(City & County of San Francisco Super. Ct. No. 6239)
The opinion of the court was delivered by: Pollak, J.
Filed 5/18/12, after rehearing
CERTIFIED FOR PUBLICATION
Petitioner James Hunter seeks habeas corpus relief from the denial of parole by respondent California Board of Parole Hearings (the Board). After carefully considering the restatement of the governing principles of review in In re Shaputis (2011) 53 Cal.4th 192 (Shaputis II) we do not find "some evidence" to support the Board's conclusions or an articulation of a rational basis for finding that Hunter would pose an unreasonable risk to public safety if paroled. Therefore, we remand the matter to the Board for reconsideration in light of this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
In 1985, Hunter pled guilty to the first degree murder of Tanya Hamilton and to the concurrent second degree murder of her fetus. He was sentenced to a term of 25 years to life, plus one year for a weapons enhancement and a five-year term for robbery. He entered prison on September 24, 1985, and became eligible for parole on August 18, 2004. On September 10, 2009, the Board denied him parole and set his next parole hearing in seven years.
The circumstances of Hunter's life crime are these. On the evening of October 26-27, 1984, Hunter was snorting and freebasing cocaine with friends. He left the group to buy more cocaine from James Hamlin. Hunter did not find Hamlin, but did find Hamlin's sister, Tanya, at her house. Tanya answered the door in a gown and invited Hunter in. She had not seen her brother all day and was not certain when he would return. Tanya's five-year-old son was asleep on the couch in the living room, so Hunter and Tanya talked in her bedroom. The two had grown up together, had a past romantic relationship and, although Hunter knew that Tanya then had another boyfriend, he stated they "still had feelings for one another."
After approximately half an hour of conversation, Tanya and Hunter had sex. Afterwards, Tanya gave Hunter $10 and he left to purchase some fast food. Hunter knew that Tanya's brother stored his cocaine at her house and, according to Hunter, when he returned he formed a plan to get the drugs. He retrieved a six-inch knife from his car and, he has consistently maintained, brought it into the apartment for the purpose of scaring Tanya into giving him the drugs if she would not sell them to him.
When Hunter demanded the drugs, Tanya refused, claiming she could not "go in his stuff" and not to know where they were anyway. After unsuccessfully attempting to cajole her, he became angry and pushed her onto the bed. According to the account Hunter gave to the Board's psychologist: "As I was leaving, she came up and slapped me across my face and called me a punk or something. She grabbed me in the area of the left eye and gripping me. I had my knife and I turned around and swung. I stuck her in the chest. I slowed down and I just touched her. She started going at me. I had the knife in my hand and used that arm to press against her neck and she was facing away from me. She reached up behind me and grabbed my hair. She was digging her nails into my scalp and pulling my hair real hard. I dropped the knife and reached my hand over real quick and grabbed her by the neck. She was still holding on tight, I squeezed her hard, but she wouldn't let go. I knelt down with her and squeezed her harder. She was gasping. Then I pulled her head down and then it felt like she pulled some of my hair out. I pushed her and I stood up. I still didn't say nothing. She looked back and got up and she had the knife. She came and swung the knife at me. I grabbed her hand and squeezed her hard and got the knife out of her hand. I stuck her on the side somewhere. I turned around and poked her on the side with the knife. I pushed her down and she fell to the floor with her eyes open. That was it." Hunter provided substantially the same account to the Board, except he stated that he attempted to leave after their initial physical altercation. In both accounts, he related that after killing Tanya he found and took the cocaine, along with some jewelry to make it appear like a burglary.
In response to questions from the Board, Hunter stated that Tanya died from "stab wounds" on her left side, possibly from a kidney injury. When the Deputy Commissioner sought to confirm that Hunter had stabbed her on the left side, he replied: "Yeah, the left side. That was definitely the puncture wound. And I hit her in her chest, made a big scratch." When asked how many times he stabbed her, he replied: "I would say, I know in her chest. I'm not for sure if I hit her twice in her chest, but I know I hit her definitely once on her side that I remember." When asked if he verified that she was dead, he said, "I was just swinging. I don't think I thought that through at the time, to make sure she was dead. But it was all a part of the, in the midst of the struggle." When later asked whether he might have inflicted as many as seven stab wounds, Hunter replied: "It could be. I just know of two or three major punctures that I did. I don't know if the rest was scratches or actual stab wounds. I mean, you know, puncture or cuts. I'm not for sure. Is stab wounds considered cuts too? Is it all the same? Then it may be so." Hunter was uncertain whether Tanya's body had any marks from being beaten, but he agreed there was a "great possibility" it did. When asked whether he had strangled her, he replied that he wasn't sure if that had been a cause of death, but admitted he "definitely choked her."
The record explores Hunter's background, including his prior use of drugs, which began at the age of 12 or 13. Initially he smoked marijuana and drank alcohol, but later progressed to smoking cocaine. He denied ever taking drugs intravenously. He considered himself a drug addict. According to his psychological evaluation, Hunter "has learned about addiction and at this time his ability to refrain from future use in the free community is good." In discussing his impulsivity and behavior control, the psychologist indicated Hunter has made considerable progress and currently "displays very little impulsivity."
Prior to the commitment offense, Hunter had no juvenile or adult convictions, but he had been arrested in 1984 for possession of drugs for sale. While incarcerated he received three serious discipline rules violation reports, none of which involved violence. Two were in 1987 for disobeying orders. The most recent occurred in January 2008, when he was disciplined for refusing to report to work. During the disciplinary proceedings for the latest incident, Hunter maintained that he was absent from work because he was sick, not because he was participating in a work stoppage. At the parole hearing, however, he stated that he did not report to work on the day in question because of threats that had been made and he wanted to avoid any type of violence. When asked whether he would make the same decision in the future, he said that he would avoid violence and not go to work.
While incarcerated Hunter has participated in various self-help programs, including Breaking Barriers, Men's Violence Prevention, Common Destiny Lifers, and Alcoholics and Narcotics Anonymous. In response to questions at the parole hearing, he demonstrated his familiarity with specific steps in the 12-step program and explained their application to his personal life. For years he has participated in fundraising for Narcotics Anonymous and Common Destiny. Working with the Prisoners Outreach Program, he helped with a project to provide nylon vests to children. He has taken courses in decision-making and problem-solving, effective communication, and hazardous materials. Since 1994 he has actively participated in Islamic religious activities.
Hunter has earned a vocational certificate in bookbinding and has worked in the book bindery for 11,750 hours. He has completed the Machine Shop program, with specialties in both lathe and metal fabrication. He is also certified as a customer service specialists through the Electronics Technicians Association. Summarizing his work evaluations, including job assignments in janitorial work, metal ...