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In Re Merlyn E. Maas


August 24, 2011


(Super. Ct. No. 09F03494)

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

In re Maas



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The Board of Parole Hearings (the Board) twice granted parole to respondent Merlyn E. Maas (Maas). Former Governor Arnold Schwarzenegger (the Governor) twice reversed those grants.*fn1

Maas successfully petitioned the trial court for a writ of habeas corpus. The trial court found the Governor's reversals were not supported by the applicable legal standard of "some evidence," and reinstated the Board's grant of parole.

In April 2010, we denied a writ of supersedeas request from the Secretary of the Department of Corrections and Rehabilitation on behalf of the Governor (the State) to stay the trial court's habeas order; this meant that Maas, who is in his mid-60's, was released from prison on parole.

The State now appeals the trial court's habeas order. (Pen. Code, § 1506.) The State contends that some evidence supports the Governor's parole reversals because Maas (1) participated in educational and vocational programs in limited fashion; and (2) lacked insight and minimized his responsibility for the offenses.*fn2 We shall affirm the trial court's order granting Maas's writ of habeas corpus.

We will proceed straight to our discussion. We will first set forth our standard of review and then interweave the pertinent facts as we discuss the parole factors at issue.


I. Standard of Review

California's governor may review any parole decision of the Board. (Cal. Const., art. V, § 8, subd. (b); In re Burdan (2008) 169 Cal.App.4th 18, 28-29 (Burdan).) A governor's determination of an inmate's suitability for parole is subject to the same legal standards as that of the Board. (Burdan, supra, at p. 29.)

"[Our] standard of review . . . is . . . whether 'some evidence' supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous." (In re Lawrence (2008) 44 Cal.4th 1181, 1191 (Lawrence).) "[T]he 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. This inquiry is . . . 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." (Id. at p. 1221.)

The deferential review of the some evidence standard, however, does not mean that parole denials are upheld as long as there is some evidence to support any of the factors cited for parole unsuitability; again, this some evidence standard zeroes in on the critical factor of whether the inmate poses a current risk of danger to society if released from prison. (Lawrence, supra, 44 Cal.4th at pp. 1210, 1212.) This is because an inmate's constitutional liberty interest under the due process clause is involved. (Id. at p. 1210.)

II. The Facts and Analysis

A. The Circumstances of the Crime

The State at oral argument clarified that it was not relying on the parole factor of the circumstances of Maas's crime to support the Governor's parole reversals. However, to set the stage for this appeal, we will set forth the basic circumstances.

Maas had a literalist Christian upbringing, where he was taught at home, at school, and at church that homosexuality was "the ultimate sin."

On July 4, 1983, Maas, then 39 years old and the owner-operator of an 18-wheel truck/trailer, was in the middle of a haul from Washington to southern California. His wife, who usually accompanied him as a co-driver, was away at a wedding.

During a stopover in Sacramento, Maas met a homosexual couple, Charles Zahlke and Richard Luttig. The three men socialized over a fifth of brandy that Maas had. The conversation turned sexual, and eventually so did the activity, with Maas engaging in oral copulation and anal intercourse with the men in the sleeper cab of the truck.

Immediately after this sexual activity, Maas left the truck, and then returned and shot both men with a gun he carried for protection on the road. He killed Zahlke and injured Luttig, who was trying to escape the carnage. Maas ran to a nearby business, telephoned the police, and admitted the shooting.

Maas pleaded guilty to second degree murder and attempted murder, with use of a firearm. He was sentenced to 15 years to life for the murder, enhanced by two years for the firearm use, and a nine-year concurrent sentence for the attempted murder.

B. Limited Participation in Educational and Vocational Programs

As the Governor stated in his 2009 parole reversal, "[I] also continue to be concerned by Maas's limited participation in educational and vocational programs while he has been incarcerated. He earned a GED in 1986, but has not completed any additional educational programs since that time. Similarly, Maas has failed to complete any vocational programs and received his last vocational training nearly 20 years ago. Moreover, though Maas did participate in some self-help and therapy courses in 2008, he has still only completed a limited number of courses in relation to the length of his incarceration. . . . Maas's minimal efforts to enhance his ability to function within the law through these programs indicate that Maas has not yet developed the requisite tools to succeed on parole."

The Governor himself, though, recognized in his 2008 and 2009 parole reversal statements that Maas had enrolled in 2005 in a computer operations certificate program at a community college, completing some units of course work there, and had completed three-quarters of a vocational drafting program in the early 1990's; Maas's participation in the drafting program was curtailed only because the prison stopped offering it.*fn3

In any event, these educational programs are largely academic here. This is because, as Maas's counsel accurately puts it on appeal, Maas "was an unusually skilled and employable prisoner in several fields and already had several job offers and employment lined up upon his release." And it bears noting that Maas was entitled to Social Security benefits upon release as well.

Maas began working as a journeyman carpenter in 1965, obtained that license before he was imprisoned, and continued to use those skills while behind bars. Maas had received numerous job offers in various construction positions pending his release from incarceration.

For many years prior to prison, Maas had been a partner in a construction firm, and later started his own long-haul trucking business.

During imprisonment, Maas worked for 10 years as a skilled machinist in a public-private program, until that program was ended because it was competing with the private labor force.

In addition, the Governor's 2009 parole reversal statement noted that Maas is "a member of a Bible study group. . . . He also received a certificate of proficiency as an ordering clerk [and] . . . held institutional jobs such as garment factory worker, custodian, tailor, laundry worker, Prison Industry Authority sewing machine mechanic, medical attendant, and several clerk positions. In addition, Maas [has] availed himself of some self-help and therapy programs, including Alcoholics Anonymous (AA), a chemical dependency program, several stress and anger management courses, a victim awareness course, Basic Skills, and Behind the F.A.C.E. (Firearms Crime Enforcement Forum). He has also been a facilitator for Breaking Barriers for the past 15 years [a personal change program that develops cognitive thinking skills], and he is an active member in Toastmasters and Lifer's Club groups. Maas was also commended for personally developing a program based on the book A Purpose Driven Life."

A mental health social worker reported in 2005 that Maas "maintains an open mind" notwithstanding his literalist Christian upbringing, and further explained that in "the 1990's, open displays of homosexuality were blatant within the prison population. Mr. Maas worked with as well as participated in offender programming with these men. No incidents of hostility towards these men by Mr. Maas have ever been documented. Mr. Maas is clear that homosexuality is a lifestyle that he does not agree with personally yet he does not impose his opinions on others."

This social worker also noted in this 2005 report that Maas "created two release plans--one for Sacramento, CA and one for Lynden, WA. In both, he has secured employment and housing. His marriage remains stable after 14 years, [he] has received continued support from friends, family and the community of Lynden, WA, and [he] has been infraction-free for twenty-two years [i.e., nearly his entire sentence]."

The evidence shows that Maas had participated in every self-help program available to him in the Washington state prison system, and had "utilized all resources available within the [Washington] penal system to address his goal of being a better person."

For all these reasons, we conclude there is not some evidence to support the Governor's conclusion that Maas posed a current danger because of his limited participation in educational and vocational programs.

C. Lacked Insight and Minimized Responsibility

The Governor also concluded that Maas posed a current danger because he lacked insight and minimized his responsibility for the offenses. The Governor explained in 2009, "The fact that Maas consistently minimizes his conduct by claiming that he was seduced by the victims indicates that he has not fully accepted responsibility for his criminal conduct. . . . [¶] . . . It is plain that Maas committed his life offense because of anger or shame at himself triggered by the fact that he had violated his own religious beliefs. . . . Maas's inability to understand that issue demonstrates that he has still not gained sufficient insight into the circumstances that led to his life offense to ensure that he will not engage in similar future crimes." (Italics added.) In a nutshell, the Governor concluded that Maas murdered and attempted to murder the victims "not for what they did, but for what he did, and his failure to perceive this distinction renders him currently dangerous."

On this point, the Governor has misperceived the evidence. The evidence shows that Maas understands and agrees with the "plain" insight quoted above from the Governor.

It is true, as the Governor notes, that for years after the offenses, Maas "denied" having had sex with the victims. It is also true that once Maas initially admitted the sexual encounter, he maintained for some time thereafter that the victims had "seduced" and "duped" him into having sex. Finally, it is true that as recently as 2008, Maas stated in his psychological evaluation that he felt "enticed" prior to committing his crimes.

But this "denial" and "seduction/duping" evidence is only indicative of what the record has long shown to be Maas's motivation for the offenses: "his involvement in sexual behavior that was intensely at odds with his sense of identity at the time." The record shows that Maas now understands this, has understood this for a long time, and understands that he alone was responsible for his gruesome crimes (not his victims).

The evidence with respect to Maas's "enticed" statement further demonstrates this point. That evidence is from the 2008 psychological evaluation and the 2005 social worker report. The 2008 evaluation states as pertinent: "While [Maas] originally attributed his sexual encounter to the victims, he does not, now. . . . [¶] . . . [¶] . . . He was enticed, but he still made a choice, and he alone made it. There can be influence, but there is still choice. He described enticement using a metaphor of advertising. Temptation may come from many places, but people are still responsible for their choices." And in the 2005 report, Maas similarly acknowledged "that his actions were in response to being enticed by his thoughts; the pictures he created in his mind based upon the victims' presentation of what the sexual encounter would be like. His fascination with the sexual act resulted in his choice to engage. [Maas] claims that his victims never hurt him. However, he was hurt emotionally and spiritually--knowingly engaging in an activity that went against his beliefs and values . . . ."

The 2008 psychological evaluation further adds with respect to "enticement": "Risk assessment techniques and tools put [Maas] in the 'low' range of recidivism risk [i.e., these techniques and tools equated Maas with people who have "a very low risk of reoffens[e]"] . . . . [¶] . . . [¶] [Maas] made a point to say that he felt 'enticed' prior to committing the acts that led to his committing his crimes. This actually shows excellent insight on [Maas's] part. It was apparent that he did not blame his victims for his crimes; however, he knows that he permitted himself to be susceptible to their seduction, and his behaviors were so abhorrent to him that he tried to murder what appeared, at the time, to be the sources of his misery. Much later, he came to realize that he permitted himself to fool himself in this way in order to justify his crime. This appears, in no way, to be the case, presently. Weeping and, at times, sobbing, he accepted full responsibility for his heinous criminal actions."

This is what Lawrence had in mind when it stated that the inquiry into current dangerousness "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." (Lawrence, supra, 44 Cal.4th at p. 1221.)

The Governor, however, cited to brief comments in four psychological evaluations--one evaluation from 2001, two more from 2004, and one from 2008--to bolster his view. We are not swayed.

The Governor claimed that Maas, in the 2001 evaluation, expressed his belief that he remained incarcerated because of "politics." Actually, the record shows it was Maas's attorney who expressed this belief.

In the first 2004 evaluation cited by the Governor, the evaluator noted: "Mr. Maas's responses to questions about his crime and the reasons for his crime were vague and non-committal. It is difficult to know if he was overly cautious in order to refrain from saying anything that might inadvertently lessen his chance of parole or if he actually has little insight into the reasons for his behavior at the time." The record, however, shows it was "over cautiousness" rather than "little insight" because in the second evaluation of 2004, undertaken only nine months later by the same evaluator, the evaluator stated with respect to "Insight": "Mr. Maas demonstrated a willingness to examine the details of his crime as well as possible after this span of years and to explore possible motivations. . . . He freely asked questions . . . [¶] . . . [and] suggest[ed] that [he] saw his participation in the sexual experimentation as being so contrary to his perception of who he was as a person that he attributed his own behavior to the influence of his victims."

As for the second evaluation of 2004 cited by the Governor, the Governor noted the evaluator's belief that Maas apparently was "somewhat frustrated by being asked [by the Board] to explain what he has never understood that well himself." However, the "somewhat frustrated" statement reads in context: "[Mr. Maas] seemed to be motivated to make an honest effort to understand better his motivation for his crime. At the same time, he seemed to want to understand what was wanted by the [Board], and to be somewhat frustrated by being asked to explain what he has never understood that well himself. . . . He appeared to be working very hard to find a balance in being honest with his frustration without saying anything critical. [¶] There is nothing in the information currently available to suggest that Mr. Maas's motivation for the crime was anything other than 'homosexual panic' precipitated by his involvement in sexual behavior that was intensely at odds with his sense of identity at the time."

This context for the "somewhat frustrated" comment suggests the Board was covering the same terrain over and over again, in a way Maas reasonably found frustrating. This is borne out by a 2006 declaration from a psychiatrist who formerly worked in the Washington prison system. That declaration states as pertinent: "[T]he Board's recommendation that Mr. Maas enhance his parole suitability by undergoing further counseling about the crime to deeply explore all its possible causes is ill-advised. . . . At this point, having him go over and over the offense encourages and may well produce confabulation, not insight."

Finally, the Governor pointed to a comment in the 2008 psychological evaluation that Maas's involvement in church activities may be "somewhat of a double-edged sword": a "source of strength" which "could also pose some problems were he to begin, again, to reject certain others[.]" This evaluation, however, also noted right after this passage that Maas showed "excellent insight." Furthermore, at the 2008 Board hearing, the Board asked Maas: "What's the most important thing that you can relate to this Board regarding . . . what you've learned over th[e]se several years while incarcerated in terms of this life crime, how it has affected you? Maas replied: "It's affected me where I see people, regardless . . . what they are, who they are, what color they are. They're all human beings, and I have really seen the difference in the homosexual part of it. I still don't agree with it, I never will agree with it, but that is their way of life, and I accept that. . . . [I] just see people as a whole different--they are, they have the right of their, whatever they want to do. . . . I cannot be judgmental, and that's another thing that I've really learned while in prison . . . ." As the trial court noted, "There is no evidence in the record that would indicate that [Maas's] religious beliefs or practices pose any danger to society."

We conclude there is not some evidence to support the Governor's conclusion that Maas posed a current danger because he lacked insight and minimized his responsibility for the offenses.*fn4


The trial court's order granting Maas's writ of habeas corpus, reinstating the Board's 2008 and 2009 parole decisions, and vacating the Governor's reversals of those decisions, is affirmed.

We concur: ROBIE , Acting P. J. MURRAY , J.

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