In re Butler

169 Cal.Rptr.3d 1

IN RE Roy Thinnes BUTLER on Habeas Corpus.

A137273

Court of Appeal, First District, Division 2, California.

Filed March 5, 2014

Keker & Van Nest LLP, Under appointment by the Court of Appeal, Jon B. Streeter, Sharif E. Jacob, Benita H. Brahmbhatt, San Francisco, Attorneys for Petitioner.

Attorney General of California, Kamala D. Harris, Jennifer A. Neill, Senior Assistant Attorney General, Claudia H. Amaral, Supervising Deputy Attorney General, Amber N. Wipfler, Deputy Attorney General, Attorneys for Respondent.

Brick, J.^*

Inmate Roy Thinnes Butler pled guilty to second degree murder in 1988, when he was 20 years old, for his participation in the slaying of a man who had repeatedly, physically abused two other people. Despite the recommendation of California's Department of Corrections (CDC) that Butler be placed on probation, he was sentenced to an indeterminate term of 15 years to life. The Board of Parole Hearings (Board) has found him unsuitable for parole five times since he first became eligible in 1998. Here,¹ Butler seeks a writ of habeas corpus directing the Board to set aside its order denying him parole, which the Board based on the dual grounds that he lacked insight into the murder and sufficient parole plans.

Under our tripartite system of government, the Legislature has directed that parole is the rule, not the exception; the Board, as a part of an executive branch exercising its broad discretionary authority, determines parole suitability pursuant to certain regulatory guidelines and proceedings; and we, mindful of these directives and discretionary authority, as well as constitutional mandates, review the Board's decision to determine whether the prisoner has been afforded due process. This delicate balancing of responsibilities amongst the three branches has sometimes resulted in difficult questions about our role.

Fortunately, our Supreme Court has answered these questions, most recently in In re Shaputis (2011) 53 Cal.4th 192, 134 Cal.Rptr.3d 86, 265 P.3d 253 ( Shaputis II ). Put simply, we review the Board's decision to deny a prisoner parole to determine if it reflects individualized consideration of all the relevant facts and suitability factors and, if it does, is supported by some evidence that the prisoner currently poses a threat to public safety. ( Id . at pp. 209–212, 219–221, 134 Cal.Rptr.3d 86, 265 P.3d 253 ; In re Prather (2010) 50 Cal.4th 238, 255, 112 Cal.Rptr.3d 291, 234 P.3d 541 ( Prather ); In re Lawrence (2008) 44 Cal.4th 1181, 1211, 1212, 1232, 82 Cal.Rptr.3d 169, 190 P.3d 535 ( Lawrence ).)

It almost goes without saying that the bedrock of this standard is due process . The Board's decision must reflect consideration of the interrelationship of all relevant facts and suitability factors in determining whether a prisoner is currently dangerous. ( Shaputis II, supra, 53 Cal.4th at p. 225, 134 Cal.Rptr.3d 86, 265 P.3d 253 ; Prather, supra, 50 Cal.4th at p. 255, 112 Cal.Rptr.3d 291, 234 P.3d 541 ; Lawrence, supra, 44 Cal.4th at p. 1212, 82 Cal.Rptr.3d 169, 190 P.3d 535.) A prisoner cannot be denied parole based on the Board's consideration of only one unsuitability factor, or a few. And because parole can only be denied upon due consideration of all relevant facts and factors, and given the great deference we must afford the Board in its decisionmaking, when the Board has denied parole for two reasons, one of which is not supported by some evidence of current dangerousness, and we cannot determine whether the Board would have denied parole for the remaining reason stated, we must grant the petition, vacate the Board's decision, and remand for further Board proceedings. ( In re Criscione (2009) 180 Cal.App.4th 1446, 1461, 103 Cal.Rptr.3d 549 ( Criscione II ); In re DeLuna (2005) 126 Cal.App.4th 585, 598, 24 Cal.Rptr.3d 643 ( DeLuna ); In re Smith (2003) 114 Cal.App.4th 343, 373, 7 Cal.Rptr.3d 655 ( Smith ); In re Capistran (2003) 107 Cal.App.4th 1299, 1306–1307, 132 Cal.Rptr.2d 872 ( Capistran ); Cf. In re Dannenberg (2005) 34 Cal.4th 1061, 1100, 23 Cal.Rptr.3d 417, 104 P.3d 783 ( Dannenberg ).) Both Butler and respondent acknowledge that this is the appropriate procedure.

The Board's decision to deny Butler parole does not meet a number of essential due process requirements. Its first reason for denial, that Butler lacked sufficient insight into the murder, is not supported by any evidence. Butler has expressed responsibility and ample remorse for, and an understanding of why, he participated in, the murder. The Board's decision, therefore, should be allowed to stand only if it is clear the Board would have denied Butler parole based on the only other stated reason for the denial, Butler's insufficient parole plans. It is not clear that it would and, for this reason, we must grant the petition, vacate the decision, and remand for further proceedings.

Three other aspects of the decision inform this conclusion.

First, the Board related its concern that Butler had insufficient parole plans directly to insight, making it even less clear that it would have denied him parole for insufficient plans alone.

Second, as both Butler and respondent acknowledge, if the Board's decision does not reflect individualized consideration of all relevant facts and factors we also must grant the petition. The Board's decision here does not. After the most general and pro forma of references to the record and regulatory factors, the Board focused entirely on just its two reasons why Butler was unsuitable for parole, despite a record replete with reasons for suitability. This is insufficient, and makes it particularly unclear what the Board would have decided based on its parole plan concerns alone.

Finally, the Board's reasoning about Butler's parole plans was flawed in several respects.

Therefore, we grant the petition and remand the matter to the Board for further proceedings.

BACKGROUND AND PROCEEDINGS BELOW

Preconviction History

Butler was born in August 1967. His home life was not stable. At the age of three, his mother, who was then 17 years old, surrendered custody to a woman who was not a relative, but whom Butler called his godmother. Although the chronology is somewhat vague, it appears that this woman raised Butler until he was 15, at which point he committed a petty theft that resulted in him being declared a ward of the juvenile court.² After spending six months and graduating from Alameda County's Senior Boys Camp, Butler resumed living with his mother. When she moved away, Butler tried living with his biological father, but then returned to his godmother. He did not complete high school, but obtained a GED at the East Bay Skill Center. It was about this time, when he was 20 and not regularly employed, that Butler met Jane Woods.

Butler's first contact with Woods, who was 24 years old at the time, was on a social party line. It was after they met that Butler learned of Woods's relationship with one Richard Davis. Woods lived with Davis, who was 17 years old. Even from afar, Davis evoked revulsion from correctional officials who had subsequent dealings with Butler. One of those officials described Davis as, "to put it mildly, maladjusted," who was "using his roommate ... as a punching bag, beating her as often as four times a week and causing her to be sent to the hospital on several occasions. She also lost her baby due to a miscarriage following a beating." Determined to put a halt to this, Woods and Lanzester Hymes, who had his own issues with Davis, "decided that Davis would have to be taught a lesson so that he would stop brutalizing this woman." Butler was drawn into the plot.

The Commitment Offense

Although some details remain murky, the general features of Davis's death on September 28, 1987, are fairly clear. Initially, while walking on the street, Davis was attacked by a stranger with what was described as a baseball bat or ax handle. Butler certainly knew in advance, almost certainly facilitated the attack, and may even have instigated it. Bloodied, Davis staggered to a hospital, where he was treated and released. Davis then returned to his apartment with Woods, unaware that, having been alerted by Woods, Hymes and Butler were waiting for him, having resolved that he should die. Hymes stabbed Davis once in the chest while Butler was hiding in the bathroom; although armed with a knife, he did not use it. Butler "snuck out" of the house, discarded the knife and was arrested shortly thereafter.

Hymes pled guilty to first degree murder, while Woods and Butler pled guilty to second degree murder.³ The probation officer did not actually recommend that Butler be admitted to probation, but (reading between the lines) his report was sufficiently sympathetic that it prompted the trial court to request "[a] diagnostic study and recommendation [pursuant to] Penal Code section 1203.03... [¶] ... with the objective of assessing [Butler's] potential for functioning successfully on probation."

The CDC's recommendation was as follows: "Despite Mr. Butler's plea to [m]urder [s]econd, diagnostic staff regard him to be a suitable probation candidate. He has an insignificant record, and his role in the offense was a minor one. There is no evidence that he identifies with delinquent values, and he is not viewed as a threat to the community. He is seen as having the wherewithal to succeed under local supervision." "The offense is seen as being highly situational. It is therefore recommended that [Butler] be given a suspended prison sentence with probation and the conditions he serve an appropriate period of local confinement, possess no weapons, maintain gainful employment, and perform 200 hours of community service work."

The recommendation was not accepted. On August 29, 1988, Butler was sentenced to state prison for a term of 15 years to life.

Postconviction Record

Butler had an initial spate of disciplinary problems—none involving violence of any kind—and they abated in time. From ...