Bryson: "You're sitting in here, according to your claim, taking a murder rap for somebody, and you're not angry about that?"

Jackson: "I was angry about it for a long time. [¶] . . . [¶] . . . I couldn't just be consumed with bitterness and ...


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