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In re Palmer

California Court of Appeals, First District, Second Division

July 26, 2017

In re WILLIAM M. PALMER, on Habeas Corpus.

          O'Melveny & Myers, Cara Gagliano, Megan L. Havstad, Geoffrey Yost for Petitioner.

          Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Jessica N. Blonien and Julie A. Malone, Acting Assistant Attorneys General, Phillip J. Lindsay, Senior Assistant Attorney General, Sara J. Romano and Denise A. Yates, Deputy Attorneys General for Respondent.

          Richman, J.


         In 1988, when he was 17 years old, petitioner William Palmer pled guilty to kidnapping for robbery. Sentenced to life with the possibility of parole, Palmer has come before the State of California Board of Parole Hearings (Board) 10 times, without success. The most recent hearing was on June 2, 2015, when the Board denied parole, with a five-year denial, expressly rejecting Palmer's request at the conclusion of the hearing to calculate his base term and adjusted base term.

         On August 21, 2015, represented by counsel from the same firm that has represented him since 2008, Palmer requested reconsideration pursuant to California Code of Regulations, title 15, sections 2028, subdivision (b), 2041, subdivision (h), and 2042, on the grounds the Board had: (1) wrongfully refused to set a base term and an adjusted base term for Palmer's commitment offense, and (2) applied the incorrect standard at Palmer's parole hearing by failing to give great weight to the youth offender factors.

         By letter of September 21, the Board denied Palmer's request for reconsideration, stating that the Board had given appropriate weight to the youth offender factors at Palmer's hearing. The letter did not address whether Palmer was entitled to have his base term and adjusted base term set, promising that the Board's “response to this issue will be addressed in a separate letter.” No such letter was forthcoming.

         On December 31, Palmer filed an original petition in this court, filing it here based on the stipulation and order regarding settlement filed in the Butler case. (In re Butler (2015) 236 Cal.App.4th 1222, 1234 (Butler) [“This Court shall retain jurisdiction of this case until the amended regulations, conforming to the base term setting practices as described in this order, become effective.”].)

         We requested informal response, which the Attorney General filed on May 16, 2016. In that response, the Attorney General defended the Board's conduct, including its failure to calculate and consider base terms, arguing that the Butler settlement did not apply to Palmer because he was a youth offender, and that the Board's decision to deny parole comported with the requirements of the youth offender statute. Palmer filed a reply, asserting that the Board's refusal to set terms was contrary to the Butler settlement.

         On December 8, we issued an order to show cause. Six days later, the Board calculated Palmer's base and adjusted base terms. The Attorney General thereafter filed a return, arguing that the claim based on Butler was moot, that the hearing complied with the law, and that denial of parole was supported by “some evidence.” Palmer filed a traverse, following which we held oral argument.

         We now render our opinion, holding that the June 2, 2015 hearing did not comport with Butler, and order the Board to conduct a new hearing in light of the terms it now has set for Palmer.



         Palmer was born and raised in Riverside, the younger of two children born to his parents. He has two half-brothers and three half-sisters, as both parents had been married before. Palmer's father moved out of the home when Palmer was approximately eight. As Palmer described it, until his father left the home, they lived in a close-knit neighborhood in a relatively supportive community. After his father left, they moved into a more middle class community, at which time Palmer realized that his family was not that well off-and he became more materialistic.

         As Palmer approached high school, he began his criminal activity, his first offense in July 1985 when Palmer admitted to the violation of driving without a license. In February 1986, Palmer admitted to a violation of Penal Code section 288a, a felony, for his conduct with three minors.[1] Palmer was placed on probation, and then violated it with two charges of robbery, burglary, and attempted burglary.

         Palmer's criminal activity culminated with the commitment offense in 1988, when, his face covered with a ski mask, he lay in wait in a parking garage in an apartment complex with which he was familiar (having previously committed burglaries there). Brandishing an unloaded.357 revolver he had stolen in a previous burglary, Palmer confronted Randy Compton, and ordered him to turn over his wallet. Compton said he did not have one, and Palmer ordered him to drive to an ATM and withdraw $200. When they arrived at the bank, Compton, an off-duty police officer, drew his gun and fired 15 rounds at Palmer, who was hit in the knee and fled. Palmer was captured shortly thereafter, waived his Miranda rights, and confessed to the crime, an account fully corroborated by Compton.

         Palmer's Prison Experience

         Palmer has been incarcerated since 1988, during which time he has had 10 parole hearings, including that leading to the petition here. Palmer's petition asserts that “At many of his prior parole hearings, the Board has applauded Mr. Palmer's rehabilitative efforts, his indisputable psychological health, and the superlative references he has received from those prison officials and employees who know him best. For example, as early as 1997, the Board quoted a letter from a vocational instructor who wrote that Mr. Palmer ‘has the best chance to succeed out of any of the many students I've met.' (Ex. G, Excerpt from Tr. of Aug. 19, 1997 Parole Consideration Hearing, at App. 169.)” That quotation is the only support provided.

         The ninth parole hearing, the one prior to the subject hearing, was on April 11, 2013, where the Board denied parole, focusing primarily on Palmer's violations while in prison, violations described as reflecting “serious misconduct while incarcerated.” The denial was for five years. Palmer was successful in having that time advanced, and, as indicated, his next hearing, that involved here, came on some two years later, on June 2, 2015.

         In the interim, two things occurred that Palmer contends would affect his hearing: (1) the settlement in the Roy Butler matter, and (2) the amendment of Penal Code section 3041. We thus digress from Palmer's prison history to discuss these developments.


         Prior to 2012, the Board's practice was to defer setting a prisoner's base term and adjusted base term until after it had found him suitable for release, reasoning that the term calculations were irrelevant where a dangerousness determination precluded parole. (Butler, supra, 236 Cal.App.4th at p. 1234.) Butler filed a petition challenging that policy, arguing that it violated the due process rights guaranteed by the California and United States Constitutions and that it obstructed judicial review of claims that the denial of parole had resulted in constitutionally excessive punishment. (Id. at p. 1228.) The Board settled the case by entering into a settlement agreement, a settlement this court approved and incorporated into a December 16, 2013 order. As pertinent here, the settlement obligated the Board to implement “new policies and procedures that will result in the setting of base terms and adjusted base terms for life time inmates at their initial parole consideration hearing, or at the next scheduled parole consideration hearing that results in a grant of parole, a denial of parole, a tie vote, or a stipulated denial of parole.”

         The terms of the Butler settlement became effective on March 5, 2014, and on April 1, 2014, the Board changed its policy on the calculation of base and adjusted base terms in response to the requirements of the settlement. The Board, however, took the position that the settlement provisions did not apply to juvenile offenders, which, as will be seen, was the Board's position at the June 2015 hearing.

         The Youth Offender Law

         In Senate Bill 260, the Legislature in 2013 amended the Penal Code regarding parole hearings for youthful offenders who were under 18 at the time of the commitment offense. (See Sen. Bill No. 260 (2013-2014 Reg. Sess.) Sept. 2013, pp. 2520-2522; see also Pen. Code, §§ 3046, subd. (c), 3051, 4801, subd. (c).) While the hearings were to be conducted under the same general guidelines as hearings for non-juvenile offenders (see Pen. Code, §§ 3041, 3051, subd. (c)), the bill also provided that the Board “shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.” (Pen. Code, § 4801, subd. (c).) The bill was enacted out of recognition that “youthfulness both lessens a juvenile's moral culpability and enhances the prospect that, as a youth matures into an adult and neurological development occurs, these individuals can become contributing members of society.” (Sen. Bill No. 260, supra, § 1.) The Legislature's intent was “to create a process by which growth and maturity of youthful offenders can be assessed and a meaningful opportunity for release established.” (Ibid.) In sum, to provide youth offenders such “meaningful opportunity for release, ” Senate Bill 260 requires the Board to “give great weight” to three specific factors in reviewing a youth offender's suitability for parole. (Pen. Code, § 4801, subd. (c).) These three factors, which are drawn from Graham v. Florida (2010) 560 U.S. 48 and Miller v. Alabama (2012) 567 U.S. 460, are “the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner....” (Pen. Code, § 4801, subd. (c).)

         The June 2, 2015 Hearing

         Palmer's June 2, 2015 parole hearing came on following Palmer's successful motion to advance. The hearing was before two commissioners: Presiding Commissioner Arthur Anderson and Deputy Commissioner Kathleen Newman. Palmer was present, represented by attorney Megan Havstad of the firm of O'Melveny & Myers, a prominent California law firm that has apparently represented Palmer on pro bono basis since 2008. Riverside County Deputy District Attorney was also present. The hearing lasted some three and a half hours, and generated a transcript of 127 pages.

         The hearing began with various preliminary matters, including the presiding commissioner's observations that the hearing was held in light of the youth offender law and its effect. Following those preliminaries, the presiding commissioner referred to various submissions from Palmer. Commenting on one such submission, the commissioner observed: “Okay. You've remained disciplinary-free. You still disciplinary-free?” Palmer answered, “I am.” It would develop that Palmer's representation was not true, a fact that led to much discussion at the hearing.

         One last development before the commissioners turned to the specifics of Palmer's record in prison. The deputy commissioner's referred to the 2013 hearing, at which Palmer had received a five-year denial. The deputy commissioner asked Palmer how he felt about that. This colloquy ensued:

         “INMATE PALMER: I wasn't happy, but I deserved it. I have two 115s coming in here. I knew that I still had some work to do.

         “DEPUTY COMMISSIONER NEWMAN: Okay. That was the primary reason for your denial. The very first reason was serious misconduct while incarcerated. They noted you had ten 115s. You have 11 now. The last Panel had told you to stay disciplinary-free, but you didn't. You minimized your prior criminality. They thought that they saw the same ongoing pattern. The Risk Assessment wasn't supportive in that you hadn't internalized any of the concepts of self-help. So kind of sounds like that last Panel really kind of nailed it.

         “INMATE PALMER: Yes.

         “DEPUTY COMMISSIONER NEWMAN: Did you see that at the time?

         “INMATE PALMER: No, ma'am, I didn't. Every Panel that I came in, I left thinking they don't-they didn't get it right. You know, they just-you know, it was, it was always an adversary. It was you against me, you know? And it wasn't until recently that it's not about you, and it's not about us against them or me against you. Ms. Newbill helped me go through my transcripts. She actually highlighted some things and sent them to back to read, and we talked about them. She said they're telling you exactly right here what you need to work on. It's not a mystery. Why can't you get it?


         “INMATE PALMER: And it was at that time that I started to get it. And, today, I don't see you as my adversary or staff. We [are] on the same team. We want to make sure that the public is safe from me, from my decision making.”

         The reference to “Ms. Newbill” was to Alicia Newbill, a person Palmer had met via a mutual friend in November 2013, and who was described at the hearing sometimes as Palmer's girlfriend, and sometimes as his fiancée. And Alicia Newbill, and what she did for Palmer-and what she meant to him-became a significant subject at the hearing, particularly in reference to a May 7, 2014 incident involving Newbill that led to discipline for Palmer, which incident will be described in detail below.

         While in prison, Palmer, a high school dropout, had obtained a GED and in 2007 an AA degree from Palo Verde College. As the deputy commissioner described it, Palmer had done a “really good job” with his educational upgrade.

         With regard to self-help, Palmer was described as “working steadily, ” his volume of progress “just fine.” Indeed, Palmer has participated in a range of self-help programs, including substance abuse and victims' impact programs included in the “Long-Term Offender Pilot Program”; courses on conflict resolution and anger management; faith-based self-improvement programs; Narcotics Anonymous; and the “Criminal Gangs and Violence Prevention Program.” Palmer also contributed to the prison community, including tutoring other youth offenders, volunteering as an inmate peer health educator, and participating in the “Visiting Beautification Project.”

         Palmer's parole plans were discussed at length, and were satisfactory. He had plans on where he would live initially, with his ultimate plan to move to Washington State, to be with the Newbill family.

         The Board had many letters in support of Palmer, including from his sister, his cousin, and his uncle. There was a letter from a person who volunteered to be Palmer's AA sponsor. There were at least three letters from people who had known Palmer since elementary school. And there were letters from three members of the Newbill family: Alicia, her father, and her brother. Mr. Newbill, who had met Palmer in prison, spoke highly of Palmer's character. So did Alicia's brother, a painting contractor who also said he was willing to offer Palmer a job.

         Palmer learned to paint in prison, and joined in “Arts in Corrections, ” where he has been off and on for 10 years. He has become quite an accomplished artist: he has sold some of his art work, and has also painted three murals on the prison grounds, one of which the deputy commissioner described as “very beautiful, ” another of which the presiding commissioner described as “very good work.”

         Finally, there was discussion of the recent assessments, including one dated October 2014 by M. Geca, Psy.D., who opined that Palmer represents a “moderate risk for violence.” Among other things, the presiding commissioner quoted Dr. Geca's report: “ ‘The undersigned has seriously considered a low risk for Mr. Palmer given his developing insight in the errors. However, despite having provided with repeated feedback by the Panel and mental health doctors, he continued to engage in institutional misconduct. In fact, he's incurred three additional Rule Violations since the last time he was evaluated by this undersigned... and the last one was 2014.... Failure to curb these behaviors, unfortunately, has necessitated a slight increase of your previous level of risk from a low-moderate to a moderate.”

         Dr. Geca's risk of future violence assessment included this: “It is this undersigned['s] opinion that Mr. Palmer has yet to explore sufficiently not only his narcissistic outlook on life but also his defiance and his oppositional behaviors. In this interview, he attributed them to having been wrongfully convicted when he was a 15-year-old, or to having been forced to accept the plea[], and to his reaction toward, what he perceived to be[], an unfair justice system. Yet, his defiance and opposition were evidence during his earlier years when he stole things, engaged in fights at school and while having been defiant toward his coach. His performance on the Court supervision was inadequate; he resisted feedback and was not amenable to change for many years to come. This resistive, oppositional and defiant attitude continued at CDCR and despite his rather recent but candid appraisal of his character flaws and negative attitudes, he is yet to sufficiently address and to resolve these concerns. When left unresolved, this personality style and ways of relating to others will likely hinder him in interpersonal contacts and may exacerbate his stressors related to the reintegration process.”

         Another evaluation was by Dr. Paul Good, prepared in December 2014. Dr. Good's report referred to Palmer's work in the “Man Up” program having an effect on the “self-defeating behavior that he had previously brought into contact with prison authorities.” Asked what self-defeating behavior Dr. Good was referring to, Palmer answered, “I was stuck in my denial. And every time I was making decisions, I was making decisions for selfish reasons and gangs, working off my impulses and emotional responses.” And he elaborated: “And until I really started to understand what it is to be a man, to have integrity, to be honest, to be forthcoming, to be accountable and responsible, I was stuck in my prison mentality. It was a mentality that I learned at a very early age in order to survive the Level IVs and Level IIIs. And because I was able to survive that, I didn't feel I needed to change anything. It worked for me, and it was no longer working for me.”

         Early in the hearing, Palmer had talked of how he stopped going to church with his family, and that while he figured some things out, the “one thing I did not address was my emotional state. How I was really feeling or really what's causing me to do things. And it took 26 years for me to finally pay attention to what that ...

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