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In Re Erika Schomberg

October 31, 2012


(Super. Ct. No. WHC0000995)

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

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant, the Warden of Valley State Prison for Women, appeals the superior court's order granting respondent Erika Schomberg's petition for writ of habeas corpus. The superior court found the Board of Parole Hearings's (the Board) April 2010 decision issuing a three-year denial of Schomberg's parole was not supported by some evidence. Accordingly, the superior court vacated the Board's April 2010 denial of parole and remanded to the Board for a new suitability hearing. Under the standard as articulated in In re Shaputis (2011) 53 Cal.4th 192, 209 (Shaputis II), we conclude there was some evidence supporting the Board's finding of current dangerousness and reverse the superior court's order granting Schomberg's petition for writ of habeas corpus.


In February 1993, Schomberg's best friend, Trina Werly, was involved in a custody dispute with the father of her child, Gregory Kittle. Werly alleged Kittle had molested the child. Criminal charges were instituted, but were dropped by the district attorney's office after a preliminary hearing. Werly was ordered to share joint custody with Kittle. Because of their shared belief that Kittle was molesting the child, Schomberg and Werly conspired with Aaron Harper to kill Kittle.

Schomberg had been the caretaker for the child and had herself been a victim of sexual abuse. A few days before the murder, Werly came to Schomberg's house in a frantic state of mind. She was carrying a loaded gun and said she was going to kill Kittle. Schomberg dissuaded Werly from killing Kittle herself. Because she wanted the situation to stop and her friend to be "okay," she agreed to help Werly have Kittle killed. Because he had previously bragged about having grenades, Schomberg contacted Harper, with whom she had become pen pals with when he was in prison. After speaking with Werly, Harper agreed to "take care of this" for Werly.

Schomberg, Werly and Harper followed Kittle from his job to his home. Harper walked up to the front door, armed with a shotgun. When Kittle answered the door, Harper shot him in the chest. Kittle was hospitalized for 10 days and then died.

Schomberg pleaded guilty to second degree murder in exchange for a stipulated sentence of 15 years to life. The prosecutor believed the plea was appropriate because in 1988, Schomberg had been involved in a car accident and suffered substantial brain injuries. These injuries resulted in her having difficulties performing normal daily activities. Also, the prosecutor believed the murder would have happened irrespective of Schomberg's participation and that, unlike Werly and Harper, there was no evidence that her motive was financial gain. Werly proceeded to trial, was convicted of voluntary manslaughter and sentenced to a term of 12 years in prison.

Schomberg had no juvenile record. She had one conviction as an adult in 1992 for prostitution. Although her brain injuries made it difficult, she held a number of jobs before the murder.

In prison, Schomberg participated in a variety of self-help programs, including conflict and stress management, narcotics anonymous, victim impact and self-awareness, and alternatives to violence. She also participated in a number of volunteer activities, including the Women's Advisory Council, child abuse prevention and victim services. She completed a range of educational and vocational courses, including hotel and restaurant management, legal studies, personal finance, small business operations and management.

Upon release, Schomberg planned to live with her mother and work at furniture and upholstery repair and, seasonally, in air conditioning and refrigeration repair. She had a letter from Michelle Hofer of Hofer Construction expressing interest in hiring Schomberg and mentoring her in business and real estate.

Also while in prison, Schomberg received nine "128As." A "128A" is a "Custodial Counseling Chrono. When similar minor misconduct recurs after verbal counseling or if documentation of minor misconduct is needed, a description of the misconduct and counseling provided shall be documented on a CDC Form 128-A, Custodial Counseling Chrono." (Cal. Code Regs., tit. 15, § 3312, subd. (a)(2).)

She also received five "115s." A "115" is a "Rules Violation Report. When misconduct is believed to be a violation of law or is not minor in nature, it shall be reported on a CDC Form 115." (Cal. Code Regs., tit. 15, § 3312, subd. (a)(3).)

In 1995, she received a 115 for breaking a room window. In 1996, following a family visit, Schomberg attempted to bring a pair of panties, a package of bubble gum and 100 clear capsules into the prison. She knew it was against the rules to bring the contraband into the prison. Schomberg admitted the charge, was assessed a 30-day credit forfeiture and visits were suspended for six months. In 2001, Schomberg passed a note from one inmate to another. Inside the note were two bindles of heroin and an agreed upon sale price. The matter was referred to the district attorney's office, but was later dismissed. Schomberg was aware she was not supposed to pass notes, but claimed "people do it all the time." She also claimed she was unaware there was heroin in the note. The Board found Schomberg's version of the event was not credible. In 2008, during a random search of her cell locker, a correctional officer found a manufactured tattoo gun with an exposed needle. Schomberg's cellmate admitted the tattoo gun belonged to her. Schomberg was charged with possession of contraband, specifically a tattoo gun. ...

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