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In Re andrew Young

March 14, 2012

IN RE ANDREW YOUNG, ON HABEAS CORPUS.


Trial Court: Contra Costa County Superior Court Trial Judge; Hon. Brian Haynes

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

CERTIFIED FOR PUBLICATION

Petitioner Andrew Young seeks a writ of habeas corpus arising from his denial of parole by the Board of Parole Hearings (Board). The Board's decision was principally based on its conclusion that petitioner lacked insight into what the Board considered to be a particularly egregious crime and why he committed it.

The Board's decision must be vacated because it does not meet what our Supreme Court has repeatedly stated are two basic imperatives of due process. As the court most recently discussed in In re Shaputis (2011) 53 Cal.4th 192 (Shaputis II), the Board must, consistent with due process, answer the "essential question" of "whether the inmate currently poses a threat to public safety" by conducting "an individualized inquiry into the inmate's suitability for parole," "draw[ing] . . . answers from the entire record, including the facts of the offense, the inmate's progress during incarceration, and the insight he or she has achieved into past behavior." (Id. at pp. 219, 220, 221.) Under our highly deferential "some evidence" standard of review, we do not reweigh the evidence. (Id. at p. 221.) Rather, we uphold the Board's interpretation of the evidence if it is "reasonable" in the sense that it meets two imperatives: it must reflect "due consideration" of the relevant statutory factors and, also, it must not be "arbitrary," meaning that its analysis must be supported by at least a "modicum of evidence, not mere guesswork." (Id. at pp. 212, 219, 221.)

The Board's decision does not reflect due consideration of several relevant statutory factors, particularly those regarding petitioner's taking responsibility for the commitment offense and remorse, insights, exemplary prison record, extensive rehabilitative programming, positive psychological evaluations, concrete parole plans, and significant support from family and friends. Furthermore, it is arbitrary. Rather than fulfill its duty to "take the record as it finds it" (Shaputis II, supra, 53 Cal.4th. at p. 212), the Board's reasons for parole denial rest largely on incorrect factual contentions and guesswork, and we have not found any evidence in the record supporting the Board's reasons that is rationally indicative of current dangerousness.

Therefore, we conclude that the Board's decision violates due process. We grant the petition and remand this matter to the Board for further proceedings pursuant to In re Prather (2010) 50 Cal.4th 238 (Prather) to determine whether or not petitioner is suitable for parole, a question we do not address herein.

BACKGROUND

Young, now 50 years old, was sentenced in 1993 to an indeterminate life term for the second degree murder of Dollie Harvey. According to our opinion in People

v.

Young (Aug. 9, 1994, A062097) [nonpub. opn]),*fn1 at trial petitioner admitted killing Harvey, with whom he had had a relationship for several years that was ending, but argued he did so in the heat of passion and was guilty of voluntary manslaughter. At his first trial, the jury found him not guilty of first degree murder, but could not reach a verdict on the lesser charges. Upon retrial, he was found guilty of second degree murder.

The Account of the Crime Contained in the 1993 Probation Report

According to a 1993 probation report considered by the Board, on the evening of August 24, 1991,*fn2 petitioner's friend, David Balter, returned with his girlfriend to his apartment in Albany, California to discover petitioner was in an upstairs bathroom with the door closed. When petitioner emerged, Balter realized he had tried to hurt himself, but petitioner would not respond to questions about himself or Harvey. Over the next few days, petitioner's "erratic conduct" and Harvey's apparent disappearance caused Balter to notify police. The police entered Harvey's apartment and discovered Harvey's body in the rear bedroom with a suitcase covering the head. There were several wounds on both the face and head. Balter directed the police to where petitioner was staying, but he was gone.

On Wednesday, August 28, Balter reported to police that he had talked to petitioner earlier that morning and petitioner told him he was considering suicide, stating, "I'm gonna end it all, it would be best for all of us." Petitioner told Balter he had killed Harvey, stating, "I didn't mean to do it. She hit me and I hit her back." He was arrested that afternoon without difficulty at a Berkeley hospital after Balter's girlfriend told police he was there.

Petitioner told police at the time of his arrest in 1991 that he met Harvey at a restaurant on August 23 and they went to her apartment to discuss their relationship. They argued there and Harvey told petitioner to leave. "[W]hen he failed to do so she grabbed a kitchen knife. She swung it at him and he struck her on the arm, forcing her to drop the knife. She ran to a nearby pantry type closet where she grabbed a hammer. She swung the hammer at him and he was able to disarm her. He then struck her several times with the hammer. She resisted and a fight ensued. He continued to strike her with the hammer and when she continued to resist he strangled her. He indicates she eventually stopped struggling. He stayed at her side for an unknown period of time. He then left the apartment . . . ." He said he threw the hammer and his bloody clothing into a dumpster.

An autopsy of Harvey's body found 67 blunt force injuries and an abrasion on the neck. Forty-eight of the blunt force injuries were on the face and neck. The cause of death was strangulation and blunt force head injuries, as well as blood loss from those injuries.

Petitioner also made a statement for the 1993 probation report, in which he indicated that he had been engaged in a costly, emotional custody battle with the mother (not Harvey) of his son, whom petitioner had taken care of without her for several years, since the boy was two years old. The mother "kidnapped" the boy and took him back to New York. Eleven months later, after numerous trips to New York and a lot of time and money, petitioner lost primary custody. He had to leave his job for a higher paying one, was doing his best to fulfill all of his responsibilities, and felt pressured by his expenses, child support, work, and "the stress of just trying to deal with everything," which was "mounting."

Petitioner said he and Harvey began to argue and their relationship began to diminish. Harvey learned that petitioner had spanked her son and took the boy to live with his father in New York. She and petitioner decided to end their relationship, although they remained intimate and continued to care for each other. Harvey moved with petitioner's help to an apartment. Petitioner left his job and went to New York to visit his son for about a month. The day after he returned to California, he met Harvey when she got off work. He stated:

"We then went to the apartment, had a drink or two and sniffed some cocaine that she had. We were talking about money, the bills, the children and everything else that affected our relationship. The talking became arguing and yelling. . . . The yelling continued I guess [Harvey] became afraid and therefore defensive. She picked up a knife and we started fighting. I hit her and the knife dropped. She ran and picked up a hammer and we continued fighting. At some point in the fight I gained possession of the hammer. As a result of my actions, therefore, [Harvey] is [now] no longer here with us. In that short period of time I lost control of myself both emotionally and physically. I was later told by mental health experts that what happened was not from the result of any one event, but a reaction from an accumulation of events.

"While sitting, with [Harvey] all night, the realization of what happened and what I had done became apparent. I then tried to kill myself in a number of different ways. I was later arrested and jailed. I told the police and everyone else what happened, how, where and why."

Petitioner's Prior History

Petitioner was born on August 16, 1961 in East Meadows, New York. He told the Board he remains in contact with his mother and father, who divorced when he was a child, and has four brothers and one sister, including one police officer, none of whom have a criminal history.

Petitioner graduated from a New York high school in 1979. He enlisted in the Marine Corps in 1980 and was honorably discharged in 1982. He met Harvey in New York in 1987. She moved to the Bay Area and he joined her in 1989, after which they lived together. He worked at a number of jobs between 1983 and 1991. Unemployed at the time of the murder, he had last worked at a wine and spirits company as a warehouseman for two years, and had previously been employed as a freelance legal assistant, at the Oakland Army Base, as a food company purveyor, and as a warehouseman.

Petitioner was convicted of petty larceny in 1979 and attempted possession of a weapon in 1984. He told the Board he was arrested in 1984 after he reached for a bag on the ground that, unknown to him, contained a gun. Although he said he had no juvenile record, the probation officer reported in 1993 that he pled guilty as a juvenile in 1979 to disorderly conduct and creating a dangerous act.

The probation officer reported that petitioner admitted "he used cocaine when he lost custody of his son," and "next" used it on the night he killed Harvey. Petitioner told the Board he only used cocaine once, at Harvey's instigation on the night he killed her, as "an appeasement." The probation officer reported that petitioner "does not believe cocaine had any influence in the occurrence of this offense." Petitioner told the psychologist evaluating him in 2008 that, although he does not "blame the drugs," "[t]hey helped me lose control and there is no excuse for what I did." He told the Board he did not seek help for Harvey after he attacked her "because of being inhibited by the alcohol and cocaine, and not thinking rationally."

The probation officer also reported in 1993 that petitioner said he was a minimal user of alcohol and a marijuana user since high school, and that he was charged with possession of a controlled substance when he was arrested in 1984, although he was convicted of attempted possession of a weapon only.

Petitioner's Prison History

As of the 2009 Board hearing, petitioner's disciplinary record in prison was exemplary. He had not received any disciplinary write-ups, and it is undisputed that he had the lowest possible classification score, given the crime committed. He had above average work reports dating back to 2004, had completed training as a machinist, and was completing vocational training in mill and cabinet work. He tutored other inmates to help them obtain their GED's. In 2004, he sought out and urged prison officials to call an ambulance for an injured kitchen staff person and was credited with helping prevent her further injury.

Petitioner sought, and participated in, individual and group therapy concerning his anger issues from approximately 1999 to 2002. His statements to the Board and the record indicate that he regularly participated in Narcotics Anonymous (NA) or Alcoholics Anonymous (AA) from 2002 until December 2008, when he was transferred to another facility that did not have space for him in a program. He was able to meaningfully discuss various recovery steps for the Board. At the time of the hearing, he was participating in a multi-religious based group called Houses of Healing because AA and NA were not available to him.

Petitioner participated in numerous self-help programs since 2005. He completed parenting and anger management independent study programs and a parenting program in 2005, completed a self-help program called "Ways to Happiness" in 2008, and was in the middle of a "Learning Skills for Life" program at the time of the hearing. He prepared several self-help journals, entitled Thinking Errors, Self-Worth, Values for Responsibility, Relationship Communication, The Con Game, My Change Plan, Coping Skills, and Anger Management.

Petitioner's Parole Plans

Petitioner had multiple housing and employment offers in California and New York, including a full-time employment offer from a construction company with jobsites in the Sacramento area, where his brother would provide him housing. He also had a number of letters of support from family and friends. He stated that he planned to continue attending AA and NA meetings if released.

Psychological Evaluations

Psychological evaluations of petitioner were all positive. In 2008, forensic psychologist Kathleen Twohy administered three tests to estimate his risk of future violence. He scored lower than 99.3 percent of North American male offenders on the psychopathy check list and lower than 97.7 percent of North American incarcerated male offenders for recidivism risk, and showed a low likelihood of becoming involved in a violent offense if released. Twohy concluded that he demonstrated "at least average insight," did not have impulsivity issues, did not demonstrate cocaine abuse or dependence based on his report of his one-time use of it on the night of the crime, and presented a low risk of future violence.

In 2005, Forensic Psychologist Corinne Schroeder concluded that petitioner's risk of harm to others was below average for the parolee population. He had "programmed in an exemplary fashion," showed genuine remorse, and was "ready to go home at such time as the Board determines that he has sustained his gains long enough to be considered reliable and permanent."

In 2000, psychologist Louis Beermann noted that petitioner's judgment and insight appeared normal, and that he would not pose "more than a normal risk factor whether in or out of a controlled environment." Beermann stated that petitioner "would be an excellent candidate for parole."

In 1996, psychologist Robert Wagner reported that petitioner's history indicated symptoms of depression, that he was not presently suicidal, and that he had sought out counseling immediately after the crime and while in prison. Wagner estimated that petitioner's "potential for violence is less than average."

The 2009 Board Hearing

At the 2009 Board hearing, the presiding commissioner began the Board's substantive inquiry by reading from "the most recent deputy counselor's report" summarizing the commitment offense and stating the "prisoner's version" of it, which appears to be an August 2009 "Life Prisoner Evaluation" that is contained in the record.*fn3

The presiding commissioner then asked petitioner if he remembered the evening in question and how many times he recalled hitting Harvey with a hammer. Petitioner said he recalled that evening and hitting Harvey "a total of six or seven times, but after reading the autopsy and the reports that were filed, I accept that fact that it was much more." He did not recall strangling Harvey. He recalled that they drank and "had cocaine" a half-hour to an hour before he killed her.

Asked why he did not just leave, petitioner said, "That's a question that I continually ask myself." Asked what answers he had found, petitioner said that he "lost control," "allowed the anger to basically rule my normal, natural emotions," and with "everything that was going on, I just kept going and couldn't stop." He said, "The total accumulation of factors in my life at that time, every day that I had suppressed and that I had no outlets. I never sought help, and at that time I didn't think I needed help. And over the years these are things that I've been dealing with as far as finding out why--why I basically lost control that day, because in my entire life I have no violence issues." He also said, "[T]he main problem started shortly after my son was taken away from me. He was taken without my knowledge, without her knowledge. So, I would call it kidnapping. And then we went through a custody dispute, flying back and forth to New York, then started working different jobs to pay the bills, and that's when all the difficulties started happening."

Petitioner said that on the night he killed Harvey, they argued about "the finances, me spanking her son, and just the deterioration of my character in general." Prodded by the presiding commissioner, he agreed that Harvey wanted to "split up at that point" and petitioner did not want to, which was also "at the core of the argument" that night, and that it was "a part of me not accepting or respecting what she was saying." The presiding commissioner also asked if, on the day he killed Harvey, petitioner had any injuries other than those he inflicted on himself; petitioner said he did not believe so.

The remainder of the Board's questions focused on petitioner's prison record, prior history, rehabilitative programming, psychological evaluations, and possible parole plans, most of which we have already summarized, as well as on the letters of support from family and friends and his religious faith. A deputy district attorney urged the Board to deny parole, as did Harvey's daughter, and petitioner's attorney argued that it should be granted.

In his closing statement, petitioner said, "I sincerely apologize for the unfortunate circumstances that bring us here today. And we are here because I killed Ms. Harvey. No one deserves to live their last moments as Dollie did. I am truly sorry and ashamed for her suffering and the pain that her family and loved ones have had to endure." He also said, "I alone, am responsible for my thoughts, actions, and decisions, and as I reflect I can see that my anger and selfishness for [sic] the reasons behind these actions." He extended his "deepest and sincerest regards and apologies to Dollie and her loved ones," and said, "[t]he sincere regret and the remorse that is in my heart drives me to make amends whenever and wherever possible."

The Board's Denial of Parole

The presiding commissioner announced the Board's decision to deny parole at the end of the hearing. Its primary reason for doing so was petitioner's lack of insight about a particularly egregious murder, both regarding what occurred and why he committed it. The Board also found evidence for certain unsuitability factors ...


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