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In Re Raymond Rodel Walker

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


June 29, 2011

IN RE RAYMOND RODEL WALKER ON HABEAS CORPUS.

(Super. Ct. No. 91268)

The opinion of the court was delivered by: Hull ,j.

In re Walker

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 1986, defendant Raymond Rodel Walker killed Kristine Thomas. A jury convicted him of second degree murder, and defendant is serving a prison term of 15 years to life.

On July 6, 2009, at defendant's tenth parole hearing, the Board of Parole Hearings (Board) found defendant suitable for parole. However, then-Governor Arnold Schwarzenegger (Governor) reversed the Board's decision, concluding that defendant's release would pose an unreasonable risk of danger to society.

Defendant filed a petition for writ of habeas corpus in the superior court, which was denied. He then filed a petition in this court, and we issued an order to show cause. We conclude that the Governor's decision is not supported by the record and grant defendant's petition.

FACTS AND PROCEEDINGS

The Board incorporated two documents as its factual basis for the commitment offense: our 1988 appellate decision affirming defendant's conviction and a report prepared for an earlier Board hearing.

According to our earlier decision, defendant and the victim met at a bar in downtown Oroville, where they danced, kissed and hugged. When the bar closed at 2:00 a.m., the two left together, and witnesses saw defendant slap the victim. Defendant and the victim then drove off in defendant's car to a restaurant, where they stayed until 3:15 a.m.

At 4:30 a.m., the victim's nude body was discovered at the end of a road. Officers found pools of blood and various personal items. They also discovered a single tire track near the body that extended over the victim's buttocks, across her back, and off her right shoulder. The tire had not passed over the victim's head.

An impression of the tire matched a tire from defendant's car. A criminalist also found blood and hair belonging to the victim on the undercarriage of defendant's car.

A pathologist described the victim's injuries, which included lacerations, scrapes and fractures. The pathologist opined that the victim bled to death from these injuries. She testified that most of the victim's injuries were consistent with having been run over by the defendant's car, while other injuries indicated she may have been beaten before death. The pathologist believed the victim had been alive when she was run over.

At trial, defendant admitted meeting the victim at the bar but he did not remember any further interaction with her. He said he left the bar when it closed, went to look for a friend, and drove home. He denied leaving the bar with the victim and denied killing her.

Defendant was convicted of second degree murder and sentenced to a prison term of 15 years to life.

In 2005, a report was prepared for defendant's parole hearing. Because later reports referenced this report and stated that defendant's version of events had not changed, the Board incorporated the 2005 report as part of its factual findings. This version of events can actually be traced back to the report prepared 10 years earlier for the parole consideration hearing in 1995. Defendant's version of events has remained unchanged since then. This report provided:

"During the interview with [defendant] for preparation of this report he indicated that the prisoner's version as stated for previous hearings continues to remain valid. It is as follows. [Defendant] admitted that he was responsible for the death of the victim. He states that they had been drinking all evening together. They were kissing and hugging and eventually decided they wanted to have sex. They drove to an area and began to become intimate. He states that he was drunk and could not perform. He states that he felt bad, but she became angry. They began arguing and she began to talk about building her up for nothing. She slapped him and they tussled. He ended up hitting her twice. She kept getting up and getting in his face. The third time she went down and did not get up. He said he went and sat in the car, and she was still lying there. Blood was everywhere. He said he kept looking at her because he knew she was dead. He dragged her over in front of the car and turned on the headlights. He checked and determined that she was dead. He laid her down beside the front of the car. He stood there knowing that this lady was dead. Suddenly he saw headlights coming. He panicked, jumped in the car and sped off. He states he was drunk and just wanted to get out of there. He couldn't be seen with her like that. He needed to figure out what to do. He was subsequently arrested for the murder of the victim." Defendant was 28 years old at the time.

Defendant had a number of parole release hearings, beginning in 1996, including six one-year denials starting in 2001. At the hearing in 2009, when defendant was almost 52 years old, the Board granted defendant parole, concluding that defendant did not pose an unreasonable risk of danger to society or a threat to public safety. The Board based its decision on a number of factors.

The Board considered the nature and gravity of the commitment offense, observing that it was "horrendous, very disturbing, very offensive to the sense of society." It outlined the other factors militating against parole, including a prior conviction and time in the Youth Authority for being an accessory to robbery and auto theft when defendant was 14 years old. Defendant had been disciplined in the army for insubordination, and in 1994 had participated in a work strike at the prison, which resulted in a disciplinary write-up. Defendant had a lengthy history of substance abuse, with alcohol as his primary "drug of choice."

The Board found, however, that these factors were "heavily" outweighed by others. Defendant received an honorable discharge from the army and had no adult criminal record other than the commitment offense.

Defendant had been actively involved in Alcoholics Anonymous (AA) since 1989 and had been sober for more than 23 years. He was aware of the issues that had frustrated and angered him in years past, including anger at his parents. He outlined the steps he had taken to overcome those difficulties and described how he reacted differently to triggers at this point in his life.

Defendant explained how he had resolved issues with his parents and learned anger management skills. He said he had decided early in his incarceration that he "was not going to walk out of here the same person [he] was when [he] walked in[.]" He said, "[T]owards that goal I have taken advantage of every opportunity I could to learn more about who I am and what I'm capable of. . . . I don't [run away] from my problems anymore. I confront my problems. I'm not afraid to ask people for help."

Defendant had excellent evaluations from his jobs in the prison, and received laudatory citations for his participation in numerous college classes as well as programs such as creative conflict resolution. He donated a woodcarving that generated $12,000 in a fundraising auction for child abuse prevention services.

Defendant submitted letters of support from his family, a proposed AA sponsor, several individuals offering employment, and treatment centers offering housing. Although his mother and stepfather had offered him a place to live, defendant thought he would do best in a structured environment. Defendant outlined his parole plans, which included continuing in a 12-step program. The Board observed that defendant had done a "nice job" on outlining his goals and that his plan was "well done and seems to be as realistic as any plans we try to make."

Defendant acknowledged his responsibility for the crime, and talked about his feelings of remorse. He noted that he had tried to express his feelings during past parole hearings, and had now written a letter directly to the victim's family. He said he had tried to write this letter "many times" earlier, but "came to find out . . . that probably the main reason why I didn't write that letter is because I was afraid to. I was afraid to confront the family's anger, you know, their hatred for what I've done to them." However, he explained, "the more I thought about it and especially over the last couple of years I realized that the letter wasn't about me and it wasn't about my fears. The letter was to attempt to make amends for what I'd done to the family of [the victim], and so I sat down and wrote it. I don't know how good it is or if it's even going to be accepted by them, but it's what I felt that it's--I just don't know anything more that I can possibly say to this family. Over the years I've tried to . . . make amends for my life and for my reasons for being here through a lot of the things I did while I was incarcerated." He reiterated, "There's nothing I can say to [the victim's family] that's ever going to lessen or alleviate their pain and suffering I caused them. Like I said I'm truly sorry for that, for what I've done to them. I took from [the victim's mother] her daughter, to my knowledge her only daughter. I took from her brother and sister, this kid's their aunt. No replace [sic] of that ever. I am sorry for that. I will live with that until the day that I die. I have to be a better person because of that. Everything I've done I've done to improve my life to make sure that nothing like that can ever happen again."

A psychologist prepared an assessment responding to specific questions posed by the Board at the prior parole hearing in 2007. These questions centered on defendant's potential for violence and alcohol/drug abuse as well as defendant's understanding of the commitment offense and any anger he might have toward women.

In the background to his report, the psychologist reported that defendant told him the commitment offense occurred because he was "angry and out of control" He did not intend to kill the victim, and "couldn't believe at the time that I did it." He had had only two physical fights in his whole life, both of which occurred in elementary school. When asked what had changed to preclude a similar offense in the future, defendant responded that he no longer used drugs or alcohol and did not spend time with those who did. He improved his relationship with his family, and had resolved underlying issues with them.

Defendant told the psychologist that he felt horrible about the effect of his crime on the victim's family. He said, "All the harm that I've done to her and her family, I can't do anything to make it better. In substance abuse treatment, you learn about making amends, but saying sorry seems so inadequate. I have apologized to the relatives, but that's not enough."

The Board specifically asked about defendant's "violence potential in the free community," and the psychologist found defendant's risk of violence to be "low" on a low/moderate/high scale. He reported:

"The inmate's overall propensity for future violence is in the low range when compared to similar inmates. His elevations due to his past history are his substance abuse history, being involved in unstable relationship[s], his age, prior arrests, and some early maladjustment. These variables increase his violence potential. The variables that decrease his violence historically are the facts that the inmate has always been steadily employed, he is not a psychopath, does not have a serious personality disorder, did not have prior supervision failures, and did not have a major mental illness at the time of the crime. The variables that decrease his violence potential . . . are the facts that the inmate has accepted responsibility for the crime as stated, his insight is appropriate, he has had a good response to treatment, does not have negative attitude, has no active mental health symptoms, and is not impulsive. This individual does not present as a significant risk management problem in the community. His parole plans seem feasible and appropriate. He has handled destabilizers, compliance, and stress well in the institution. He appears to have a lot of family support. All of these variables decrease the inmate's violence potential.

"The inmate's likelihood to violate parole is in the low range. The variables that have increased his risk in this area are his controlling case, prior arrest history, family history of criminal activity, and substance abuse history in the past. The variables that decrease his risk include the lack of any violent history while incarcerated with only one [disciplinary write-up], educational upgrades, vocational upgrades, and an outstanding work record. He has been very active in self-help, AA, NA, and religious studies. Additional factors to consider are the inmate's age, maturity, current close relationships with the family, and pro-social values."

The psychologist noted, however, that he had no experience with defendant outside a controlled setting, and that if defendant resumed substance abuse, "his risk of recidivism and re-offending would considerably increase."

In response to the Board's earlier request for an estimate of defendant's ability to refrain from alcohol and drugs, the psychologist stated that defendant "readily admits that his use of alcohol was a contributing factor to the controlling case. The inmate was out of control, but he does not use this as an excuse. He started drinking at a young age. He acknowledged it was causing him life problems. He has been clean and sober throughout his incarceration. The inmate has embraced the substance abuse program and its recovery philosophy while incarcerated and continues to participate. It is recommended the inmate be involved continuously in substance abuse treatment while incarcerated and that it be a significant part of his parole plans."

The Board had also asked about the extent to which defendant had come to terms with the underlying causes of the commitment offense. The psychologist responded, "The inmate readily acknowledges that alcohol impaired his judgment, but does not use it as an excuse. The inmate identifies a number of underlying issues that contributed to the crime, including his frustration, things not going right in his life, problems in his relationships, his own self-doubts with unresolved anger towards his father and mother, being angry at himself, and not feeling in control of his life. The inmate appears to have spent a considerable amount of time attempting to understand his background and other influences in the controlling case. He has been remediating these areas for many years. 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."

The psychologist also responded to the final question from the Board relating to defendant's anger towards women. He stated that defendant "readily admits that he lost his temper when he was slapped and verbally degraded. He readily admits that it was an overreaction due to all the built up frustrations at the time, with underlying issues discussed above, but in particular his unresolved anger towards his dad and his mother, feeling that his mother did not understand what was going on. More importantly, he was very angry with himself, and that he let his life get out of control. He did not have anger problems with women prior. There was also a family history of his father being an alcoholic. All this had an effect on him. The inmate has had a chance to resolve these issues with his mother, and was working on them with his father until he passed away. The inmate has also had an opportunity to work on these issues in the past when he was at Tracy, one-on-one, and in group treatment. 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."

In deciding to grant defendant parole, the Board noted the evolution in defendant's thinking about the crime he committed, observing that defendant initially blamed his attorney and was not forthcoming, but now understood what had led to the murder. The Board found defendant "exhibited a very heartfelt and emotional expression of remorse, not just toward . . . your victim, but towards her family, her mother." Defendant's letter to the victim's family was described as "genuine," and "poignant," and expressed "the same heartfelt and genuine feelings of remorse that you exhibited to us today."

The Board also commented on defendant's insight about his anger, stating "I think it can be said the anger you had with your father . . . anybody would understand. Your father was arrested and convicted of rape when you were about ten years old. Went to prison and served his time and you had feelings of obviously abandonment and anger towards him as anybody would. You lived in a very small town . . . and I can imagine what other kids and their parents may have said about you, your family and your father, and conversely your mother at the time was a deputy sheriff. She had five children and probably understandably wasn't home a whole lot." The Board noted that defendant's father was an alcoholic and that defendant had witnessed his abuse, and complimented defendant for resolving his issues with his father before his father died.

The Board emphasized defendant's exemplary work and study efforts in prison and remarked on the viability of defendant's parole plan and the support he had received from all quarters.

The Board granted parole with a number of conditions, including continued treatment and drug and alcohol testing.

The presiding commissioner concluded by saying, "I just want to tell you I knew when I read the case over the weekend, I was preparing for the hearing, that aside from you coming into the hearing today and just having some unusual circumstance that would indicate that you weren't ready it was looking like you were very ready, and I am very pleased to say that when you came in you even went above and beyond what I expected you to come in and say, and you did appear very genuine, very well spoken, and I just think it's time for you to go out there and try and do good."

The Governor reversed the Board's decision. The Governor acknowledged that there were "various positive factors" in defendant's favor, including that defendant "made efforts in prison to enhance his ability to function within the law upon release" and that he received "some positive evaluations" from correction officials and mental health professionals. However, the Governor concluded that defendant's crime was "especially atrocious because his victim was particularly vulnerable. [The victim] had a blood alcohol level of .38 percent and posed no threat to [defendant], but he brutally beat her and then mutilated her body by running over her with his car."

The Governor added, "I am also concerned that, although [defendant] says he accepts responsibility and despite his participation in therapy and other programs in prison, he has still failed to obtain insight into his actions in the life offense." The Governor reviewed explanations defendant had offered over the years, from his claim of innocence at trial to later statements that he became angry and "snapped," and concluded, "The fact that [defendant] has consistently minimized his actions in the life crime by alternatively claiming that the victim 'provoked' him, that her medication caused her to bleed to death or that he had unresolved anger toward his parents indicates that he has not gained sufficient insight into or accepted full responsibility for [the victim's] murder. His lack of insight renders the life offense still relevant to my determination that [defendant] continues to pose a current, unreasonable threat to the community because he cannot ensure that he will not commit similar crimes in the future if he does not completely understand and accept full responsibility for his offense.

"The gravity of the crime supports my decision, but I am particularly concerned that [defendant] has not gained sufficient insight into the circumstances of the murder and continues to blame others for his actions. This evidence indicates to me that [defendant] still poses a risk of recidivism and violence and that his release from prison at this time would pose an unreasonable risk to public safety. The Butte County District Attorney's Office agrees, registering its opposition to [defendant's] parole."

Defendant filed a petition for habeas corpus in the trial court. The trial court denied the petition, reviewing the law relating to a discretionary decision by the Governor to reverse a grant of parole, and concluded with one sentence: "Here, the Governor of California's reversal and statement of reasons contains some evidence to support a conclusion of current dangerousness to the public including the life offense, [defendant's] failure to gain sufficient insight into the circumstances of the murder as reflected in part by his changing versions of and motivations for the life offense, and that he continues to blame others for his actions."

Defendant filed a petition for habeas corpus in this court and we issued an order to show cause.

DISCUSSION

"The granting of parole is an essential part of our criminal justice system and is intended to assist those convicted of crime to integrate into society as constructive individuals as soon as possible and alleviate the cost of maintaining them in custodial facilities. [Citations.] Release on parole is said to be the rule, rather than the exception . . . ." (In re Vasquez (2009) 170 Cal.App.4th 370, 379-380.)

Under Penal Code section 3041, the Board must set a parole release date unless it determines the inmate is presently unsuitable for parole because "the gravity of the current convicted offense . . . 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 . . . ." (§ 3041, subd. (b).)

In making a determination whether to grant parole, the Board considers a number of different factors, such as the nature of the offense and defendant's behavior before, during, and after the crime, defendant's mental state, criminal record, social history, attitude toward the crime, and parole plans. (Cal. Code Regs., tit. 15, § 2402.) "It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public." (In re Lawrence (2008) 44 Cal.4th 1181, 1212; see also In re Shaputis (2008) 44 Cal.4th 1241, 1254-1258.)

The identical considerations apply to the Governor's decision to reverse, modify, or affirm a parole decision of the Board. (In re Shaputis, supra, 44 Cal.4th at p. 1258; In re Rosenkrantz (2002) 29 Cal.4th 616, 660-661.)

Judicial review of either the Board's or the Governor's decision is limited to determining whether there is "some evidence" to support the determination that the inmate poses a current threat to public safety. (In re Lawrence, supra, 44 Cal.4th at p. 1191.) Although this is a deferential standard, it is not "toothless" (id. at p. 1210), nor does it convert the reviewing court "'into a potted plant.'" (Id. at pp. 1211-1212.) "[O]ur review must be 'sufficiently robust to reveal and remedy any evident deprivation of constitutional rights.' [Citations.] '[R]ote recitation of the relevant factors' without adequate reasoning to establish a 'rational nexus' between the cited factors and the conclusion that someone poses a current danger is an inadequate basis for denying parole. [Citation.] Thus, when the Board or Governor fails to articulate an appropriate nexus between the relevant factors and their assessment of dangerousness, the denial of parole cannot be sustained." (In re Powell (2010) 188 Cal.App.4th 1530, 1538-1539.)

A finding that the commitment offense was particularly egregious is not sufficient to support a denial of parole by either the Board or the Governor. "Rather, the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense. . . . [¶] . . . [T]he Board or the Governor may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate's criminal history, but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. [Citation.] Accordingly, the relevant inquiry for a reviewing court is not merely 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." (In re Lawrence, supra, 44 Cal.4th at p. 1221; see also In re Twinn (2010) 190 Cal.App.4th 447, 462-464.) "This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate's psychological or mental attitude." (In re Shaputis, supra, 44 Cal.4th at p. 1255; see also In re Rosenkrantz, supra, 29 Cal.4th at p. 682.)

"An inmate's acceptance of responsibility and signs of remorse may be considered in determining the inmate's suitability for parole. [Citations.] In addition, to the extent these factors show an inmate lacks insight into and understanding of the behavior precipitating the commitment offense, they can support a conclusion the inmate is currently dangerous. [Citation.] Expressions of insight and remorse will vary from inmate to inmate and there are no special words for an inmate to articulate in order to communicate he or she has committed to ending a previous pattern of violent or antisocial behavior. [Citation.] Like all evidence relied upon to find an inmate unsuitable for release on parole, . . . 'lack of insight' is probative of unsuitability only to the extent that is shown by the record and rationally indicative of the inmate's current dangerousness." (In re Twinn, supra, 190 Cal.App.4th at p. 465.)

Here, in reversing the Board's determination to grant parole, the Governor emphasized the atrocious nature of the commitment offense. "But such a characterization can be made about all second degree murders. . . . [¶] . . . [T]here are few murders that cannot be described as being particularly aggravated, or as involving some act beyond the minimum required for conviction of the offense so that 'a strict minimum elements inquiry [by a reviewing court] would mandate upholding in every case the denial of parole, regardless of whether other evidence in the record clearly attenuates the predictive value of the offense, and without any consideration of whether the gravity of the offense continues to provide some evidence that the inmate remains a threat to public safety many years after commission of his or her offense.'" (In re Gomez (2010) 190 Cal.App.4th 1291, 1307-1308, quoting In re Lawrence, supra, 44 Cal.4th at p. 1218.)

The Governor also cited defendant's lack of insight as a basis for reversing the Board's decision, but there is no evidence to support that conclusion or the necessary corollary that defendant posed a risk of current dangerousness to the community. According to the report prepared for defendant's 2005 parole hearing, defendant acknowledged his responsibility for the victim's death. This version of events actually came from the report prepared 10 years earlier, in 1995, and defendant's description has remained unchanged since then. Defendant's references to the fight with the victim and his drinking were not offered as excuses for his behavior but simply gave context to his explanation. (See In re Powell, supra, 188 Cal.App.4th at pp. 1539-1542; In re Palermo (2009) 171 Cal.App.4th 1096, 1110-1112, overruled on other grounds in In re Prather (2010) 50 Cal.4th 238, 252.) There is no evidence to support the Governor's conclusion that defendant has "consistently minimized his actions" by offering varying explanations for the crime, nor is there evidence to support the Governor's claim that defendant "has not gained sufficient insight into or accepted full responsibility for [the victim's] murder." In fact, the evidence establishes just the opposite. Unlike cases such as In re Taplett (2010) 188 Cal.App.4th 440, 447-450, defendant's psychological evaluations and parole hearing reports consistently demonstrated that defendant indeed has insight into the underlying crime and has accepted full responsibility for his actions. As one psychologist noted, defendant "appears to be an exemplary parole candidate."

Moreover, the Governor erred in relying on communication from the Butte County District Attorney's Office "registering its opposition to [defendant's] parole." The People sought to introduce this letter at the parole hearing, but did so in an untimely manner. Defendant objected, the Board sustained the objection, and the Board did not consider this letter. "[T]he Governor's review is limited to the same considerations that inform the Board's decision." (In re Rosenkrantz, supra, 29 Cal.4th at pp. 660-661; see also In re Gomez, supra, 190 Cal.App.4th at p. 1305.) There is no basis for the Governor to consider evidence that was excluded from the parole hearing. (Compare with In re Ross (2010) 185 Cal.App.4th 636, 641, 645-647 [Governor may rely on new evidence submitted by the Board, unavailable when the Board made its decision and to which the inmate has had an opportunity to respond].)

During his incarceration, defendant has affirmatively engaged in a variety of constructive activities, ranging from AA and more than 20 years of sobriety, to vocational training, college classes, and participation in a myriad of other programs. Defendant has "credibly demonstrated that he has adopted a radically different lifestyle" (People v. Powell, supra, 188 Cal.App.4th at p. 1539), and there is no evidence to support the Governor's conclusion that defendant would pose an unreasonable risk of future dangerousness if released. "[W]hen the . . . Governor fails to articulate an appropriate nexus between the relevant factors and their assessment of dangerousness, the denial of parole cannot be sustained." (Ibid.) The Governor abused his discretion in overturning the Board's decision to grant parole.

DISPOSITION

Defendant's petition for a writ of habeas corpus is granted. The Governor's decision reversing the Board's grant of parole is vacated and the Board's decision is reinstated. The order to show cause, having served its purpose, is discharged.

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

20110629

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