In re Blair, D051005 (Cal. App. 5/23/2008)

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In re JOHN BLAIR on Habeas Corpus.

D051005

Court of Appeal of California, Fourth Appellate District, Division One.

May 23, 2008

NOT TO BE PUBLISHED

Appeal from the Superior Court. No. CR59442.

Petition for writ of habeas corpus, Larrie R. Brainard, Judge. Relief denied.

HALLER, J.

John Blair was convicted of second degree murder, and was sentenced to 17 years to life in 1983. Twenty-three years later, the Board of Parole Hearings (Board) found Blair suitable for release on parole. Governor Arnold Schwarzenegger reversed this decision, finding Blair's release would pose an unreasonable risk of danger to society. Blair petitions for a writ of habeas corpus challenging the Governor's reversal. Applying the review standards set forth in In re Dannenberg (2005) 34 Cal.4th 1061 and In re Rosenkrantz (2002) 29 Cal.4th 616, we conclude there was some evidence supporting the Governor's decision. We therefore deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

The Crime¹

In June 1982, Blair met the victim, Cheri Peterson, in Arizona. Blair was 26 years old and Peterson was 32 years old. After spending several weeks together, Blair agreed to drive Peterson to her home in Jacumba, California. Peterson told Blair she would retrieve her belongings and then return to Arizona with him.

Shortly after they arrived at Peterson's home on July 15 at about 1:15 a.m., Peterson told Blair she had lied to get a ride back to California, and she had no intention of returning to Arizona with him. Both Peterson and Blair had been at a bar drinking all day and night and were highly intoxicated. Peterson discussed the situation with her roommate, Katherine Ross, while Blair waited outside.

While waiting, Blair became angry that Peterson would not be returning with him and had lied to him. Peterson then came outside to talk with Blair, and the two argued for about 15 minutes. When they went back into the house, Blair began hitting and pushing Peterson. Peterson's roommate (Ross) attempted to intervene, but Blair struck her as well. Peterson told Blair she was afraid of him, and he pushed her to the floor. Blair then left the house, yelling "`I'll show you what scared is,' " and the two women locked the front door.

Blair went to his car and retrieved a 12-gauge shotgun from his trunk.² He then returned to the house and demanded to be let inside. Ross, who feared Blair would hurt her, opened the door, but told Blair to leave the weapon outside the door. Blair ignored this request and came into the house appearing very angry. With a shotgun in his hand, Blair again confronted Peterson and told her to come with him to Arizona. Peterson refused. Blair then hit Peterson, knocking her down onto the couch. Blair then shot Peterson once in the upper chest area from approximately one to two feet away. Blair immediately left the house and ran to a nearby residence where people he knew were living.

Peterson pleaded with Ross to help her, stating "`Help me Katy, help me.'" Ross called paramedics, but Peterson died on the way to the hospital.

In November 1982, Blair was convicted of second degree murder with use of a firearm. The court sentenced Blair to 15 years to life for the murder conviction, plus an additional two-year term for the firearm enhancement. After the conviction, Blair told a probation officer that the killing was "an accident," stating that he and Peterson were under the influence of alcohol and arguing heatedly over whether she would return to Arizona with him or remain in Jacumba with her roommate. Blair said he retrieved his gun from his car to frighten Peterson into remaining with him and he thought in his drunken state that he was threatening her with an unloaded firearm. According to the probation officer, Blair seems "quite certain that [Peterson] had loaded" the gun without his knowledge.

In June 1992, Blair first became eligible for parole. Thereafter, the Board denied parole seven times. In September 2006, the Board held an eighth parole hearing. After considering all of the evidence, the Board found Blair was suitable for parole. We summarize the evidence presented at the hearing, the Board's reasoning for its decision, and the Governor's reasons for reversing the Board's decision.

Evidence Presented at 2006 Parole Hearing Blair's Testimony

In his testimony, Blair said he was accepting full responsibility for the crime. Blair described the facts of the crime as summarized above, and said that he retrieved the gun from the car "to scare [Peterson] into coming back to . . . Arizona with me. I've been abandoned most of my life." Blair did not specifically remember pulling the trigger, but recalled arguing with Peterson and waiving the gun around. When asked whether the gun was loaded when it was in his trunk or whether he loaded it when he went outside, Blair responded: "I honestly don't remember. I don't believe I loaded it. All we had—the only shells we had was birdshot because we had been out bird hunting that weekend. It may have been loaded but . . . I don't think I'd have brought it to the bar loaded." Blair also admitted that he had physically abused Peterson in the days or weeks before the crime.

Blair said that he was not intending to offer an excuse for the crime, but said that "I'm an alcoholic in a bad way . . . [and] have a really bad history of violence when I drink." Blair also said that before he met Peterson, he and his wife divorced, and he started drinking heavily, and then he lost his job "and everything I had."

When asked to give a statement regarding his suitability for parole, Blair discussed at length his remorse and his understanding that his problems primarily stem from his being an alcoholic. Regarding his alcohol problem, he stated: "Everybody's concern and rightfully so, is on my alcohol problem. I've had a problem all my life. I'm an alcoholic. And I'll guarantee you on anything you want, I'll never drink again. It's not because I'll be on parole. If I'm off parole, I won't drink again. Taking [Cheri's] life, I never knew I was capable of something like that. It scared the living hell out of me. That's not a man. That's an animal . . . . I've worked hard to be the person I am [today]. . . ."

Blair's Criminal History

Blair's criminal record before the murder conviction consisted of: (1) a resisting arrest and disorderly conduct conviction in Wisconsin; and (2) an assault/disorderly conduct arrest in Michigan. The latter incident occurred when Blair stabbed a man after he got into a fight at a bar. Blair was about 20 years old at the time.

Blair's Prison Disciplinary Record

During his 23 years in prison, Blair had six serious rule violations, referred to as "115" incidents. Five of these incidents occurred during Blair's first four years of prison. These incidents involved fighting, possession of inmate manufactured weapons, and engaging in a verbal confrontation with a supervisor. The last of these violations occurred in December 1986.

The final 115 violation was a September 1994 disciplinary action for marijuana possession after a single positive drug test. At the 2006 parole hearing, Blair denied ever having used marijuana. He claimed the marijuana charge was fabricated because Blair would not identify the individuals who were smuggling contraband at a prison printing factory. Blair acknowledged that he should have disclosed the identity of the individuals, but stated that prison culture at that time made it difficult for him to do so. The disciplinary action was not placed in Blair's file until two years after the positive test, at which point Blair was told it was too late to challenge it. The Board noted this irregularity in disciplinary procedures. Blair never again tested positive for drug use.

In addition to Blair's 115 disciplinary record, Blair had five minor disciplinary incidents. The last minor incident was in 2000 when he was helping an older inmate up the steps and was a few minutes late for lock up. He received counseling for the incident.

Work History in Prison

Blair's prison work history was exemplary. His jobs have included work in the printing plant and the furniture factory. Blair has developed journeyman level skills in mill and cabinetry work, and currently works six days a week as an assistant lead person in the prison's furniture factory. At the parole hearing, Blair discussed at length his interest in this cabinetry work and photography. Two correctional officers and a supervisor submitted "laudatory" evaluations, stating that Blair's work was outstanding and that he had good leadership and excellent work skills. An evaluation by Correctional Officer Robinson, dated August 4, 2006, states, "`Very few current inmates have impressed me as much as Inmate Blair has over the past years. I am convinced that Inmate Blair would be a productive citizen once released.' " Mental Health Professional Evaluations³

In May 1995, a mental health professional wrote: "Mr. Blair represents an individual who has made substantial progress . . . and his potential violence is well below average if he was released to the community." Blair's recent mental health evaluations are consistent with this conclusion, and reflect that he has no mental or personality disorders, and that Blair's risk of recidivism upon parole is low to moderate assuming continued sobriety. The evaluation also stated that Blair's self-help efforts in prison "`have resulted in much increased insight' "and "`true remorse.'"

Alcohol Abuse

Blair repeatedly stated at the hearing that he understood his prior problems occurred while he was under the influence of alcohol. Blair said he had been clean and sober for 21 years since September 13, 1985, and that he has never used illegal drugs. He actively participates in weekly AA meetings, and intends to stay in AA if released. He has found an AA sponsor to guide him when he is released. He also participates in many other self-help programs,...