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In Re James L. Stevenson

January 9, 2013


Super. Ct. No. 203910) Trial Court: Santa Clara County Superior Court Trial Judge: Hon. Andrea Y. Bryan

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

(Santa Clara County

Respondent Rick Hill, Warden at Folsom State Prison, appeals from the superior court's December 9, 2011 order granting inmate James L. Stevenson's petition for writ of habeas corpus and compelling the Board of Parole Hearings (Board) to provide petitioner a new parole consideration hearing.*fn1 Petitioner James L. Stevenson is currently serving an indeterminate life term for a 1998 conviction of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)).*fn2

We reverse the court's order granting habeas relief.


Procedural History

On May 20, 2011, James L. Stevenson filed a petition for writ of habeas corpus challenging the Board's June 17, 2010 denial of parole on the grounds that (1) the Board had found him unsuitable for parole without "some evidence" of current dangerousness and (2) the Board had "failed to provide a nexus or reasoning between the negative factors it found and its conclusion that petitioner is currently dangerous." In support of the first ground, the petition stated among other facts: "The Board claimed my risk assessments were negative, but they placed me in the low/moderate range for risk of violent recidivism, with any elevation beyond low risk being caused by historical factors as explained in the 2009 report." In support of the second ground, the petition stated among other facts: "The Board characterized petitioner's most recent psychological reports as negative, when both assessed petitioner's risk of further violence as low to moderate."

The following documentary evidence was submitted in support of the petition: a transcript of the June 17, 2010 parole consideration hearing, Dr. Black's Comprehensive Risk Assessment prepared for the Board, dated September 21, 2009, Dr. Lehrer's Subsequent Risk Assessment prepared for the Board, dated May 20, 2010, and a superior court order, filed March 25, 2011, vacating a previous parole decision of the Board.*fn3

The superior court issued an order to show cause (OSC), indicating that, in its "experience," an inmate's low to moderate risk for violence if released into the community "has often been based on predomina[nt]ly static factors." The court reasoned as follows: "Because every life term inmate will have static facts elevating his or her assessment over the average person's, it may be the case that 'moderate' essentially means average for the kind of risk being considered. If so, then 'moderate' may not be grounds to overcome the [Penal Code section] 3041 presumption that parole shall normally be set in the average case." The court then observed: "Because none of the above observations are evidence in this case, it will be necessary to receive declarations from experts, and references to academic materials, in order to evaluate the true significant of a 'Low to Moderate Risk' assessment such as Petitioner's."

Respondent filed a return, alleging, among other facts, that "the Board relied on various factors to deny parole, including Stevenson's past criminality, his history of drug and alcohol abuse and sales, his past and present mental state and attitude towards the crime, unfavorable psychological assessments, institutional disciplinary history, his fairly limited institutional programming, and, to some extent, his commitment offense." The return alleged that "some evidence in the record is probative of Stevenson's current risk to the public, and therefore, the Board's decision satisfies due process." He also averred that "the Board is vested with authority to weigh Stevenson's psychological risk assessments in determining his current dangerousness." It also denied that "the Board's decision was arbitrary, capricious, or contrary to law" and denied that the Board failed to provide a nexus between the factors upon which it relied and its conclusion that petitioner presents an unreasonable risk to public safety.

In support of the return, respondent filed an abstract of judgment of the 1997 commitment offense, the probation officer's report for sentencing on that offense, the life prisoner evaluations for the initial parole consideration hearing and subsequent parole consideration hearings, a rules violation report (RVR) charging defendant with destruction of state property in 2002 and the guilty finding, an RVR charging defendant with possession of a controlled substance in 2000 and the guilty finding, an RVR report charging defendant with improper conduct or excessive contact with his wife during a visit in 1999 and the guilty finding, documented custodial counseling (CDC Form 128-A), a redacted comprehensive risk assessment for a different inmate (submitted to show the definitions presently being used by evaluators in their reports), and two professional articles regarding risk assessment.

Petitioner Stevenson filed a denial (traverse) to the return on October 27, 2011. Although the return admitted that the Board relied on various factors to deny parole, it alleged that none of the Board's reasons constituted some evidence of his current dangerousness. It alleged that the 2009 risk evaluation "erred by scoring him a 'moderate' risk on the LS/CMI, when he scored in the 15th percentile, and the instrument stated that a score below the 30th percentile reflects a low risk." It also alleged that "the HCR-20 is not relevant to him because it is normed on a population of involuntarily confined mental patients, to which he is dissimilar because he has no psychiatric history or serious mental disorder." It further averred that petitioner's moderate risk for violence based on the HCR-20 was due to the fact that half of the items considered were historical and "not subject to reduction despite the passage of time." The return stated that the Board's decision was arbitrary and capricious.

In support of the denial, he filed the declaration of Melvin Macomber, Ph.D., a psychologist, regarding CDCR psychological evaluations. Dr. Macomber stated that Level of Service (LS) inventories were developed to assess recidivism potential, not risk of future violence. He explained in his declaration that a "score of 15% of incarcerated offenders is in the low risk range" while a score of "30% to 70%" would be moderate. Dr. Macomber indicated that the use of the HCR-20 to determine potential for violence was inappropriate because the "normative sample was taken from psychiatric populations" and there were "absolutely no validation studies in the literature" for applying that assessment to life term inmates who have spent years in custody and are not part of that psychiatric population. In his view, petitioner's moderate risk of violence based on the HCR-20 is "irrelevant" and "meaningless" since he has no psychiatric history or current psychiatric problems and impliedly does not "resemble[] the normative population . . . ."

By order filed on December 9, 2011, the superior court granted the petition and directed the Board to provide petitioner Stevenson with "a new hearing, comporting with due process, within 100 days" of its order.

The court provided an extensive statement of decision, ultimately concluding that "the Board did not employ the appropriate analytical framework in reaching its decision . . . ." It granted the petition and directed the Board to hold a new hearing that comported with due process within 100 days of its order.

Respondent filed a notice of appeal.


June 17, 2010 Parole Consideration Hearing and Decision

1. Hearing

The Presiding Commissioner described the commitment offense for the record. As the victim was returning to his vehicle at almost midnight on November 22, 1997, he was approached by two men, petitioner and a man later identified as Sanders, wearing dark clothing and ski masks. Sanders shoved a semi-automatic weapon into the victim's ribcage and asked if he had any money. When the victim replied in the negative, petitioner reached into the victim's pocket and removed a wallet and a pager. Petitioner then asked the victim how many people were in his house and whether there was any money in the house. Although the victim said there was no money in the house, petitioner told the victim to take them to his residence and the victim was pushed toward the house.

As the group was walking down the sidewalk and approaching an intersection, a police car was observed proceeding southbound. Petitioner said that "the cops are coming" and turned and began walking away from the victim in a westbound direction. Sanders followed petitioner. Petitioner pulled off his mask and the victim saw petitioner's face. When both perpetrators ran northbound on another street, the victim entered his residence and notified authorities. Responding officers apprehended petitioner and Sanders in different locations.

Petitioner acknowledged that Sanders and he followed the victim from the Bay 101 card club. He stated that Sanders had a nine millimeter gun and they were both wearing masks. Petitioner admitted moving the victim against his will but petitioner denied taking the victim to his residence. Petitioner claimed that he had seen someone looking out a window and had told the victim to move forward because he did not want someone seeing what was going on. He claimed that the victim was moved no more than five feet to an area behind bushes. Petitioner admitted when the police car came, he pulled off his mask, the victim saw his face, and he ran.

Petitioner then acknowledged that he had previously been convicted in 1996 of carrying a loaded firearm in public; he had served some time in county jail and he had been placed on probation for 24 months. He explained that he had been carrying a nine millimeter weapon, which he had purchased on the street, because he was selling drugs. Petitioner indicated that he had not successfully completed his probation and he was subsequently arrested while on probation.

Petitioner confirmed a brief personal history. He graduated from a Louisiana high school in 1988 and joined the Navy. He served for four years and was honorably discharged in 1992. At the time of discharge, petitioner was a stationary engineer at the weapons depot in Concord, California. His first wife, with whom he had a son, had convinced him not to re-enlist. Petitioner then went to work for the Post Office.

Petitioner quit his postal job while he was going through a divorce from his first wife. He had started selling drugs in Oakland, California for extra money and he left the job because the money from dealing drugs had gotten "better and better." This was the beginning of his criminal lifestyle.

Petitioner's preferred parole plan was to live with his mother in Alexandria, Louisiana. In California, petitioner had been accepted into a fellowship, multi-service re-entry program located in Oakland. Another alternative in California was the Another Chance program that provided an alcohol, drug-free living environment in Oakland.

The support letters in petitioner's file included a letter from his mother indicating that she had an at-home nail salon business and also sold tamales. Petitioner's mother indicated that she could get petitioner a job in Louisiana, either onshore or offshore. There was a letter from program called A Place to Start a New Beginning, which stated that petitioner had been accepted as a resident into the program, and a letter from Allied Fellowship Service, which stated that petitioner had been accepted into its re-entry program. There was also a letter from petitioner's brother in Florida who intended to provide emotional and financial support. Lastly, there was a letter from the aunt of petitioner's present wife, asking on behalf of petitioner's second wife for petitioner to be paroled. Petitioner provided the panel with a June 2010 letter from his mother indicating that the family would pay for the cost of his housing.

The Board had also received a letter from the Santa Clara Police Department opposing petitioner's release on parole.

During the review period covering December 2008 to May 2010, petitioner's custody status at Folsom State Prison had been Medium A. He had been assigned to the yard crew. There had been no disciplinary issues.

As to programming, in 2009, petitioner had completed courses in stress management, anger management, and victim awareness. Petitioner indicated that he had also completed a good parenting program more than a month before the hearing but he had not yet received a certificate. Petitioner had provided evidence of participating in AA (Alcoholics Anonymous), dated March 30, 2010. He had an exceptional work report from his work supervisor, dated May 18, 2010, stating that petitioner was a good worker and the most senior yard worker.

According to petitioner, he had completed six units at the Coastline Community College during the previous semester. Due to limits on enrollment, petitioner indicated that he was not currently enrolled and he was required to wait until the following semester to enroll again. He told the panel that he had completed a total of nine units, or three courses, and needed another six units to graduate. The panel advised petitioner to add his transcripts to his central file to show his completed coursework.

Petitioner indicated that he was attending AA/NA (Narcotics Anonymous) meetings, but did not state how often. His main hobby was exercising. He said he was reading a lot of self-help books, but did not name or discuss them. A deputy commissioner advised petitioner to keep a list of the self-help books he read because otherwise no record existed to support his claim. Petitioner indicated that he was generally trying to stay to himself. He indicated that he was no longer participating in a veteran's group on Saturday or attending church on Sunday because he had visitors every weekend.

Petitioner was asked about his poor write-ups when he participated in a vocational auto paint program in about 2000. Petitioner explained that he was then still using drugs, he was then still smoking weed and drinking pruno. Petitioner completed a vocational small engine repair class in 2003.

A deputy commissioner noted that a psychologist had indicated that petitioner had issues with his kidnapping conviction. Dr. Black's September 2009 report had stated that petitioner believed his sentence was unfair because he never meant to kidnap or harm anyone. At the hearing, Petitioner admitted that he had been angry about being convicted of kidnapping because he had "never meant to kidnap someone." But he now understood that, under the law, he had kidnapped someone. He said, "But I'm just mad at myself because I never meant to kidnap no one. You know, if I knew now what I knew then, none of this would have happened."

Petitioner answered affirmatively when asked whether he learned the 12-Steps. He was responsive when asked how he had applied the fourth and tenth steps to his life. He expressed how difficult it was to be denied parole and how a denial makes "[y]ou feel like you want to go back to drugs or you want to go back to drinking." Petitioner indicated the importance of God and said that to him "the power of prayer is every step."

Petitioner was asked about the triggers for his anger. He first stated that he never had anger issues but he had taken the program just to learn more. He then said his trigger was not having enough money and being able to afford the things he wanted to buy for his family or son. When asked how he recognizes his triggers for anger, petitioner said he did not know how to answer that because he did not believe he "ever had an anger issue." He admitted that he may have had a lot of problems but anger was not one of his issues.

Petitioner had not received any serious write-ups since November 2002. As to disciplinary action for destruction of state property in 2002, defendant's explanation was that a line had been tied to the sprinkler in the cell and his cellie had jumped out of bed and accidently grabbed the line and triggered the sprinkler. He said that they had used the line to hang a sheet for their use of the restroom. As to the 2000 disciplinary action, petitioner admitted being found with black tar heroin. He also acknowledged a disciplinary action for excess contact with a visitor in 1999.

Documented counseling indicated that petitioner had to be warned about smoking in 2002 and he had "refused to strip out for a medical exam" in 2001. Petitioner could not recall a "128" (CDC Form 128-A, Custodial Counseling Chrono) for inappropriate behavior with a visitor on September 19, 1999.

Petitioner represented that he had been alcohol and drug-free for almost 10 years. Petitioner indicated that he wished he could apologize to the victim and he said that he wished he could express to him how sorry he was.

At the parole hearing, petitioner acknowledged that, while his present wife was visiting him, a search of his wife's hotel room, executed pursuant to warrant, uncovered drugs. Petitioner stated two other females were staying in the room and asserted that his wife had never tried to bring drugs into prison.

Petitioner indicated that he planned to maintain his sobriety upon release by going to a half-way house where the main focus would be ensuring that he has a good sponsor and by being surrounded by friends and family that want him to stay drug and alcohol free. When petitioner's counsel asked what he would do if he has the desire to drink or smoke marijuana, petitioner said he would probably go to a meeting and he would talk to his sponsor.

The two psychological reports assessing risk, the 2009 report from Dr. Black and the 2010 report from Dr. Lehrer, were mentioned. Extensive portions of ...

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