Original proceeding on a petition for writ of habeas corpus. Relief granted. (Super. Ct. No. HC20748, SCD135808)
The opinion of the court was delivered by: Huffman, Acting P. J.
CERTIFIED FOR PUBLICATION
In this case, we interpret Penal Code*fn1 section 3550 and review the Board of Parole Hearing's (Board) denial of medical parole for Steven C. Martinez under that statute. This case presents a matter of first impression.
Martinez, an inmate in California State Prison, Corcoran, is a quadriplegic who requires 24-hour care. The Board denied him medical parole under section 3550. Section 3550, subdivision (a) provides the basic requirements for medical parole:
"Notwithstanding any other provision of law, except as provided in subdivision (b), any prisoner who the head physician of the institution where the prisoner is located determines, as provided in this section, is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care, and that incapacitation did not exist at the time of sentencing, shall be granted medical parole if the Board of Parole Hearings determines that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety."
Martinez brings this petition for writ of habeas corpus, challenging the Board's decision. He contends the Board abused its discretion when it found him to be a threat to public safety if granted medical parole. He asserts, considering his medical condition, the Board could not find that he would reasonably pose a threat to public safety if released. Martinez also argues the Board failed to carry out its mandatory duties under section 3550 because it did not establish satisfactory conditions for his medical parole.
In response, the Attorney General insists Martinez's despicable commitment crimes, his history of disciplinary problems in prison consisting primarily of disparaging comments and threats against female prison nurses, and his capability to use others to harm people provide "some evidence" to support the Board's decision.
We grant the requested relief because we conclude that there is no evidence showing that the conditions of Martinez's release would reasonably pose a threat to public safety. As a quadriplegic, the only way Martinez would be able to harm someone is by convincing another to do his bidding. The record does not contain any evidence showing that the conditions of Martinez's parole would provide an environment wherein he could reasonably pose a threat to public safety by convincing another person to hurt someone on his behalf. Put differently, "some evidence" must demonstrate that the conditions of his medical parole would create a situation wherein Martinez would be reasonably capable of using others to achieve any malevolent goals he may have, namely harming another. Here, the record falls far short of this essential requirement.
FACTUAL AND PROCEDURAL BACKGROUND
Where appropriate, we borrow portions of the factual and procedural history from Martinez's most recent appeal. (See Martinez v. Board of Parole Hearings (2010) 183 Cal.App.4th 578.)
Martinez's Commitment Crimes and Prison Injury
"In March 1998, Martinez drove his car into two young women, pinning one beneath the vehicle. After grabbing the incapacitated woman by the throat and punching her in the face, breaking her nose, Martinez placed her in the back seat of the car and drove to a secluded location, where he forcibly committed various sexual acts upon the battered and bloodied woman. Convicted of forcible rape, forcible oral copulation, rape with a foreign object, assault with a deadly weapon, battery causing serious injury, hit and run causing injury, and kidnapping, he was sentenced to 165 years to life in state prison. The sentence was later reduced to 157 years to life." (Martinez v. Board of Parole Hearings, supra, 183 Cal.App.4th at p. 583.)
"In February 2001, while serving his sentence at Centinela State Prison, Martinez was attacked by two inmates and was stabbed in the neck. The knife wound lacerated Martinez's spinal cord, causing instant quadriplegia. He 'has no motor power whatsoever in his arms or legs,' 'is only able to move his head to a very minimal degree,' and does not have any control over his bowel or bladder movements. He will require '24-hour a day complete care for the rest of his life and has no chance of regaining any motor skills.' " (Martinez v. Board of Parole Hearings, supra, 183 Cal.App.4th at p. 583.)
The Board's Refusal To Recommend Recall For Martinez
In 2008, the Board declined to refer Martinez to the sentencing trial court for recall under section 1170. In response, Martinez filed a complaint for injunctive and declaratory relief and a petition for writ of mandate, asking the superior court to compel the Board to recommend recall of Martinez's sentence. (Martinez v. Board of Parole Hearings, supra, 183 Cal.App.4th at p. 585.) The court granted relief, and the Board appealed the ensuing judgment. The Third District Court of Appeal reversed the judgment in part, concluding that "some evidence" supported the Board's implied finding that, if released, Martinez could pose a threat to public safety. (Id. at p. 597.)
The Medical Parole Proceeding
On May 24, 2011, the Board held a medical parole consideration hearing for Martinez. Martinez did not participate personally, but was represented by counsel during the hearing. The Board began by reciting Martinez's commitment crimes and noted that his medical condition satisfied the criteria for eligibility for medical parole. It then reviewed Martinez's many disciplinary issues, each memorialized in a rules violation report (CDC 115).
On one occasion, Martinez received a CDC 115 on March 1, 2003, after his interaction with a nurse and correctional officer while he was being fed. As the nurse was attempting to feed Martinez, he berated the correctional officer by saying: "You're a jackass. You're an asshole, a piece of shit." After this verbal attack, the nurse and correctional officer left Martinez, but they returned a few minutes later to finish feeding him. Martinez continued his verbal barrage: "You don't order anyone, jackass. I can do whatever I want. You are turning red. This pisses you off, don't it, asshole." When the correctional officer ordered Martinez to stop being disrespectful, Martinez responded by telling him, "You don't order me. You don't understand how important I am, do you, jackass. I'm going to sue you because you are so stupid you make it easy."*fn2
In 2005, Martinez received a CDC 115 for behavior that could lead to violence. He was sitting on the toilet and asked for assistance. Two nurses responded, but Martinez refused their help and became disruptive. Martinez said, "You are incompetent and stupid. If you're not going to do what I say, then spin. You're an idiot, an asshole, and stupid. You obviously don't know who you're dealing with. You're one of the real smart ones, aren't you. You're lucky I can't walk." When the nurse asked Martinez what he meant, he replied, "I'd kick your ass."
In 2006, Martinez received another CDC 115 for being disrespectful to a nurse. This time he called the nurse an "obnoxious ghetto rat" and threatened to urinate on the hover lift if the nurse put her foot on it again.
In August 2009, he received a CDC 115 for disrespectful language. When a nurse ignored his comments, he stated, "Oh, you're ignoring me now after telling me you live in an apartment. By the way, did you tell your husband that you invited me to your apartment?" The nurse left the area, but later returned, which prompted Martinez to say, "The clock is ticking. I'm working on it. Next month is your last month, and you will be bye-bye."
Most recently, in February 2010, Martinez received a CDC 115 for again being belligerent toward staff. During this occasion, he told the nurse that "I don't have any respect for you. You're stupid, nasty, dirty, and disgusting."
In all, Martinez received 10 CDC 115s from 2003 through 2010. Seven of the CDC 115s involved Martinez being disrespectful toward staff. He also received a CDC 115 for a violation of grooming standards, one for behavior that could lead to violence, and another for over familiarity with staff. The majority of the rules report violations involved female staff.
The Board also observed Martinez received over 40 disciplinary chronos (CDC 128). For example, Martinez received a CDC 128 when he told a nurse, "I'll be out of here real soon, and you won't like what happens when I do get out. You saw I got [specific correctional officer] out of here. I no longer have to look at him, hear him, or smell him. I was the one who got rid of him. If I can do that, you won't like what I can do after I get out of here. I'm taking the state for every penny I can." Many of the CDC 128s involved disputes between Martinez and a specific correctional officer. On one occasion, Martinez apparently told the correctional officer that when he won his money and got out of prison, the correctional officer better watch out for his wife because he was going to visit her. The Board commented it was "obvious" there was some "animosity" between Martinez and the subject correctional officer.
During the medical parole hearing, Martinez's counsel objected to the CDC 115s. He argued the CDC 115s were unreliable and that Martinez had appealed most, if not all, of them. Martinez's counsel did not attempt to justify Martinez's commitment crimes, but stressed that Martinez did not receive any CDC 115s prior to becoming a quadriplegic. He admitted Martinez's behavior while incarcerated was far from perfect, but emphasized the root of his behavior problems was Martinez's total dependence on prison staff for all his needs, which were not being adequately met. In other words, Martinez's counsel asserted Martinez lashed out at prison staff to protect himself because he was receiving poor treatment and being abused by prison staff. Martinez also was suffering from posttraumatic stress disorder, which negatively affected his behavior.
Martinez's attorney presented the Board with a packet of material, which the Board marked as "Exhibit 1." The packet included a letter to Laura Schaper, SRNIII, Inpatient Nursing Services from the John D. Clarich Memorial Hospital Nursing Staff. The letter included over 40 signatures. The Board read the letter into the record. It stated in pertinent part:
"The acceptance of [inmate] Martinez by CSP [Corcoran] per Sacramento four years ago has put much undue stress on the staff. His conditions of care are unmatched by any other inmate/patient. [¶] . . . [¶] . . . No other patient ever receives his own nurse. Now two licensed personnel and a supervisor have to be present each time his cell is entered because of his constant threats to the staff. This is causing a hostile work environment. How much farther will we continue to bend? His offense was against women, and he continues to offend, only now it is psychological rape and the staff are his victims. . . . [Inmate] Martinez has repeatedly terrorized and threatened the staff with the loss of their jobs and homes. [¶] . . . [¶] It is time that all special and unnecessary treatment be stopped immediately. . . . No society in the world should allow this kind of treatment to continue. No prisoner in the state, country or world should ever receive the special treatment this [inmate] receives. . . ."
Martinez's counsel also gave examples of Martinez's poor treatment in prison. He explained that Martinez was rushed to the hospital because he was improperly medicated. Also, Martinez's counsel noted that Martinez had recently developed a stage three pressure ulcer.
A deputy district attorney provided closing remarks to the Board, emphasizing that the district attorney's office opposed medical parole for Martinez. He discussed Martinez's commitment crimes, stating that Martinez "has shown that he is willing to use the most deplorable, forcible and hideous acts against females that are ever imaginable." The deputy district attorney linked the circumstances of Martinez's commitment crime with his criminal history*fn3 and record of harassing prison staff to underscore that Martinez's medical parole would present a reasonable threat to public safety. He also read extensively from Martinez v. Board of Parole Hearings, supra, 183 Cal.App.4th 578 to fortify his conclusion that Martinez should not be released.
In response to the deputy district attorney's remarks, Martinez's attorney stressed that Martinez's primary concern is his health, and because of his condition, he does not present a reasonable threat to the public if released. He further underscored that Martinez was precisely the type of inmate section 3550 was meant to cover.
After taking a "long time" to make a decision and acknowledging that Martinez presented a "tough decision," the Board decided "the condition under which the inmate would be released poses an unreasonable threat to public safety." The Board based its decision on Martinez's record of harassing and threatening prison staff and his commitment crimes. The Board reasoned, "Mr. Martinez's pattern of conduct, notwithstanding his physical condition, indicates to this Panel that he remains a violent person who is capable of using others to carry out his threats, and that he would also be a public safety threat to those who attend him outside the prison walls."
Martinez subsequently filed a petition for a writ of habeas corpus in superior court. The superior court denied the petition. Martinez then filed a petition for a writ of habeas corpus in this court. We issued an order to show cause why relief should not be granted. The Attorney General filed a return, and Martinez filed a traverse.