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In Re Darlene Brazil

July 8, 2011

IN RE DARLENE BRAZIL, ON HABEAS CORPUS.


Super. Ct. No. PC20100112

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

In re Brazil 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, petitioner Darlene Brazil, then 21 years old, smothered her two small children to death and then tried to kill herself so they would all "be together" in heaven. She pleaded guilty to two counts of second degree murder, for which she was sentenced to concurrent terms of 15 years to life in state prison.

In 2009, following an exemplary record that included self-help, extensive therapy, development of job skills, and a comprehensive psychological evaluation concluding that she posed a very low risk of danger to the community, she was unanimously found suitable for parole by a two-member Board of Parole Hearings (the Board).

Former Governor Arnold Schwarzenegger reversed Brazil's grant of parole based on three cited factors: (1) her crimes were especially atrocious; (2) she exhibits "many" of the characteristics of borderline personality disorder, which "remain predictive" of her current dangerousness; and (3) she lacks sufficient insight into her life crimes.

Brazil petitioned the trial court for a writ of habeas corpus, contending that the Governor's reversal was unsupported by "some evidence" in the record. (In re Lawrence (2008) 44 Cal.4th 1181, 1212 (Lawrence).) The trial court upheld the Governor's decision.

Brazil then petitioned this court for a writ of habeas corpus. We granted an order to show cause before this court. For the reasons that follow, we conclude the Governor's reversal was not supported by some evidence that Brazil poses an unreasonable risk to public safety if released. We shall grant habeas relief and reinstate the Board's decision.

FACTUAL AND PROCEDURAL BACKGROUND

Brazil's Childhood and Family Background

Brazil was born in San Francisco. She was one of eight children. Her parents divorced when she was two years old. Although she denied any history of physical abuse, she reported being the object of inappropriate sexual contact by her older brother when she was in the seventh or eighth grade.

Brazil went to live with her biological father at age 14, but there was conflict, which prompted her stepmother to ask her father to choose between the stepmother and Brazil. Brazil's father chose the stepmother; so by age 16, she was asked to move out of her father's home, traumatizing her greatly.

Brazil met her husband, Frederick Dingess, in elementary school and became pregnant by the time she was 17. The couple had a son, but divorced within three years. In 1984, Brazil began dating another man and bore his son. The man did not work, so she had to support the family by working two jobs.

Subsequently, Brazil and her ex-husband tried to reconcile. The attempt failed, since he began dating other women and staying out all night, as he had done in the past. As a result of rejection by her father and the two men with whom she had serious relationships, Brazil developed feelings of abandonment. She observed, in retrospect, that she was so desperate for love that she would do anything to please a man, rendering her emotionally unstable.

The Life Crime

In the early morning hours of May 20, 1986, Brazil and her two young sons were in a car belonging to her ex-husband Dingess. As she drove to a liquor store to exchange cars with him, she saw him with another woman coming out of the store. Dingess told Brazil that he was sleeping with the woman and said, "'[s]he is a lot better than you.'"

The episode hurt Brazil very deeply. As they parted, she told Dingess, "'[n]o matter what happens, we all still love you.'" Later that evening, she waited for everyone to go to bed, then grabbed a knife from the kitchen. She suffocated her four-year-old son by placing a pillow over his head. When her one-year-old son woke up, she gave him a bottle to calm him down and suffocated him as well. Brazil then tightened a leather belt around her neck and cut her right wrist three times in an effort to kill herself.

The effort was unsuccessful. After passing out, she was discovered lying on a bed next to the boys with a leather belt around her neck, bleeding from the wrist. She later told investigators that after the encounter with Dingess, whom she idolized, she felt she no longer had any reason to live. Her intention was to be with her children "all together in heaven."

On April 3, 1987, Brazil pleaded guilty to two counts of second degree murder and was sentenced to two concurrent indeterminate terms of 15 years to life in state prison.

Post-incarceration History

Other than her life crime, Brazil has no criminal or juvenile record. She has never had alcohol or drug problems. She has had an outstanding conduct record in prison, with only one disciplinary write-up in 1995 that did not involve drugs or violence.

Brazil completed vocational training in carpentry and data processing. She held institutional jobs as a clerk, housekeeper, machine operator, sewing machine operator, and teacher's aide, and was the lead person for the construction department at the Prison Industry Authority (PIA). She graduated from the apprentice program at PIA Construction Forklift and her computer skills were lauded by her supervisors.

Brazil also vigorously engaged in therapy and self-help groups. She has participated in Alcoholics Anonymous, Al-Anon, Co-dependents Anonymous (CODA), Anger Management, Breaking Barriers, Convicted Women Against Abuse, Happy Hats for Kids Project, Long Termers Organization, Mexican/American Resource Association, New Beginnings, Parenting, Search for Significance Christian 12-Step Program and Shalom Sisterhood. She regularly attends CODA classes, reads books about codependency, and has co-led her anger management and self-esteem classes.

Plans for Life After Parole

Brazil also developed well-formulated plans for a transition to life outside of prison. She was approved for acceptance into the Crossroads program in Los Angeles, which provides for food, clothing and shelter and features many programs designed to assist its clients to maintain clean living and prevent relapse. She had procured a job offer from a custom sign and design firm in Van Nuys. She also completed a carpenter's apprenticeship program, which earned her a letter of recommendation.

Psychological Evaluations

Psychological evaluations in 2003, 2005 and 2006 diagnosed Brazil with borderline personality disorder. However, her last evaluation in 2009 determined that she no longer suffers from any mental disorders. Since 2005, all her evaluations have ...


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