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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 counseling from a psychologist who was helping Grisso develop coping skills.

D Plans If Released

Grisso had residence offers from two of his sisters, a cousin, and the "PREP transitional housing in Los Angeles." He had a job offer from Blossom Hill Glass, a company owned by his cousin.

E Recent Psychological Assessments

1. May 2009 Kalich Report

Lisa Kalich is a forensic psychologist for the California Department of Corrections and Rehabilitation who authored a report of Grisso in May 2009. For the report, Kalich reviewed Grisso's prison central file and his health records and interviewed him.

The interview took place in May 2009. Kalich described Grisso's initial demeanor as "cooperative" but "somewhat superficially charming and glib." When asked three times to explain how the decision to commit the murder was made, Grisso said he had already taken responsibility for the murder and felt that he was "'on trial'" and refused to answer until the third time he was asked. As the interview progressed, he began to display "some anxiety." "[H]e made several comments suggesting that 'anything [he] says is used against [him].'" On several occasions, he implied or stated he did not want particular statements to appear in the report and felt his statements would be used against him. Kalich told Grisso "that, if he wished to end the interview, he could do so at any time." Grisso then "appeared to become less cooperative over time and began subtly challenging [Kalich]." For example, when she asked him how many times he used marijuana, Grisso asked her how many essays she had written in high school. At the end of the interview he was asked if he wanted to provide any additional information. He described "some of the hardships he ha[d] faced while incarcerated, including being stabbed by another inmate. When [Kalich] questioned [him] about this incident, his demeanor changed markedly. He insisted that the information not be included in the report, as the stabbing had never been reported. When [Kalich] reminded [him] that the information that he provided was not confidential, he became tearful and forcefully told [Kalich], 'Don't put that in there (referring to the report)!' [Kalich] indicated that the information could be used in the report, at which time [Grisso] stated, 'I should've never come' and abruptly exited the room."

In a section entitled "impulsivity/behavioral control," Kalich explained why she was of the opinion Grisso had "ongoing behavioral control difficulties." Grisso lacked behavioral control prior to incarceration, "likely due to his disruptive home life." Early in his incarceration, his behavioral control appeared to decline given his approximately 10 rule violations from 1979 to 1986. Since the late 1980's, his behavior has improved. Despite that improvement, Kalich was "concern[ed] regarding his ability to handle difficult emotions," citing the 2007 board hearing which he left and the current 2009 interview during which he "angrily left the room" as well.

In a section entitled "remorse and insight into life crime," Kalich explained why she was of the opinion Grisso still lacked insight into the murder. While Grisso explained he committed the crime at a time when he had "'no coping skills'" and was looking for Lostpeich's acceptance because he thought Lostpeich was "'the greatest guy on earth,'" Grisso still was unwilling to discuss the crime and tended to blame Lostpeich for the crime. Grisso did not admit he and Lostpeich travelled together for several weeks before being apprehended. When he was caught, Grisso gave police a false name and did not disclose the murder. And he did not disclose Lostpeich's sexual abuse of him until "much later."

In a concluding section entitled "assessment for risk of violence," Kalich was of the opinion Grisso posed a "moderate risk for violence in the free community." Kalich explained that in 1978, just after he was incarcerated, psychological tests suggested Grisso was "prone to 'acting out' under stress and 'disregarding social mores.' Though Mr. Grisso has participated in intensive psychotherapy and self-help programming, these tendencies toward acting out are still evident thirty years later" and then cited Grisso's mutual combat with another inmate in 2001, then lying about it and calling it "horseplay," and walking out of the 2007 parole board hearing and the May 2009 Kalich interview. Grisso's lack of forthrightness and tendency toward manipulation were, to Kalich, "suggestive of criminal thinking." Kalich was of the opinion Grisso's risk of violent recidivism would increase if, among other things, he became involved with an antisocial peer group, he obtained access to a weapon, or found himself without a permanent residence or sufficient income or social support.

2 May 2011 Macomber Report

Melvin Macomber is a forensic clinical psychologist whom Grisso hired to author a report about him in May 2011 in anticipation of the board hearing. For the report, Macomber reviewed Grisso's prison file and his prior psychological examinations, administrated several psychological tests to Grisso, and interviewed him.

Macomber's opinion was that Grisso "posed no risk to society if released. He poses no more risk to society than the average citizen, and in view of his years in custody, dealing with the stresses of incarceration, he probably poses less risk of violence than the average citizen." Macomber found Kalich's evaluation to be "very disturbing and inaccurate." "It is obvious that things did not go well in the interview, as Mr. Grisso felt that he was on trial and that he was being attacked by the psychologist. Mr. Grisso leaving the interview should be seen as self defense rather than as an example of his emotional instability. He actually showed self control and maturity by simply leaving a toxic situation, rather than staying there and arguing with the evaluator. I think that his leaving a hostile situation demonstrates that he has the ability now to leave a dangerous situation rather than be further victimized as he was at the age of 16." (Italics omitted.)

F Parole Board's August 2011 Hearing And Decision

Much of the 2011 hearing focused on Grisso's ability to deal with conflict, with the board noting the difference between making choices in a controlled setting like prison and making choices in the free community. The board stated it was trying to figure out whether Grisso had the tools to be successful in the free community or whether he was going to pose an unreasonable risk of danger, noting he had been imprisoned since he was very young. Grisso admitted he had been to "a few" self-help classes and explained he did not want to attend them simply as a "bargaining chip to gain something." When the board asked him to explain why he had not been involved in more self-help classes such as conflict resolution and dealing with uncomfortable situations, Grisso stated he was "fully immersed in what [he was] doing with Arts in Corrections."*fn2 He "d[id]n't want to talk about a bunch of stuff." He wanted to "actually execute work that benefits somebody else." He was a good listener "[a]s long as it's not gibberish." He explained that his coping strategies were "duck and dodge," avoidance, and withdrawal. He had discussed with his psychologist alternative ways of dealing with the Kalich interview, and his psychologist told him that he should have given Kalich the same chance he would have given anybody else. If he had to deal with the same situation now, he would have left the interview room again. He also addressed why he walked out on the board when it was reading the 2007 decision: his lawyer was gone and the board was "allowed to enter information that was not true into a record."

The board expressed its concern about how Grisso reacted when he was put in an uncomfortable position. Grisso responded that the "only time I really get really uncomfortable is [with] people [who] have my life in their hand."

The board concluded that Grisso was "not suitable for parole and would pose an unreasonable risk of dangerousness to society if released from prison." Its conclusion was based on concerns it had about Grisso's responses and actions, specifying two examples, and Grisso's participation in only a "minimal amount of self-help."

The first example was that in 2007, Grisso angrily walked out of a parole consideration hearing when a commissioner was recounting the facts of the murder. The transcript of that November 2007 hearing showed the following: When the board convened to announce and explain its parole decision, Grisso was present but his attorney was absent. The board had announced it was denying him parole because he would pose an unreasonable risk to public safety, which it based on the cruel and brutal manner of the murder. The board then recounted the details of the murder, including that Grisso and Lostpeich removed the victim's clothing after murdering him, took his money, and then went out to breakfast. It was while the board was recounting these details that Grisso left. One of the commissioners observed that Grisso appeared to be very angry when he left.

The second example was in 2009 when Grisso angrily walked out of the Kalich evaluation when the psychologist and Grisso disagreed about whether a certain act should be in the report.

The board believed these two incidents were similar to Grisso's behavior when he was a teenager that led him to the murder. As the board saw it, "[T]he very first time you started running away caused you to be involved in a murder. Running away again caused you . . . to be angry, get up, walk out of a hearing" and a psychological evaluation.

The board wanted Grisso to "learn how to communicate" and "resolve conflict." It noted that Grisso was involved in only a "minimal amount of self-help" and he had an "unpredictability about him."

G Proceedings Following The Parole Board's August 2011 Decision

Grisso filed a petition for writ of habeas corpus in the trial court challenging his denial of parole. The trial court issued an order to show cause but ultimately denied the petition because there was a "reasoned interpretation connecting the evidence with the ultimate determination of continued dangerousness."

Grisso then filed a petition for writ of habeas corpus in this court relating to the board's denial. We issued an order to show cause.



There Was A Rational Nexus Between The Evidence And The Board's Determination That Grisso Was Currently Dangerous

A Summary Of The Law Governing Review Of Parole Decisions

"The essential question in deciding whether to grant parole is whether the inmate currently poses a threat to public safety. [¶] . . . That question is posed first to the Board and then to the Governor, who draw their 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. [¶] . . . [¶] . . . Judicial review is conducted under the highly deferential 'some evidence' standard. The executive decision of the Board or the Governor is upheld unless it is arbitrary or procedurally flawed. The court reviews the entire record to determine whether a modicum of evidence supports the parole suitability decision. [¶] . . . The reviewing court does not ask whether the inmate is currently dangerous. That question is reserved for the executive branch. Rather, the court considers whether there is a rational nexus between the evidence and the ultimate determination of current dangerousness. The court is not empowered to reweigh the evidence." (In re Shaputis (2011) 53 Cal.4th 192, 220-221) "Only when the evidence reflecting the inmate's present risk to public safety leads to but one conclusion may a court overturn a contrary decision by the [b]oard or the Governor"; in that circumstance, the board's or the Governor's parole denial is arbitrary and capricious, and amounts to a denial of due process. (Id. at p. 211.)

B The Nexus

Grisso contends there was no evidence of a rational nexus between his use of avoidance as an anger management tool and his risk of current dangerousness. Grisso takes too narrow a view of the board's finding and our standard of review. Our job is to look at the evidence and the ultimate determination of current dangerousness and determine whether there is a rational nexus between that evidence and the determination of current dangerousness. (In re Shaputis, supra, 53 Cal.4th at p. 221.) The evidence here was not simply that Grisso had used avoidance as his anger management tool. Rather, there was evidence that he participated in a minimal amount of self-help classes, had no desire to participate in more, and did not have the skills to cope effectively with difficult and dangerous situations out in free society where he had demonstrated an inability to cope and a propensity to become involved in dangerous situations.

The board stressed that self-help classes were important because they taught techniques of conflict resolution and dealing with uncomfortable situations. Grisso admitted that what made him really uncomfortable was when other people had his life in their hands. However, Grisso did not see the need to participate in more self-help classes because, in his view, he did not want to use them as bargaining chips, and he would rather spend his time doing projects such as arts and crafts that directly benefitted other people.

The coping strategies that he did use in prison -- "duck and dodge," avoidance and withdrawal -- had led to ineffective conflict resolution. For example, in the 1980's he took drugs in prison just to fit in. In the 1990's he lied to prison staff and said he was engaged in horseplay when really he and another inmate had gotten in a fight and Grisso inexplicably followed the directive of a third uninvolved inmate to tell the staff it was just horseplay. And, more recently, Grisso failed to resolve situations where he disagreed with people in positions of power, first walking out angrily of the 2007 board hearing and then walking out angrily on Kalich in 2009 when she did not agree to do as he wished.

Grisso's coping strategies in free society had similarly led to ineffective conflict resolution, but with a deadly consequence. As Grisso himself admitted, he had "'no coping skills'" when he was out in free society and committed the murder. He had also been described as a follower. This tendency to follow and an inability to cope was demonstrated even by Grisso's version of the murder. While Grisso ran away from his parents' home because they were abusive, he gave no rational reason of why he later ran away from his grandparents' home as well, saying only he was "not satisfied living with his grandparents." It was as a runaway he met up with Lostpeich, and he followed Lostpeich's directive to commit the murder.*fn3 He had shown minimal changes in these aspects of his personality through the years, as described above in his behavior taking drugs simply to fit in, blindly following the directives of another inmate, and failing to resolve situations that angered him.

There was reason to believe Grisso's coping strategies would continue to be ineffective to resolve conflict if he were released in free society, leading to a dangerous situation. Because Grisso had been incarcerated since age 16, he had not yet held a job in free society, lived on his own, and developed a social network as a free man. As the Kalich report noted, his risk of violent recidivism would likely increase if he became involved in an antisocial peer group, found himself without a permanent residence, insufficient income, or no social support in the community. The board could rationally determine that Grisso might likely find himself in one of these situations without an ability to cope, given that Grisso had been incarcerated since age 16, so he had no work history in free society, no history of successfully living on his own, no chance to develop a social network outside prison while free, all with the overlay of only minimal coping skills.

Indeed, even 35 years after the murder, Grisso was not motivated to acquire conflict resolution skills and still displayed an undeveloped sense of conflict resolution that was demonstrated in a number of exchanges with the board during his most recent interview. For example, when the board asked Grisso whether he could effectively listen to others, Grisso said as long it was not gibberish and continued that there were a lot of things that he would not listen to. When the board questioned Grisso how he would respond to a parole agent who was abrasive and wanted to do him in, Grisso responded, "You just obey. It's simple. You obey." And when the board asked him how he would respond now if faced with the Kalich interview scenario, Grisso said he would respond in the same way, even though he admitted that was not the correct way to handle the situation and that his psychologist had offered him alternative ways of constructively dealing with the situation.

In light of this evidence, the board could rationally determine Grisso did not have the skills to cope or resolve dangerous or difficult situations and was unwilling to develop those skills. Given that in the past his inability to cope and resolve dangerous or difficult situations had led him to commit murder, take drugs, lie to prison staff, and angrily walk out of a psychiatric evaluation and board hearing, the board could rationally determine that Grisso (who had not lived in free society since age 16) would be a danger if released.

II Amendments To The Law Affecting The Timeline For Parole Suitability Hearings Did Not Violate

The Prohibition Against Ex Post Facto Laws

Grisso contends that the 2008 amendments to Penal Code*fn4 section 3041.5 that were applied here and changed the timeline for parole suitability hearings violated the ex post facto clauses of the federal and California Constitutions.*fn5 We disagree based on United States and California Supreme Court precedent.

Both the federal and state Constitutions prohibit ex post facto laws. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) The prohibition is based on the principle that "persons have a right to fair warning of that conduct which will give rise to criminal penalties . . . ." (Marks v. United States (1977) 430 U.S. 188, 191 [51 L.Ed.2d 260, 265].) Thus, laws that "retroactively alter the definition of crimes or increase the punishment for criminal acts" are unconstitutional. (Collins v. Youngblood (1990) 497 U.S. 37, 43 [111 L.Ed.2d 30, 39].)

Earlier versions of section 3041.5 provided for annual parole suitability hearings for inmates who had been denied parole, but gave the board discretion to defer subsequent hearings for at least two years if it was not reasonable to expect parole would be granted before that. (In re Brown (2002) 97 Cal.App.4th 156, 158.) The 2008 amendments gave the board discretion to schedule subsequent suitability hearings 15, 10, 7, 5, or 3 years after a parole denial. (§ 3041.5, subd. (b)(3).) This means that instead of issuing one-to-five-year denials, the board now issues 3-to-15-year denials.

The United States and California Supreme Courts have held that statutes amending procedures to decrease the frequency of parole suitability hearings do not violate the ex post facto clause when applied to inmates convicted preamendment. (Cal. Dept. of Corrections v. Morales (1995) 514 U.S. 499, 503, 504 [131 L.Ed.2d 588, 593-594] [the Court rejected an ex post facto challenge to the constitutionality of a 1981 amendment to section 3041.5 that authorized the board to defer parole suitability hearings for up to three years for prisoners convicted of more than one murder]; In re Jackson (1985) 39 Cal.3d 464, 472 & fn. 7 [the court rejected an ex post facto challenge to the constitutionality of a 1982 amendment to section 3041.5 that authorized the board to schedule biennial rather than annual parole suitability hearings].)

Jackson and Morales control here. The 2008 amendments to section 3041.5, like the amendment at issue in Morales, did not increase the statutory punishment for Grisso's crime. (Cal. Dept. of Corrections v. Morales, supra, 514 U.S. at p. 507 [131 L.Ed.2d at pp. 595-596].) The amendments left his indeterminate sentence and the substantive formula for securing credits untouched, did not affect his minimum eligible parole date, did not change the standards for determining his suitability for parole, and did not "entirely deprive [him] of the right to a parole suitability hearing." (In re Jackson, supra, 39 Cal.3d at p. 473.) The amendments simply "'alter[ed] the method to be followed' in fixing a parole release date under identical substantive standards." (Morales, at p. 508 [131 L.Ed.2d at p. 596].) Such procedural changes are outside the purview of the ex post facto clause. (Jackson, at p. 472.)


The petition for writ of habeas corpus is denied.

We concur: BLEASE , Acting P. J. MURRAY , J.

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