California Court of Appeals, First District, Second Division
[DEPUBLISHED BY ORDER]
Marin County Superior. No. SC181491A Court Hon. James T. Chou, Judge.
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Jonathan Soglin and Frances M. Tenuis, under appointments by the Court of Appeal, for Petitioner.
Kamala D. Harris, Attorney General Jennifer A. Neill, Assistant Attorney General, Sara J. Romano, Brian C. Kinney and Denise A. Yates, Deputy Attorneys General, for Respondent.
Charles Riley, a life-term state prison inmate convicted of first degree murder in 1976, petitions for a writ of habeas corpus from a decision of the Board of Parole Hearings (Board) denying him parole. He contends the Board’s finding of current dangerousness is unsupported by the evidence; the Board failed to consider his age as a relevant factor supporting suitability for parole; and his prison term is unconstitutionally disproportionate and excessive. We agree with petitioner’s first contention and, accordingly, will grant the petition and remand for a new parole hearing.
STATEMENT OF THE CASE
On January 26, 1976, petitioner was convicted of the June 21, 1975 first degree murders of his then-girlfriend’s parents. He was originally sentenced to death, but while his case was on appeal, the California Supreme Court declared the statutory death penalty scheme unconstitutional (Rockwell v. Superior Court (1976) 18 Cal.3d 420 [134 Cal.Rptr. 650, 556 P.2d 1101]) and the Court of Appeal modified petitioner’s sentence to life imprisonment on each count, to run concurrently. His minimum eligible parole was set at seven years, June 27, 1982.
At a hearing on November 28, 2011, the Board found him unsuitable for parole. Petitioner challenged the parole denial with a petition for writ of habeas corpus filed in the Marin County Superior Court on July 31, 2012. The petition was denied on September 24, 2012.
The present petition was filed in this court on December 18, 2012. We issued an order to show cause on May 7, 2013, and the parties subsequently filed their return and traverse.
STATEMENT OF FACTS
At the time of the November 2011 parole hearing at issue here, petitioner was 56 years old. He committed his crimes when he was about a month past his 20th birthday and his then-girlfriend was 16 years old.
The January 31, 2011 Comprehensive Risk Assessment prepared for the current parole review hearing described the commitment offenses as follows:
“According to the Circumstances of Offense Report dated June 8, 1977, and as reflected in the most recent (2008) psychological evaluation, Charles Riley (age 19) and his girlfriend, Marlene Olive (age 16) planned and executed the murder of Marlene’s parents on June 21, 1975, in Marin County. Marlene Olive divulged to friends that her boyfriend, Charles Riley, hit her mother on the head with a hammer while she was sleeping in the sewing room of her home. She also stated that her father was shot in the back by Charles Riley. She admitted to wrapping up her parents’ bodies in sheets and waiting until dark. Once it was dark, both she and Riley took the bodies to the fire pits at China Camp where the bodies were burned using wood and gasoline. During the trial, witnesses testified that Mr. Riley admitted to killing both victims. Apparently Mr. Riley and Marlene Olive were going to wait until the victims were pronounced dead, collect the insurance money, and go to Ecuador, South America.”
The Court of Appeal’s 1978 opinion summarized petitioner’s statement to the police at the time of his arrest: “Defendant and Marlene had been
planning to murder the Olives for some time in order to prevent them from keeping him and Marlene apart; on the day of the killings (June 21) Marlene telephoned urging him to get his gun; it was prearranged that Marlene would lure her father from the house allowing defendant to enter and kill Mrs. Olive with a conveniently placed hammer; and then shoot Mr. Olive upon his return to the house; defendant obtained his gun (a.22 caliber revolver) and loaded it with bullets purchased for him by a friend; upon entering the sewing room, defendant bludgeoned the sleeping Mrs. Olive with the hammer (in a later confession to the jail nurse, defendant recounted his difficulty in dislodging the hammer and of the necessity to stab and suffocate Mrs. Olive because she continued to breathe); defendant then hid awaiting Mr. Olive’s arrival; when Mr. Olive arrived and discovered the body of his wife, defendant shot him in the back; sometime later, the two of them tidied up the sewing room and rearranged certain furniture; later that evening, they placed the bodies (wrapped in sheets) in the Olives’ automobile and drove to the firepits area where the bodies were doused with gasoline and set afire; defendant returned to the area on two occasions (later that night or early morning and again on June 23) and burned some of the unconsumed remains and other evidence; defendant stated he was ‘high’ on drugs when he committed the murders; defendant admitted discussing the killings with Deanna [a friend] on June 23.” Petitioner also admitted cashing personal checks belonging to one of the victims several days after the killings.
As related in the court’s opinion, at trial petitioner repudiated his confessions, claiming he had initially admitted his guilt in order to protect Marlene. He denied any complicity in the murder of Mrs. Olive and claimed self-defense in the killing of Mr. Olive, admitting only that he participated in the activities to conceal the crimes and dispose of the corpses and the theft and use of money taken from Mr. Olive’s wallet. The court found petitioner’s testimony about shooting Mr. Olive in self defense “implausible” and noted that petitioner and Marlene had “strong motives” to commit the crimes, in “Marlene’s frequently expressed hatred for her parents and [petitioner’s] anxiety to please her, the Olives’ efforts to prevent Marlene from seeing [petitioner], and the personal monetary gain through the death of her parents (Marlene was the sole beneficiary in her parents’ will), intended to finance their trip to South America.”
Police reports from the investigation of the homicides include various indications of Marlene’s expressions of desire to kill her parents. A letter to
petitioner, found in his home, read in part, “ ‘Of course I hope you’ll wait till I’m 17 to marry me or kill my parents.’ ” Another letter to petitioner found in Marlene’s bedroom read, “ ‘If I could kill my parents, I wonder if Susan could come live with me.’ ” A third letter, found in Marlene’s bedroom and dated January 1974, was addressed to “ ‘Mike, ’ ” whom the police officer writing the report believed to be a former boyfriend of Marlene’s, and read, “ ‘I was thinking about what you said, about that man who would take care of my Mom. I think we should talk it over, together. You and I. I’d be worried about what would happen after she died. But whatever did, wouldn’t keep me away from you.’ ” The police reports include several statements from witnesses who heard Marlene express her desire and intention to kill her parents.
A social evaluation by a correctional counselor at San Quentin State Prison early in petitioner’s incarceration at San Quentin described him as a “very quiet, mild mannered, shy and withdrawn type of person, who never did have a lot of close friends but always craved for close interpersonal relationships with others. Quite probably he just never got beyond the immature and overly dependent pre-adolescent stage of emotional development.” Petitioner exhibited “a low image of himself” and appeared to be “an inadequate type of person who is unable to cope with the demands of living in the complex and urbane society, ” “socially and emotionally isolated and quite unsophisticated.” He “felt inferior due to his overweight condition and big stature” and his sense of “ ‘not belonging’ ” was exacerbated by the family’s move to Arkansas for 16 months when he was in grade school, after which he was not able to resume contact with “ ‘the old crowd’ ” and began to associate with younger peers. He began to smoke marijuana just before starting seventh grade and found a sense of “status” in giving or selling drugs to high school students as well as in his motorcycle. He did not date girls and had no girlfriend or sexual intercourse until he was 19 and met Marlene Olive. By his description of their relationship, he was “passive, insecure and greatly dependent upon” her and she took “the domineering, aggressive and influential role of leadership.” She “sought him out for sex, not just daily but even more than once a day. He now reflects back and sees that she forced him to remain childlike, dependent upon her approval, wanting to always please her, while she could be ‘the adult’ and dominate his emotions and behavior. [¶]
Reportedly, this ‘love affair’ had a very forcefully direct influence in motivating their decision and actions in committing these homicides.”
The counselor noted that the “psychodynamics of the relationship of the Subject to his girlfriend/crime partner seems to be pivotal in evaluating this case, ” that “these homicides are not in keeping with his overall social background” and that “[h]is short-lived criminal career does not suggest an underlying and basic antisocial/criminal mind or orientation. That Subject is guilty of these murders in undeniable. Also, that Subject is an inadequate person goes without question.”
In a 1997 interview conducted as part of the evaluation for a parole consideration hearing, petitioner maintained that when he arrived at the Olives’ house, Marlene had already hit her mother on the head with the hammer, that he shot Mr. Olive in self-defense when Mr. Olive attacked him after finding his wife’s body, believing that petitioner had killed her. Petitioner stated that after shooting Mr. Olive, he saw that Mrs. Olive was suffering and barely clinging to life, so he took a pillow and suffocated her. Petitioner insisted that the murders had not been planned for a long period of time, stating that Marlene talked to him about killing her parents, especially her mother, but this was “only mentioned in passing and he felt that it would never actually take place.” This report noted, along with a number of aggravating factors relating to the offense, that petitioner was “induced by [Marlene] to commit the crime of murder. It appears that his girlfriend had a great deal of influence over him.”
In the 2010 interview for the current evaluation, petitioner initially did not want to discuss the crime, saying, “ ‘It won’t make any difference. My memory is tainted. When I think about it, I think how unnecessary it was. Had I been stronger, had more backbone, the first time her hatred came up I should have gotten out. I just accept my responsibility for it—the nuances of who did what—I was there. I could have prevented this months earlier. I didn’t because my relationship with my girlfriend was so important to me at that time. I had immersed myself in the marijuana subculture—don’t be a snitch.’ ” Petitioner expressed concern that “whatever he said would sound like he was trying to blame others and not take responsibility for what he did. He reiterated that he takes full responsibility for the deaths of two people” and added, “ ‘I would do anything I could to undo what I did.’ ”
The psychologist who conducted the current assessment, Dr. Twohy, stated that petitioner’s “expressed remorse for killing two people appeared to be internalized and emotional, rather than intellectualized and distant. He did
not, however, expound on intrinsic exploration of his motivations, other than to indicate his peer-pressured drive to use substances and his emotional reliance on having Marlene as his girlfriend.” He “showed a good level of insight into his situation, his psychological strengths and weaknesses, and into some of the potential underlying causes for his offense.”
Petitioner was raised in an intact family that was “stable and devoid of serious interfamilial conflicts, ” with no reported early emotional nor behavioral problems.” His record indicated no juvenile delinquency or antisocial conduct. His first adult arrest was on March 26, 1975, when he and his girlfriend stole $1, 114 worth of clothes from a department store, she directing him what to take. He was again arrested on May 14, 1975 for possession of a weapon and marijuana. The record does not reflect the disposition of these cases. Petitioner’s next arrest, on July 1, 1975, was for the homicides.
Petitioner dropped out of high school during his senior year, with only a few units needed to graduate, then earned his high school diploma while in county jail. Prior to his incarceration, he had had several different jobs, including delivering newspapers, delivering pizza, bartending, and working in a circuit board factory. While incarcerated, he earned a Bachelor of Science degree in Business Administration from Chapman College. His prison work reports were “mostly above average to exceptional.” Petitioner had completed Vocational Drafting with A grades, and his instructor stated he was employable in that field. He had worked in the Prison Industry Authority (PIA) shoe factory, and, through the vocational machine shop, had completed training as a milling machine operator, a tool grinder operator and a lathe operator. He married twice: At age 29, he married a woman he met through correspondence, but they divorced after a year; then at age 31, he married a woman to whom he remained married for 10 years, when she died of breast cancer.
Petitioner’s records indicated he had incurred six rules violation reports (CDC [California Department of Corrections] 115s) during his 35-year
incarceration, most recently in 1979. He had been issued three Counseling Chronos (CDC 128As), reflecting “minor misconduct, ” most recently in 2003.
The risk assessment prepared for the current parole hearing related petitioner’s report that his substance abuse as a teenager and young adult included marijuana, alcohol, hallucinogens, and cocaine, and that before he first used substances, he had been ostracized by his peers for not using. He believed his substance abuse began as a “surrender to peer pressure” and rebellion, especially against his father. He said his use of alcohol and drugs “probably played a role in his life offense in that he was ‘not operating fully cognizant of everything[, ]’ although he did not “blame the substances for his offenses” and took “full responsibility” for both his substance abuse and the offenses. He stopped using all hard drugs but used marijuana while incarcerated until the mid-1980s; he had not used any mind-altering substance since the 1980s and stated he would never again do so. Petitioner had participated in 12-step programs at various times throughout his incarceration and, most recently, had been an active member of Narcotics Anonymous (NA) from 2008 on. He stated he was committed to remaining clean and sober and liked “ ‘having clarity of mind.’ ”
Petitioner has several medical conditions, including sleep apnea (for which he uses a “CPAP” machine), benign prostatic hyperplasia and gastroesophageal reflux disease, and is considered “mobility impaired, ” using a cane and wearing orthopedic shoes.
The 2011 Risk Assessment report summarized the conclusions of petitioner’s prior evaluations for the Board:
―In 1982, senior psychiatrist Sherman Butler reported that petitioner had “no mental disorder and that ‘his violence potential at present appears no more than average.’ ” Senior psychiatrist Robert Brandmeyer agreed with Dr. Butler and also reported that petitioner appeared “ ‘somewhat insightful’ and that he had made ...