California Court of Appeals, First District, Second Division
[DEPUBLISHED BY ORDER]
Superior Court of Contra Costa County Hon. Brian Haynes Judge
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Brandie Devall, under appointment by the Court of Appeal, for Petitioner Andrew Young.
Kamala D. Harris, Attorney General, Jennifer A. Neill, Assistant Attorney General Claudia H. Amaral and Amber M. Wipfler, Deputy Attorneys General, for Respondent the People.
In 1993, a jury convicted petitioner Andrew Young of the second degree murder of his former girlfriend, Dollie Harvey, in 1991. Petitioner brutally murdered Harvey during a period of extraordinary and prolonged stress caused by his loss of custody of a child from a previous relationship and after Harvey rejected his entreaty that they resume their relationship. Petitioner was sentenced to a term of 15 years to life. Now 53 years old, he has been considered for, and denied, parole by the Board of Parole Hearings (Board) on five occasions.
We uphold the Board’s decision to deny parole if it reflects due consideration of all relevant statutory factors and is supported by at least a “modicum of evidence, not mere guesswork, ” that is rationally indicative of current dangerousness. (In re Shaputis (2011) 53 Cal.4th 192, 219 [134 Cal.Rptr.3d 86, 265 P.3d 253] (Shaputis II); see id. at pp. 212, 221.) In In re Young (2012) 204 Cal.App.4th 288 [138 Cal.Rptr.3d 788] (Young I), we concluded the Board’s October 2009 denial of parole to petitioner violated his due process rights because the Board: (1) did not duly consider his insights into the murder and several other relevant factors that demonstrated his suitability for parole, including the stressful circumstances petitioner experienced leading up to the crime and his exemplary postconviction conduct, (2) relied on mischaracterizations of evidence and conjecture, and (3) stated reasons for denial that were not supported by evidence rationally indicative of current dangerousness. We ordered the Board to conduct a new suitability hearing consistent with our decision.
Unfortunately, the Board has not done so. In July 2012, it held another hearing and arbitrarily denied petitioner parole again by committing the same errors as those we pointed out in Young I. Most significantly, the Board again did not duly consider petitioner’s considerable insights into why he committed the murder or the extraordinary and prolonged stresses he experienced leading up to it. The Board’s failure to do so is lamentable, not only in light of our discussion in Young I, but because the Board is required to duly
consider these matters. Each is expressly defined by the governing regulation to be a relevant factor demonstrating suitability for parole.
Nonetheless, the Board mischaracterized petitioner’s considerable insights and stresses as being about “other areas” of his life. This is patently incorrect, and impossible to conclude from even a cursory review of petitioner’s statements. Petitioner repeatedly said that he killed Harvey because he was extremely overwhelmed with sadness, rejection, shame, and frustration from his prolonged, unsuccessful battle for custody of his son, his father’s abandonment of him as a child, Harvey’s refusal to resume their relationship, and his inability to seek help for his increasing emotional difficulties. As a result, a cycle of anger developed in him until he exploded into an uncontrollable rage towards Harvey. And petitioner unquestionably meant what he said; his postconviction conduct, including his efforts to seek help for, and address, his emotional difficulties and his uniformly exemplary prison behavior for almost two decades, is impressive. We can only conclude that the Board’s vision was entirely obscured by the heinous nature of the crime itself. However, our Supreme Court has made clear that in such a circumstance, the heinous nature of the crime by itself is not sufficient to deny parole. (In re Lawrence (2008) 44 Cal.4th 1181, 1213-1214 [82 Cal.Rptr.3d 169, 190 P.3d 535] (Lawrence).)
The Board also concluded that petitioner was a “domestic abuser” who had “relational dynamics” problems with intimate partners in general. There is no question that petitioner’s murder of Harvey, by definition, was an act of domestic violence. But there is no evidence that petitioner ever engaged in any domestic or other abuse before or after the stressful circumstances that led up to the murder, or that he lacked relevant insights into his intimate relationships. An act of domestic violence does not make one a serial domestic abuser or establish a propensity to commit acts of domestic violence. Nonetheless, the Board, having speculated that petitioner was such an abuser, concluded that he lacked insight into this purported attribute as well.
Finally, the Board, based on this conjectural attribute, dismissed without good reason petitioner’s exemplary postconviction conduct. The Board reasoned that, because the danger petitioner might present to an intimate partner could not be assessed in prison, nothing he had done and nothing he could do in a prison setting would disprove his purported general tendency towards domestic violence. Thus, the Board, although also expressly required by regulation to duly consider petitioner’s postconviction conduct as a suitability factor, disregarded it altogether.
In short, the Board’s decision violated petitioner’s due process rights to a decision based on the evidence, not conjecture, and on consideration of all
relevant suitability factors. There is no evidence in the record rationally indicative of current dangerousness. To the contrary, all of the evidence, other than the heinous nature of the crime itself, indicates petitioner was suitable for parole. Accordingly, we grant the petition.
In Young I, we ordered the Board to conduct another hearing consistent with our opinion and with In re Prather (2010) 50 Cal.4th 238 [112 Cal.Rptr.3d 291, 234 P.3d 541] (Prather). That remedy is insufficient here. The Board has failed to afford petitioner the hearing to which he is entitled, even after being ordered to do so. It has twice denied him parole by disregarding ample evidence of highly relevant suitability factors in favor of conjecture. Its latest reasoning leaves petitioner with little, if any, opportunity to establish that he is worthy of parole. Ordering it to conduct yet another hearing with the attendant delay will only prolong the denial of petitioner’s constitutional rights. Therefore, we order the Board to vacate its denial and immediately grant petitioner parole, which grant shall be subject to review by the Governor.
Petitioner’s Murder Of Harvey
The Board considered a 1993 probation report, which this court discussed at length in Young I, supra, 204 Cal.App.4th at pages 294-295. According to the report, in 1990 and the first part of 1991, petitioner, while living with Harvey in the Bay Area, engaged in a costly, emotionally trying, and unsuccessful custody battle in New York with the mother of his young son, a woman named Wynona Johnson. Johnson had, as petitioner put it, “ ‘kidnapped’ ” the boy, whom petitioner had been raising for several years, and taken him back to New York where she instituted custody proceedings. Petitioner told the probation department that he became more and more stressed as his financial, emotional, and work pressures mounted. He and Harvey began to argue and their relationship deteriorated. After Harvey learned that petitioner had spanked her son, they decided to end their relationship. Harvey moved into her own apartment and petitioner went to New York to visit his son for a month. The day after he returned, he met with Harvey. They went to her apartment, had a drink or two and some cocaine, and talked about money, the bills, the children, and their relationship. They started arguing and yelling. Harvey became afraid and picked up a knife.
Petitioner caused her to drop it, and Harvey picked up a hammer. Petitioner took it from her, struck her with it repeatedly, and killed her.
A friend of petitioner’s notified the police about petitioner’s erratic, self-destructive conduct and Harvey’s apparent disappearance. The police entered Harvey’s apartment and discovered her body in the rear bedroom with a suitcase covering the head. Petitioner was soon arrested and acknowledged killing Harvey.
An autopsy of Harvey’s body found 67 blunt force injuries and an abrasion on the neck. Forty-eight of the blunt force injuries were on the head and face. The cause of death was strangulation, blunt force head injuries, and blood loss.
At trial, petitioner admitted killing Harvey but argued he did so in the heat of passion and was guilty of only voluntary manslaughter. He was ultimately found guilty of second degree murder and sentenced to an indeterminate life sentence. (Young I, supra, 204 Cal.App.4th at p. 294.)
Petitioner’s Prior History
Petitioner was born in New York City to parents who divorced when he was a boy. He graduated from high school and served honorably in the Marine Corps. He has a relatively modest, nonviolent criminal record, consisting of convictions for petty larceny and attempted possession of a weapon, and a similarly modest, nonviolent juvenile record.
According to petitioner, he met Harvey in New York in 1987. She relocated to the Bay Area with her own two children, and petitioner and his son joined them in 1989. They lived together until shortly before the 1991 murder, when Harvey and her children moved out. Petitioner was for the most part employed during this period, holding several different jobs. He was involved for about seven years with Johnson prior to his relationship with Harvey.
Psychologist M. Geca prepared a June 2012 evaluation of petitioner. She wrote that he had previously indicated he started using cannabis in high school and had “[c]onsistently over the years... indicated a... limited use” of it. Petitioner told Geca it had been his “drug of choice, ” he typically smoked no more than two marijuana joints a day, and he had gone to work under its influence “occasionally.” He said he drank liquor occasionally and used cocaine twice, in 1990 when his son was taken back to New York and on the night he murdered Harvey.
Petitioner’s Postconviction Conduct
As of the 2012 hearing, petitioner had a very impressive record of postconviction conduct, including extensive rehabilitation activities. He had no disciplinary write-ups in over two decades of imprisonment and was assigned the lowest possible prisoner classification score available to him, demonstrating his exemplary conduct. A Board commissioner’s summary of his many years of rehabilitation programming and self-help study takes up nine pages of hearing transcript. Petitioner’s extensive prison programming included courses in anger management, parenting, domestic violence, relapse prevention, emotional awareness, emotional maturity, alternatives to violence, literacy, sexual awareness, personality and morality, Alcoholics Anonymous and Criminon.
Petitioner also was a practicing Muslim since 1999. He had worked at a number of jobs, including the prison library for a number of years, and had above average to excellent work reports, was vocationally certified in machine shop, parenting, and mill and cabinet, and was participating in construction skills modules. He helped other inmates prepare for their GED's. He was also taking community college courses. In 2004, he had promptly sought help for an injured kitchen cook, preventing her further injury. Letters from prison personnel described him as someone who was diligent, respectful, patient, positive in attitude, constructive, committed to helping others, and able to get along with staff and inmates regardless of ethnicity.
Parole Plans and Social Support
Petitioner told the Board that, if paroled, he planned to live in transitional housing in the Sacramento area, having been accepted into a program there. After that, he planned to live in Sacramento with his brother. At the time of the hearing, he remained in contact with his parents and siblings. He had numerous letters of support, including from Johnson and their son, as well as from relatives and long-time friends.
Prior Psychological Evaluations Of Petitioner
Petitioner received four positive psychological evaluations prior to 2012. The evaluating psychologists concluded that he had a “less than average” potential for violence (1996); posed no “more than a normal risk factor whether in or ...