Trial Court: Humboldt County Superior Court Trial Judge: Hon. Marilyn B. Miles
The opinion of the court was delivered by: Haerle, J.
CERTIFIED FOR PUBLICATION
James Charles Stoneroad, a life-term inmate of state prison convicted of second degree murder, petitions for a writ of habeas corpus from the decision of the Board of Parole Hearings (the Board) denying him parole. Petitioner argues that the decision denying parole is arbitrary and unsupported by some evidence of his current dangerousness. He additionally urges that the gravity of his commitment offense can no longer be used to find him unsuitable for parole because he has already served more prison time than the maximum base term prescribed by the Board's regulations for that offense.*fn1
We reject the latter argument but accept the former. As we explain, the Board's decision does not reflect due consideration of numerous statutory and regulatory factors bearing upon suitability for parole and the evidence the Board relied upon does not rationally indicate petitioner is currently dangerous. Because the decision violates due process, we shall grant the petition and remand the matter to the Board for further proceedings pursuant to In re Prather (2010) 50 Cal.4th 238 (Prather).
In 1987, a jury found petitioner guilty of the second degree murder of Michael Kane, the 17-year-old son of petitioner's long-time girlfriend, Mildred Irwin, and of the attempted murder of Irwin. (Pen. Code, §§ 187, 664/187.) He was sentenced to a term of 15 years to life for the murder of Kane and an additional 11-year consecutive term for the attempted murder of Irwin and weapons enhancements. Petitioner entered state prison on July 1, 1987. He became eligible for parole on March 9, 2002, and is currently serving his 26th year in state prison.*fn2
In 2006, the Board conducted a subsequent parole suitability hearing and denied petitioner parole. In 2010, the Board again denied petitioner parole and scheduled his next parole hearing to occur in three years. The Board's 2010 rulings are the subject of this petition.
Prior to his imprisonment, petitioner had a long-standing problem with alcohol that is inseparable from any account of his life and the commitment offenses. According to a 1987 probation department report, petitioner began drinking when he was 12 or 13 years old, and was drinking regularly by the time he was 16. Petitioner was a "binge drinker," consuming alcohol until he was extremely intoxicated and sometimes experiencing "blackouts." As we will discuss, petitioner murdered Kane and attempted to murder Irwin after consuming large amounts of vodka, and has stated through the years since that he has very limited or no memories of these crimes.
Petitioner, a Native American, was born in Pawnee, Oklahoma, in 1946, the seventh of 10 children. He drank in part to relieve a lot of "inner pain" from the emotional and physical abuse he endured as a child. His mother abandoned him when he was a baby and his great-grandmother raised him until he was five, when his mother and father took him back. After this he was "spoiled" and his favored treatment caused resentment among his siblings, particularly his older brother, who repeatedly beat petitioner, and threw him down and choked him until petitioner passed out.
Petitioner dropped out of high school after his sophomore year and left home after a particularly severe altercation with his brother, John. He completed some college courses despite his lack of a high school degree. The probation officer reported that petitioner had falsely claimed in the past to have a Bachelor's and a Master's degree (as well as to be a veteran of the Vietnam War). Petitioner acknowledged to the Board that he had not yet obtained his GED, and the Board noted that he scored a grade placement level of 7.6 on a TABE test, although he had tested higher in the past.
Petitioner was married and divorced twice before the commitment offenses, the marriages resulting in the birth of four children. Both divorces were at least in part due to his continued drinking problems, even though he completed a treatment program during his second marriage. He told the probation officer that his second wife claimed he was abusive towards her, but that he knocked her down only once, when he was sober. A 2001 evaluation reported that petitioner was married a third time in 1991, while he was in prison, but a subsequent evaluation stated that he stopped having contact with this wife in 1996. Petitioner told the Board that he had a "significant other" at the time of the hearing.
Petitioner has no juvenile record and no significant adult criminal record. In 1964, he was convicted of public intoxication and fined $14, and in 1966 he was convicted of being drunk in public and disorderly conduct, for which he was fined $15. In 1972, he was charged with assault with a deadly weapon, but the charge was dismissed due to insufficient evidence. Petitioner told the Board he was sober at the time of the assault incident, which he contended was an act of self-defense against a brother-in-law who had been drinking.
In 1973, petitioner was charged with first degree murder, but found not guilty by reason of self-defense. This incident occurred when he and a group of American Indian Movement members had been drinking and he began to argue with one of the men. The man shot at petitioner and, as he threatened to shoot again, petitioner fired a shot to scare him but accidentally hit him, causing his death.
Irwin met petitioner in 1983 at a residential alcohol treatment program for Native Americans in Oakland. Petitioner was a program resident who later helped establish and operate a youth group for the program. He was employed for about six months in 1984 as the executive director of the Intertribal Friendship House in Oakland. Petitioner had also worked as a marine machinist, a long haul truck driver, and a technical writer, and had done surveying and ranch work.
According to Irwin, she and petitioner began living together in October 1984. Petitioner continued to binge drink during their relationship. He became "mean" when he drank and normally stayed away from home. She said he twice acted violently towards her, both times while under the influence, hitting her the first time and swinging at her the second. The probation officer reported that petitioner left his position at the Intertribal Friendship House to attend an alcohol treatment program "after hitting victim Irwin during an alcoholic blackout." He completed the program, but soon returned to binge drinking.
Irwin said she and petitioner moved to Hoopa in February 1985 so she could work in a high stakes bingo operation. Petitioner found people in Hoopa "very clannish and stand-offish," so he "became more and more isolated and started drinking more."
For some months in 1985, petitioner was also employed at a high stakes bingo operation in Hoopa, but he lost this job when he resumed drinking and ceased working, which left him without income. Petitioner told the Board he was terminated because he left the area to participate in a treatment program; he returned to Hoopa "determined to make a go of it . . . but then after I got back up there, everybody more or less turned away from me again. And I was without employment, in a strange place, isolated, and I started drinking again." A psychiatric evaluator reported at petitioner's 1987 sentencing hearing that, because petitioner was unemployed and financially reliant on Irwin, he became very depressed and began hearing voices taunting and berating him, which caused him to feel angry and fearful.
Irwin told the probation officer that in early 1986 she told petitioner she did not want to "live that way" anymore. Petitioner made plans to move to Montana, where he could find employment. He was packed and ready to leave when Irwin's mother suffered a stroke. Petitioner stayed and he, Irwin, and Kane moved into the mother's home so Irwin could care for her mother. Irwin and petitioner did not address their issues again, and Irwin spent most of her energy dealing with her mother.
According to accounts in the record, on April 7, 1986, Irwin went to work while petitioner stayed home and drank two and a half pints of vodka between 5:00 p.m. and 7:00 p.m. Kane came home around 8:00 or 8:30 p.m. and eventually went to bed. Irwin returned home at about midnight and found petitioner in a storage room, where he had said he would sleep that night.
About 3:00 a.m., petitioner asked Irwin to come out of her mother's bedroom, but Irwin said she was busy with her mother. Petitioner left and went into a bedroom occupied by Kane. Irwin heard Kane say, "What's the matter with you, no," and she went to investigate. She saw that petitioner was holding a knife and Kane had been stabbed in the chest. The three struggled over the knife, and Irwin's hand was cut badly. Petitioner told Kane, "Your mother is next."
Irwin and Kane broke away from petitioner and ran down the hall. Irwin went to call the police while Kane lay on the floor. Before Irwin could call, petitioner took a rifle out of a cabinet and began loading it. Irwin fought with petitioner over the gun, but petitioner hit her in the head with it; she ran out the back door as petitioner fired a shot at her that missed. Petitioner loaded another rifle and shot Kane, who bled to death.
The police found petitioner sleeping in a storage room. He made no attempt to evade arrest and appeared unable to understand why he was being arrested. Petitioner told police he had no memory of the incident because he was extremely intoxicated. A blood sample taken from him at 8:55 a.m. that morning showed a blood-alcohol content of .15. In taped statements to police, petitioner said he could not remember stabbing Kane or shooting at anyone, but that "I must have shot him," that he got along well with Kane and was close to Irwin, and that, "if this is what I did to someone I love, I deserve to be locked up."
Irwin told the probation officer that she was not aware of anything that prompted petitioner's actions. Petitioner had been supportive and helpful about Irwin's mother, and had a "friendly" relationship with Kane.
Petitioner told the probation officer he committed the offenses while under the influence and had only a "fragmented" memory of them at best. The probation officer wrote that reports and evaluations tended to support this claim, suggesting petitioner was unable to exercise his " 'customary social judgment' " and quite possibly did not consciously harbor any ill intent towards Irwin or Kane. He also appeared to be "quite remorseful." Believing he deserved punishment, petitioner declined to appeal his conviction.*fn3
Petitioner's Prison History
As respondent acknowledges, petitioner has an exemplary prison history; his only disciplinary citation was for "leaving an unattended hotpot in his cell" in 1990. He was housed in the general population and had a classification score of 19 (indicating a very low security risk) at the time of the hearing. He had paid his restitution in full, he told the Board, to "start living up to the responsibilities" he had.
Along with his self-help programming, which we later describe, petitioner completed vocational training in print technology in December 2009. He worked for many years as an institutional clerk and received numerous positive "chronos"*fn4 regarding his work and programming.
The record contains several psychological evaluations of petitioner:
In 1987, Albert Globus, M.D., a psychiatrist, evaluated petitioner at the request of the sentencing court. His report described petitioner's long history of depression that started in childhood and prior history of amnestic episodes or "blackouts," during which he at times became violent. He experienced such an episode the night of the commitment offenses, which resulted in "almost automatic aggressive behavior" performed "in a rote fashion just as a pianist plays without thinking of each particular note." Petitioner's behaviors were fostered by his chronic and severe depression, delusional experiences at the time, and passive-aggressive personality style. His violent conduct would not have taken place but for his drinking a large quantity of vodka, which blocked his capacity to exercise his customary social judgment.
Concluding that petitioner's delusions were "suggestive of a clinically significant depression," Dr. Globus noted that petitioner' s statements to the police after his arrest were not calculated "to relieve him of responsibility for the crime," but "suggest that he is anxious to accept that responsibility and has concluded that he is responsible, even though he has no specific memory of the shooting. He often states that he is willing to pay the price for his acts and, what is more, he must have done it because no one else was there. This would suggest that he does not have a clear memory of the events even though there is some discrepancy over time in his account of the instant offense. Needless to say, it is difficult for any individual to separate out the actual experience of an event from the subsequent accounts of it. This is particularly true in someone who was intoxicated or under the effects of an amnestic episode at the time."
1997 Psychological Evaluation
A 1997 evaluation by Senior Psychologist Bruce M. Bakeman reported that petitioner was of normal affect and intellectual functioning and appeared to have much better insight and judgment now that he was sober. Petitioner reported he had no antipathy towards Kane, no memory of the murder, and had been drinking heavily immediately before the commitment offenses. Dr. Bakeman concluded that, but for his drinking, petitioner would not have committed the offenses, his level of dangerousness was likely to be less than for an average inmate, and that if released "his level of dangerousness is likely to be less now than for the average inmate." He also recommended that "[c]onditions for parole should include no alcohol."
2001 Psychological Evaluations
The 2001 evaluation by clinical psychologist Clif Leonard stated that petitioner functioned normally, "demonstrated considerable insight into himself, and spoke of the last several years in particular as having been quite productive of his understanding of some of the issues involved in his crime, while still recognizing that at heart the crime remains a mystery to him."
Petitioner denied any history of physical abuse as a perpetrator or victim, but acknowledged he was the "butt of some cruelty" from his older brother because of his closeness with his great-grandmother and the extra attention he received from his mother. He referred to his history of drinking and blackouts, completion of "at least five" treatment programs, the amount he thought he drank the day of the commitment offenses, and said alcohol was a "catalyst," but not to blame, for his actions. He recalled very little about the offenses, had no hostility towards Kane, was "completely baffled" by and had "never made sense" of his "bizarre act," and did not at the time seem concerned with what explanation could be attached to it because that would not diminish the harm he had done or the pain he felt.
Petitioner was not then involved with Alcoholics Anonymous (AA), but had been participating in a similar alcohol and drug abuse program targeted at Native Americans sponsored by his Native American church. He was willing to participate in AA as a condition of parole, especially a group sensitive to Native Americans. Based upon petitioner's description of his vocational and other plans if granted release, Dr. Leonard felt petitioner's plans were consistent with his Central file and the nature of "his involvement with people outside the prison while he is in prison" and "seem quite realistic." Dr. Leonard noted that petitioner has no CDC-115 violations, has "programmed successfully in all areas," "has reduced his classification scores to [zero] since 1997," "[h]is Central file is replete with many commendations," and petitioner had no "negative chronos since 1990."
Turning to the crucial question of petitioner's current dangerousness, Dr. Leonard concluded, as did Dr. Bakeman, that, if released, petitioner's "violence potential" would be "no more than that of the average citizen in the community, or perhaps even a little bit less, so long as he remains sober and involved in supportive relationships of the sort he reports having an abundance of now." Dr. Leonard also felt the Native American drug program in which petitioner was then participating was "the functional equivalent for him of involvement with Alcoholics Anonymous for a non-Native American," an opinion supported by other evidence.*fn5 The evaluator recommended mandatory post release participation in both programs.
A Life Prisoner Evaluation Report of petitioner by correctional staff also prepared in 2001 made a similar assessment: "Stoneroad's propensity for criminal behavior occurs only when he is drinking alcohol. In that sense, Stoneroad obviously poses a degree of threat and potential for acting out. However, if one considers Inmate Stoneroad's obvious insight into how his crime came about, his recognition of the low self-esteem and inner turmoil he now has faced, and his acceptance of his need to continue to strengthen his coping skills, Stoneroad would pose a low degree of threat if released. Stoneroad could probably deal with the stressors of employment, residence and so forth. Stoneroad would be more capable of this given a date further in the future." The 2001 Life Prisoner Evaluation also noted petitioner's "quite frank" observation that he was not then ready for parole. "He stated that, naturally as a lifer inmate, he would want his freedom. But logically speaking, he feels that he is not yet finished with his spiritual development. He recognizes that he has just recently come into who he truly is." Noting that petitioner had long participated in Native American sweat lodge ceremonies, the report expressed the belief that "his involvement in his culture has greatly benefitted the inmate." The report also stated that petitioner "expressed genuine remorse," has "shown humility and yet has also shown promise in the 'reclamation of hope.' "
2009 Psychological Evaluation
The 15-page Comprehensive Risk Assessment prepared in 2009 by forensic psychologist Richard Hayward is consistent with the earlier reports of Drs. Bakeman and Leonard and the 2001 Life Prisoner Evaluation. Petitioner "acknowledged responsibility for the offense and expressed remorse following his arrest and throughout his incarceration." Petitioner knew "his actions were devastating to the family and the local community" and "added that he never appealed his case because he felt that he belonged in prison." With respect to petitioner's ability to refrain from future use of alcohol in the free community, Dr. Hayward observed that petitioner started participating in AA in 2006, but had been participating in the Native American Spiritual Circle, which also addresses substance abuse, since 1995. Petitioner acknowledged his drinking problems and was familiar with the 12 steps, which he described as "similar to the Native American steps for following the spiritual path in life." He described how he has incorporated these spiritual steps into his daily life and how they have improved his relationships with other people."
Noting that petitioner "displayed seriously impaired impulse control at the time of the commitment offense," Dr. Hayward saw no signs "indicating impairment of impulse control or judgment" at the present time. He also felt that, "during his incarceration, Mr. Stoneroad has gained insight into several of the factors that contributed to the offense, including his severe abuse of alcohol." Although petitioner had somewhat less insight into the reasons for his rage at the time of the offense, he is aware of his inability "to resolve or verbally communicate the anger that he felt as a result of abandonment by his mother and the abuse from his older brother" and "aware that he typically suppressed his anger but occasionally released it in a rage when he was severely intoxicated." Dr. Hayward felt petitioner "currently displays an improved ability to communicate his feelings."
Addressing petitioner's current dangerousness, Dr. Hayward noted that (1) petitioner's total scores under the three scientific risk assessment methods used to measure the danger he would present if released*fn6 all place him in the "low range" of risk, (2) petitioner "has displayed evidence of increasing maturity and improved impulse control," and communicated no "indication of antisocial thinking," and (3) "has achieved additional insight into the contributing factors to his commitment offense." Primarily for these reasons, Dr. Hayward opined that, overall "Mr. Stoneroad presents a low risk for violence in the free community."
Petitioner's Testimony at the Parole Hearing
At the 2010 Board hearing, petitioner said he could not remember what had happened on the night of the commitment offenses, but agreed he had committed "a pretty horrific crime." He had struggled with this issue ever since he entered prison because there was no reason for it, and the only thing he could understand was that for years he had "hidden so much anger and rage inside of myself that only came out when I was using alcohol." Petitioner discussed his childhood abuse, and said he only learned about it when he "started looking at it seriously about eight years ago."
Asked why his anger and rage manifested itself towards Kane and Irwin, petitioner said he had "no reason to be angry" with them; his anger was unobjectified; "it could have been anybody. I don't think it was specific people. I think that it could have been anybody at that time that was close to me or near me, because the anger, the rage that, when it was first brought to me or given to me by the beatings that my brother gave me, it was done by somebody who was supposed to have been close to me, supposed to have been my brother."
Acknowledging a long history of alcoholism and binge drinking, petitioner eventually came to see that although alcoholism was the "catalyst" of his crime, it was not the root cause. His need to understand why he murdered his stepson, with whom he had a close and loving relationship, led him to examine the circumstances that drove him to drink in the first place. The first step in reaching this understanding, he explained, was moving beyond denial of the problem. Petitioner came to see that alcohol relieved his "inner pain" and "confusion." His testimony, too extensive to fully relate here, is illustrated by the following statement, which responded to the query "what was the inner pain caused by?"
"This is something that I've struggled with all my life . . . . I discussed it before with the probation officer and with the psychiatrists that I've seen, but never in depth, never to a point of how much it actually impacted me, never to the point of how much it really bothered me. And the fact of the matter is, is that when I was born, and this was unknown to me at the time, but I was abandoned by a river by my mother, who, I understand now, was suffering from postpartum depression. And she had somebody put me by the river, and apparently for the animals to have, you know. So, but my grandmother, she felt something was wrong, and she had my uncle go look for me, and he found me . . . and took me home to my great grandmother, ...