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In Re James Grisso On Habeas Corpus

October 23, 2012


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

In re Grisso CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 66332)

Approximately 35 years ago when petitioner James Grisso was 16 years old, he fatally shot acquaintance Anthony Jackson in the chest and back and then took Jackson's belongings. At the time, Grisso was a runaway and had been living in a cabin in Oroville (where the shooting took place) with a man 24 years his senior, Charles Lostpeich. According to Grisso, it was Lostpeich who planned the murder and forced Grisso to execute it. Grisso pled guilty to first degree murder and robbery and was sentenced to seven years to life in prison.

Grisso now petitions this court for a writ of habeas corpus challenging an August 2011 decision by the California Board of Parole Hearings (the board) finding him unsuitable for parole because it believed he posed a current risk of danger to society. The board based its belief on Grisso's failure to communicate and deal with conflict. It noted Grisso had not participated in a lot of self-help programs, and it was troubled by his behavior during two incidents. One was in 2007 when Grisso angrily walked out of a parole consideration hearing when a board member was recounting the facts of the murder. The second was in 2009 when he angrily walked out of a psychological evaluation when the psychologist and Grisso disagreed about whether a certain act should be in the report. The board wanted Grisso to "learn how to communicate" and "resolve conflict" and set his next parole hearing for three years later.

Grisso contends the board's decision should be set aside because: (1) there was no reliable evidence that he currently posed an unreasonable risk of danger to public safety; and (2) the three-year parole denial interval (which in years past was a one-year denial) violated the prohibition against ex post facto laws. We disagree with the first contention in light of the limited gains Grisso had made coping with and resolving difficult and dangerous situations. We disagree with the second contention in light of federal and state Supreme Court precedent finding no ex post facto violation when the interval between parole suitability hearings was increased.


A Grisso's Background Leading Up To The Murder

Grisso was physically abused by his parents and sexually abused by his father. At age eight, Grisso began running away from home. He skipped school regularly as well, so his bruises would not be discovered. He had one misdemeanor adjudication for throwing a smoke bomb. He was sent to a continuation school and then moved in with his grandparents. He ran away from his grandparents' home as well.

B The Murder

While a runaway from his grandparents' home, Grisso met Lostpeich. Grisso and Lostpeich began living together and two weeks later, they invited in the victim for the purpose of killing and robbing him. Once the victim was inside, Grisso pulled a revolver from under the mattress and shot him in the chest. When the victim turned to leave, Grisso shot him in the back. Grisso and Lostpeich wrapped the victim's body in a sleeping bag, put the body in the victim's truck, and threw the body off a bridge. When the body did not land in the water, they went down to the bank, stripped the body of clothing, and pushed it into the water. Afterward, they traveled throughout California in the victim's truck. About two weeks later, Grisso turned himself in to authorities. When Grisso initially was stopped by police, he gave police a false name and did not disclose the murder.

According to Grisso, he was Lostpeich's captive in the cabin and was physically and sexually abused by him. It was Lostpeich's idea to shoot the victim. Grisso did so only because he feared reprisal from Lostpeich if he did not. Grisso did not turn himself in immediately after the crime because he "'never thought of it.'"

C Behavior While Incarcerated

Shortly after being incarcerated in 1979, Grisso married a woman 10 years his senior, but they annulled the marriage after two or three months. When he was 19, he met his second wife. Eight years later, in 1988, they married. They were married for over 20 years, but they divorced because of the strain caused by repeated rescission of his parole release date.*fn1

Grisso had 11 rule violations, the last being a 2001 incident for mutual combat. During that incident, Grisso told prison staff he had been engaging in horseplay with another inmate. However, in 2009, he told a psychologist who was examining him (Lisa Kalich) that the incident was really one in which another inmate grabbed Grisso's music player and then started "spinning him around." Grisso became angry and the two began fighting. When the fight caught the attention of staff, "another inmate threatened them and told them to 'say it was just horsing around.' Mr. Grisso was unsure why the other inmate became involved in the dispute." Grisso's rule violations also included two from the 1980's for taking drugs. He used drugs back then every few months "'to fit in' and 'not be so alien.'"

Grisso received his GED in 1980 in prison. He had an extensive work history while in prison, including as an electrician, plumber, clerk, Braille technician, locksmith, carpenter, and cobbler, and most currently, as an operator in the bakery. He also had training as an underwater welder. He had several commendations for his work ethic and job skills.

While incarcerated, Grisso has taken anger management workshops twice, including one he completed in July 2009, which was three sessions. In 2006, he completed self-help therapy sessions focusing on developing further insight into the murder. As of May 2011, he was receiving periodic ...

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