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In Re

July 20, 2012

IN RE FREDERICK DAVIDSON ON HABEAS CORPUS.


APPEAL from an order of the Superior Court of Los Angeles County, Patricia M. Schnegg, Judge. (Los Angeles County Super. Ct. No. BH008006)

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

CERTIFIED FOR PUBLICATION

Reversed.

This is an appeal by the Board of Parole Hearings (Board) from a Superior Court order granting petitioner's application for a writ of habeas corpus. The writ was granted after the Board denied parole to Frederick Davidson, ordering instead a three-year further period of incarceration. Because we find "some evidence" to support the Board's conclusion that Davidson's release at this time would present an unreasonable risk to public safety, we reverse the ruling of the Superior Court.

FACTUAL AND PROCEDURAL SUMMARY

Davidson was convicted of second degree murder. (Pen. Code, § 187 et. seq., the "commitment offense"; all further statutory citations are to this code unless another is identified.) The conviction was based on his driving while intoxicated, resulting in a collision in which the driver of another car was killed. (See People v. Watson (1981) 30 Cal.3d 290, 300, the leading decision on this theory of second degree murder.) We affirmed the conviction in a nonpublished opinion (People v. Davidson (Dec. 9, 1997, B109476)), and we take our account of the crime from the factual summary in that opinion.

Davidson had been drinking at a bar and pool hall in January 1996; where he consumed at least six beers over a period of about three hours. His speech was slurred, his voice loud, and he had problems walking. He was stumbling and disoriented, and bumped into a wall. He was "definitely intoxicated." One of the servers refused to serve him more alcohol and told him that he should not be driving. Nevertheless, and despite the warning, he got into his car with his teenage son, and drove off. It was then about 9:00 p.m. in the evening. He resumed drinking after leaving the bar. Later that evening, while driving at a high speed, Davidson failed to stop at a posted stop sign at an intersection. He collided broadside with a car driven by Luther Wafford, who died as a result. Analysis of a blood sample taken at 12:43 a.m. the next morning showed Davidson had a blood alcohol level of .29 percent, which is close to quadruple the legal limit of .08 percent. (Veh. Code, § 23152, subd. (b); driving with a blood alcohol level of .08 percent or higher is per se illegal.)

Davidson is an alcoholic. This was not his first conviction for driving under the influence. He had been convicted in 1993 for driving under the influence, causing injury; at that time his blood alcohol reading was .34 percent. His license was still suspended in 1996, when the commitment offense occurred. He had been convicted, twice, in Oregon for driving under the influence (in 1986 and 1987). There also were other occasions when Davidson drove while under the influence, but was not arrested. We affirmed Davidson's conviction, finding the evidence amply supported the finding of implied malice. Davidson was sentenced to state prison for an indeterminate term of 15 years to life. He was 46 years old at the time.

In March 2010, when Davidson was 60 years old, he submitted to a detailed evaluation by a prison psychologist. The reviewer, S. Thacker, Ph.D., concluded that Davidson had realistic and feasible parole plans. Davidson indicated that he had been accepted into two transitional release programs. One of them, the New Life Institute in Canyon Country, is a residential program involving work, Bible studies, and participation in 12-step programming. The other, Hacienda Christian Life Campus, has a facility in Parris, California. Davidson is active in Alcoholic Anonymous (AA) programs and intends to remain so for the indefinite future. He plans to lead a sober lifestyle with persons who do the same, and to remain active in Bible studies and Christian friendships. He hopes to become a substance abuse counselor in one of the programs that has accepted him.

Davidson previously had applied for parole. The Board had issued a three-year parole denial at that time. In connection with that application, he had been diagnosed as alcohol dependant. The present evaluator found that Davidson had reflected on his life and character, and had recognized that his previous approach in dealing with emotions by drinking alcohol was ineffective. He acknowledged his "past immaturity, selfishness and irresponsibility", particularly with respect to his wife and children. He expressed regret and remorse.

Describing the commitment offense to Dr. Thacker, Davidson said that he "had a short in [his] headlights and [he was] pretty sure they had gone out." He said that he must have passed out before failing to heed the stop sign. He was traveling at 55 miles per hour, slammed on the brakes, but it was too late. Nevertheless, he acknowledged that the crime was entirely his fault; it would not have happened if he "had been doing the right thing." Asked how he would keep out of trouble in the future, he said that he would not "break the law, will not drink." As for driving, he said that he could still ride a bicycle and probably would get his drivers license back eventually.

As Davidson described the commitment offense at the parole hearing, "I went out, and I got in the car, and I went out with my son. And I went to a bar, pool hall in Lancaster, California. I had too much to drink. I was not, I didn't have a program in place to realize the depth of my disease. I didn't really understand it myself, and I got drunk, and I went out, and I got into an accident. And the collision cost the life of Luther Wafford, and that's why I'm here today."

As to remorse and insight, the evaluator noted that these are abstract concepts, which do not lend themselves to "operationalized definition or measurement." Davidson took full responsibility for the crime, which he attributed to his own immaturity and refusal to accept the fact that he could not control his drinking. He said he had been caring for his father, then grieving his father's death, and that these were stressors that contributed to the drinking.

While in prison Davidson continuously participated in AA programs, and completed several educational and self-help programs. During the more than 13 years before his recent parole hearing, he had never received a "115" citation (for violation of law under circumstances that are not minor in nature) and received only four 128A's (for minor infractions). Davidson also completed a "vocation" (training program) in textile and garment making, earned ...


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