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In Re Richard Shaputis On Habeas Corpus.

December 29, 2011


Court: Superior County: San Diego Judge: Michael T. Smyth Ct.App. 4/1 D056825 Super. Ct. No. HC18007

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

San Diego County

Here we reaffirm the deferential character of the "some evidence" standard for reviewing parole suitability determinations. Whether to grant parole to an inmate serving an indeterminate sentence is a decision vested in the executive branch, under our state Constitution and statutes. The scope of judicial review is limited. The "some evidence" standard, which we articulated in In re Rosenkrantz (2002) 29 Cal.4th 616 (Rosenkrantz) and refined in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence), is meant to serve the interests of due process by guarding against arbitrary or capricious parole decisions, without overriding or controlling the exercise of executive discretion. (Rosenkrantz, at pp. 664-665; Lawrence, at p. 1212.)

This is our second grant of review to consider whether a majority of Division One of the Fourth District Court of Appeal properly applied the "some evidence" standard to a decision denying parole for petitioner Richard Shaputis. Previously, we decided the majority had correctly asked whether the evidence supported a finding that petitioner posed a current threat to public safety, but improperly substituted its own conclusion for that of the Governor. (In re Shaputis (2008) 44 Cal.4th 1241, 1255 (Shaputis I).) We held that some evidence supported the Governor's decision that paroling petitioner would pose an unreasonable risk of danger to society due to (1) the gravity of the offense, which was a culmination of years of domestic abuse inflicted by petitioner on his wife and family, and (2) petitioner's lack of insight and failure to accept responsibility for his actions. (Id. at pp. 1258-1261.)

We now conclude that the Court of Appeal majority has again invaded the province of the parole authority, in this case the Board of Parole Hearings.*fn1 After our decision in Shaputis I, petitioner refused to be interviewed by the psychologist appointed by the California Department of Corrections and Rehabilitation (CDCR) to perform a comprehensive risk assessment for the Board's consideration. Instead he hired his own psychologist, who submitted a report. Petitioner also refused to testify at his parole hearing. He chose to submit a written statement prepared with the assistance of counsel. The Court of Appeal majority gave credence to these sources of information, and faulted the Board for relying on earlier psychological evaluations and statements by petitioner. However, it is not for the courts to reweigh the evidence before the Board, and an inmate who restricts the Board's access to current information is in no position to complain about the Board's reliance on other relevant evidence. The "some evidence" standard does not permit a reviewing court to reject the Board's reasonable evaluation of the evidence and impose its own judgment.

We also take this occasion to offer some general guidance to the Courts of Appeal on inmates' lack of insight as a parole unsuitability factor. As noted by the majority below, lack of insight has played an increasingly prominent part in parole decisions and the ensuing habeas corpus proceedings.


A. Procedural History

Petitioner was convicted of a second degree murder committed in 1987, and was sentenced to a term of 15 years to life in prison with a two-year enhancement for firearm use. His minimum eligible parole date was in 1998. The Board found him unsuitable for parole at hearings held in 1997, 2002, and 2004. After the third denial, petitioner sought a writ of habeas corpus, which was denied by the trial court. Petitioner took his application to the Fourth District Court of Appeal, which granted him relief in a split decision. The Board was ordered to vacate its denial of parole, conduct a new hearing, and refrain from relying on the same findings it made in 2004 unless there was new or different evidence.

Constrained by these directions from the court, the Board found petitioner suitable for parole at a hearing in March 2006, though the presiding commissioner stated that she continued to believe he was unsuitable for the reasons stated in the Board's 2004 decision. In August 2006, Governor Arnold Schwarzenegger reversed the Board's decision. Petitioner again sought a writ of habeas corpus from the trial court, lost, proceeded to the Court of Appeal, and succeeded in persuading a majority of that court to grant him relief.

We granted review, and considered the matter in conjunction with Lawrence, supra, 44 Cal.4th 1181. In Lawrence, we held that the "some evidence" standard of review applicable to parole suitability determinations applies not simply to the factors relied on for denial, but to the ultimate decision on whether the inmate's release will unreasonably endanger public safety. (Id. at p. 1209; see also id., p. 1235 (dis. opn. of Chin, J.) [agreeing with the majority on this point].) In Shaputis I, we decided that even though the Court of Appeal majority had properly framed its inquiry, it had failed to defer to the Governor's determination that petitioner remained dangerous, which was supported by some evidence. (Shaputis I, supra, 44 Cal.4th at p. 1255.) Accordingly, we reversed the Court of Appeal's judgment. (Id. at pp. 1259-1261.)

Petitioner appeared for another parole hearing in 2009. The Board denied parole, basing its decision on the circumstances of the offense as well as petitioner's failure to gain insight into his behavior and take responsibility for his crime. Petitioner unsuccessfully petitioned the trial court for a writ of habeas corpus. For the third time, however, a majority of the Court of Appeal granted him relief. We granted the Attorney General's petition for review.

B. The Commitment Offense

Petitioner was 50 years old when he murdered his wife.*fn2 On January 24, 1987, his neighbor heard a gunshot between 8:30 and 9:00 p.m. At 9:58 p.m., petitioner called 911. He was screaming and the call was cut off. Petitioner called back immediately and told the dispatcher that he and his wife had had "a little fight" and he shot her. She was dying and needed help. Petitioner said he had not known the gun was loaded. The dispatcher kept him on the telephone until police officers arrived at his house, then directed him to go outside with his hands in the air. The police arrested petitioner, entered the house, and found his wife Erma dead on the living room floor, with a cocked revolver lying nearby. An open box of ammunition rested on a table.

The cause of death was a single gunshot wound to the neck, inflicted at close range. It was likely that petitioner was sitting and Erma was in the process of standing up or bending forward when he shot her. She had probably died within a second or two. Her body lay face up and was cold to the touch. Blood had partially dried on her face, neck, and head. Post-mortem lividity, caused by pooling of the blood, had developed on the lower parts of her right leg and arm.

The murder weapon could not be fired unless the hammer was manually cocked before the trigger was pulled. A "transfer bar" prevented accidental discharge by making the gun impossible to fire unless the trigger was pulled and held back.*fn3 The gun was in excellent working condition. Another handgun and three rifles were in the house. All the other guns were unloaded. Both petitioner and Erma had been drinking. Her blood-alcohol level was .22 percent. Petitioner was not tested initially because the officers did not think he was intoxicated. At 3:00 a.m., his blood-alcohol level was .14 percent. Petitioner presented evidence that the level could have been .24 percent at 10:00 p.m.

Petitioner made a number of spontaneous statements while being guarded at the police station, among them: "I dialed 911." "I had the gun. It went off. And then went off again." "I don't know why it went off." "She was my baby." "She said dial 911." At trial, two of petitioner's daughters testified about past incidents of domestic violence between the spouses, including a prior shooting incident. Erma's parents testified that when he was upset with Erma, petitioner would sometimes threaten to send her "home in a box." They thought he was joking.

C. Petitioner's History of Domestic Violence

Information about petitioner's long history of domestic violence was developed in the probation report and the CDCR reports prepared in connection with the parole hearings. Petitioner's first wife had divorced him after suffering severe physical abuse. On one occasion, he jumped on her stomach when she was pregnant, causing her to miscarry. Petitioner also abused his four daughters, sometimes holding a knife to their throats when he thought they had misbehaved. He singled out one daughter in particular, because she was the weakest emotionally. His daughter Annette said petitioner was a different person behind closed doors than he was when others were present.

One daughter remained in petitioner's custody following the divorce, and lived in his home until 1978. Petitioner and Erma were married in 1964. His daughter saw petitioner beat Erma on several occasions, and noticed large bruises on her body. Around 1972, he beat Erma so badly that she needed plastic surgery. In 1978 his daughter, then 16, accused petitioner of raping her twice when he was intoxicated. He was charged with rape by threat and with incest, but pleaded no contest to reduced misdemeanor charges. Between 1981 and 1986, a friend noticed bruises on Erma every four to six months. Erma told her that petitioner flew into rages and beat her. Around 1985, Erma complained that he had cracked her ribs. About 18 months before the murder, petitioner shot at Erma.

Petitioner's criminal record before the murder encompassed more than the conviction arising from the molestation of his daughter. He was arrested in 1966 for check fraud, although this charge was later dismissed. In 1975, he was convicted of failing to pay child support. In 1978, he was arrested for pandering, convicted of an unspecified offense, and sentenced to 30 days of work furlough. In 1979, he failed to register as a sex offender as required by his molestation conviction. He was arrested at least once for driving while intoxicated.

D. Petitioner's Statements About the Offense

Petitioner has made various statements about Erma's murder during his years in custody. At his parole hearing in 1997, he claimed he had shot Erma by accident; they did not fight before the shooting; she had handed him the gun for his own protection; he did not know the gun was loaded; and he had not aimed at her. When petitioner was interviewed for a CDCR report before his 2004 parole hearing, he declined the opportunity to amend this version of the offense. A 2004 Board report quotes petitioner as saying that after he and his wife had a few drinks, Erma told him there had been a prowler in the neighborhood and wanted him to look at one of his guns to see if she could use it. "She sat the gun on my lap in a leather case. I took it out and the shells that were in the box fell out. I picked up the gun and pointed at the fireplace. I said, 'bang,' and pulled the trigger at the same time. The gun went off. I saw my wife on the floor. I did not see her before that. I ran around the house screaming and then called 911 after I found the phone."

When interviewed by a psychologist in 2004, petitioner explained that he and his wife were both drunk, and she was upset about a purchase of "some carnival glass" that evidently was broken during shipment. After the subject of the prowler came up, "she gave me the gun and it was loaded, but I didn't know that. I pulled out the gun. This part nobody wants to believe. I pointed the gun and pulled the trigger just when she bent over and it went into her neck and killed her. I didn't want to kill her. It was an accident." Asked whether there was an argument, petitioner replied: "No, we talked about the carnival glass. I don't remember the whole thing. I do remember shooting my wife, then called 911. The worst thing about the crime was drinking. I shouldn't have had a firearm. The argument was stupid. It was the most stupid thing I've ever done in my life. I still miss her. We were good friends and loved each other."

In 2009, petitioner's privately retained psychologist described his recitation of the offense as "essentially consistent" with the versions she saw in prior reports. She wrote that petitioner "has long since achieved compelling insights into the causes that resulted in his need to remain in an unhappy long term marriage and the reasons for his inability to leave the marriage. 'I know why I could not leave the marriage and the alcoholism exacerbated my fears. I was scared of being alone and felt I had no other choice but to continue on with Erma. I take responsibility for her being shot. I was drunk and had no sense of what happened when the gun was dropped in my lap. I am not that person and haven't been for many years.' "

E. Petitioner's Relationships with Others

Regarding the molestation of his daughter, in 2001 petitioner admitted he had touched her inappropriately but denied that intercourse occurred. In 2005, however, he denied the allegation entirely, claiming he had wandered into his daughter's room by mistake. A 2006 psychological report observed that petitioner found her accusations "inexplicable." Petitioner had a flat affect when discussing the allegations, which could be a sign of the schizoid tendencies noted in some previous evaluations. When questioned by the Board at his 2006 parole hearing about whether he had a problem in the way he treated women, petitioner replied, "Well, no I don't. I don't know how to say that I don't have a problem now. I didn't have a -- I guess I had a problem then but I don't know how to put it into pictures or words. I just-- it was one of those things I didn't quite understand, I guess. Not having a thorough idea of how stupid I was being, how dumb I was being." Petitioner's counsel advised him not to answer when he was asked to explain his understanding of why he had committed the murder and how he was "different today."

The 2004 psychological evaluation stated that the "atypical, detached, almost schizoid quality to some of petitioner's earlier relationships" was suggestive of early trauma that petitioner chose not to discuss. The report further noted that petitioner had a "reduced" ability to achieve self-awareness and develop relationships with others. Petitioner's mother had deserted the family when he was nine, and he was left to care for his six younger siblings during his father's extended absences from the home. The probation report and a 1997 CDCR report stated that petitioner's father had physically abused him. He denied this in 2004, but the 2009 report prepared by his psychologist related petitioner's description of his father as physically abusive.

At his 2006 parole hearing, it emerged that petitioner had no contact with his siblings, daughters, or first wife. In 2005 he had married a second cousin, who was herself a recovering alcoholic. The psychologist who prepared an evaluation in 2005 confirmed the earlier finding that there was a "schizoid quality" to petitioner's "interpersonal relationships," and noted that he seemed to have "limited . . . insight" into his antisocial behavior and the association between his alcohol abuse and his history of domestic violence. The report stated that "there appears to be little potential benefit at this point in his development to attempt to modify this [character-based] structure." The psychologist was concerned about petitioner's plan to reside with his new wife, given his history of domestic violence, but nevertheless concluded that the risk he would resume this pattern was probably low if he abstained from alcohol. The report recommended random alcohol testing, a mandatory relapse prevention program, and a community-based domestic violence program as conditions of parole.

Indeed, all the CDCR psychological reports, from 1997 until 2009, found that petitioner would probably pose a low risk of threat to the public if released on parole, so long as he refrained from using alcohol. His behavior in prison has been uniformly exemplary. He has completed numerous rehabilitation programs. He has repeatedly been commended by prison staff for his work, conduct, and reform efforts. Petitioner had a stable employment history before he murdered his wife. He worked for San Diego Gas & Electric Company as an electrician and fabricator for seven years, owned his own welding business, and for the 13 years preceding the murder was employed by Bechtel Corporation as a supervisor.

F. The 2009 Hearing

At the latest hearing in August 2009, petitioner was 72 years old. It was noted that he had a comfortable private income from a union pension, Social Security, and some savings. He planned to live with his wife in a retirement community. Petitioner suffers from high blood pressure and has had three heart attacks, the most recent in 2003. He was recovering from shoulder surgery at the time of the hearing.

As noted, petitioner had declined to be interviewed by the psychologist appointed by CDCR to evaluate him in advance of the hearing, Dr. Nameeta Sahni.*fn4 Dr. Sahni prepared a report based on her review of the existing materials in petitioner's record, but emphasized that her inability to interview petitioner limited her evaluation of his current condition. At the hearing, petitioner declined to speak about the murder or his social history. The only newly developed evidence before the Board came from a May 2009 report by petitioner's privately retained psychologist, and the written statement petitioner prepared with the assistance of counsel.

Petitioner's retained psychologist, Dr. Barbara Stark, reviewed petitioner's file, interviewed him for five and a half hours, and gave him a number of psychological tests. All the results were in the normal or average range. Dr. Stark believed the emotional and physical abuse petitioner suffered as a child had deprived him of a chance to develop "critical coping abilities," but that in the last several years he had undergone significant and positive behavioral, emotional, and cognitive changes. Dr. Stark's report noted that petitioner had never been treated for mental problems in prison, that he had a history of severe alcohol dependence but had completed treatment programs in prison, and that his behavior in custody had been excellent. The report took issue with the Board's previous finding that petitioner had a history of unstable and tumultuous relationships. According to Dr. Stark, "the sum of his relationships" was "the relationship with his wife and misconduct with his daughter while under the influence," which "does not meet the level of a history of 'unstable tumultuous relationships.' "

After asserting that petitioner's account of the murder had been consistent over the years, Dr. Stark stated: "It is clear from reviewing the legal documentation that there are inconsistencies in the judicial proceedings and he has continued to accept responsibility for the offense. This has been misinterpreted as a lack of insight and remorse when he stated his version of the index offense as it occurred." She also reported that petitioner said he "has been quoted many times incorrectly when the relationship with his wife was discussed. It is clear that there were inconsistencies in the investigation regarding the logistics regarding the firing of the gun during the index offense."

The report discussed petitioner's insight at length, opining that his behavior had been caused by unmet emotional needs and his dependence on alcohol. "He gives these as no excuses and those behaviors no longer exist in his present day life. He related his past behavior was a need to make himself feel good and he behaved in a self-centered manner to obtain those feelings that resulted in a tragedy that took his wife's life. He spoke about his early need to be accepted and ended up in a death of his wife." Dr. Stark attributed the following statements to petitioner: "In the past I never knew what they meant by insight and no one asked about my feelings as a child how they made me fearful and dependent and not ever wanting to be poor." "I can see how my never having been connected to others severely impaired my judgment. I never even thought at the time of the consequences of my drinking and my wife's drinking and our continuous arguments. I really had no understanding, as unbelievable as that may seem. Since that time I've done a lot of intensive groups regarding how my low self esteem, horrible substance abuse caused my detachment. I'm astonished at the time of the offense at my lack of any thoughts that this situation was out of hand." Asked specifically about the crime, petitioner said: "I am aware of what I did every day. There were so many warning signs I chose to ignore. It was stupid and at the time I had no sense my actions in my home environment would lead to my wife's death." Dr. Stark concluded that petitioner posed a low risk of recidivism, and should be released on parole.

In the written declaration petitioner prepared with counsel, he explained that he had not previously addressed the matter of "insight" because he misunderstood it and had been questioned about it "only superficially." The substance of the statement is as follows:

"4. Because of a fading memory, probably due to my age and illnesses, I do not have a vivid recollection of all of my previous conduct, but I do remember that I abused my wife and at least one of my daughters. I also recall my drinking habits and severe addiction to alcohol.

"5. I do recognize the destructive effects of my drinking and how it terribly impaired my judgment. Over time and with treatment I have come to know that I would not have committed such horrific acts but for alcohol, but I blame myself and low morality, not alcohol, for my crime and former misconduct. Most alcoholics, those with decent character and morality, do not commit such acts.

"6. In my treatment and soul searching over the years I have addressed and dealt with this issue of morality, and with the requirement of lifelong sobriety. On the former subject, I was self-centered and did not respect the needs of my wife and children. Although that was compounded and exacerbated by drinking, the basic flaw was in my own character.

"7. Although I have come to understand these issues, when I look back at the way I answered questions asked by the Board and the Board's psychologists, I focused almost entirely on my present and future sobriety, and failed to adequately explain how deeply regretful I feel about my past. . . . I am making this written statement because it is now more difficult, due to my memory and illnesses, to immediately understand and reply spontaneously to questions, particularly about my past. My shame about my horrible conduct and how it impacted the victims has also played a role.

"8. I want the Board, and everyone, to know that I will [sic] and can never again engage in such terrible conduct. How repulsive it is to me now serves as a powerful deterrent. I have learned to recognize and deal with stress in a socially acceptable manner (in this very stressful environment) and am committed to sobriety for life. . . . Because I am not mentally the same person as before, I think entirely differently, respond to stress differently, and have no use for alcohol, and because I will always feel deep sorrow for my ...

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