In re Jacobson

65 Cal.Rptr.3d 222

154 Cal.App.4th 849

In re Arnold JACOBSON, On Habeas Corpus.

No. B195521.

Court of Appeal, Second District, Division Four.

August 28, 2007.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Anya M. Binsacca and Amanda Lloyd, Deputy Attorneys General, for Appellant.

Jeffrey A. Lowe, under appointment by the Court of Appeal, for Respondent.

WILLHITE, J.

Governor Arnold Schwarzenegger appeals from the superior court's order granting petitioner Arnold Jacobson's petition for writ of habeas corpus, and vacating the Governor's decision to reverse the Board of Parole Hearings' determination that petitioner is suitable for parole. (Pen. Code, § 1507.)¹ We reverse the superior court's order. In doing so, we apply the "extremely deferential" standard of review of the Governor's decision compelled by In re Rosenkrantz (2002) 29 Cal.4th 616, 128 Cal.Rptr.2d 104, 59 P.3d 174 (Rosenkrantz)— a standard that examines only whether the factual basis on which the Governor relies to deny parole gives due consideration to the factors he is required by law to consider as applicable to the particular inmate, is drawn from the record before the Board, and is supported by "some evidence" in that record. We disagree with the recent decisions of some courts of appeal (In re Cooper (2007) 153 Cal.App.4th 1043, 62 Cal.Rptr.3d 907; In re Lawrence (2007) 150 Cal.App.4th 1511, 59 Cal.Rptr.3d 537, In re Elkins (2006) 144 Cal.App.4th 475, 50 Cal.Rptr.3d 503, In re Lee (2006) 143 Cal.App.4th 1400, 49 Cal. Rptr.3d 931 and In re Scott (2005) 133 Cal.App.4th 573, 34 Cal.Rptr.3d 905), which have transmuted the Rosenkrantz standard into one that permits the court to reweigh evidence, recalibrate relevant factors, and reach an independent determination whether the inmate continues to pose a risk to public safety. (See also In re Roderick (2007) 154 Cal.App.4th 242, 65 Cal.Rptr.3d 16, 2007 WL 2343737 (Al 13370, filed Aug. 17, 2007) [overturning parole denial by Board of Parole Hearings].)

FACTUAL AND PROCEDURAL BACKGROUND

In an October 1985 non-jury trial, a judge convicted petitioner of one count of second degree murder (Pen.Code, § 187)² and one count of attempted murder (§§ 664/187), finding that he used a firearm (§ 12022.5) in both crimes. On the murder count, the judge sentenced him to a term of 17 years to life in state prison (15 years to life for murder, plus two years for the handgun use enhancement), and a concurrent term of nine years for the attempted murder.

The convictions arose from a shooting on March 13, 1985, when petitioner was 59 years old. The attempted murder victim was petitioner's ex-girlfriend, Sonja Sharlow; the murder victim was Shadow's friend, Patty Silviera.

On the night of the shooting, petitioner followed Sharlow to a bar in Long Beach, the Barge Inn. Petitioner had been following Sharlow frequently since their break up. When Sharlow saw petitioner in his camper truck in the parking lot, she ran toward the bar. Petitioner shot her in the leg with a .25 caliber pistol. Sharlow was able to enter the bar, where she told her friend, Silviera, what had happened. Silviera had been acting as an intermediary between petitioner and Sharlow in petitioner's attempt at reconciliation. Silviera ran out of the bar to petitioner's camper. Petitioner shot her in the chest at close range, killing her. Petitioner fled in his camper. Later, police found one .25 caliber bullet and four spent .25 caliber shell casings at the scene. Petitioner abandoned his truck, discarded the gun, and fled the state. He later returned to California, and was apprehended on March 25, 1985.

At trial, petitioner testified that he was intoxicated at the time of the shooting, and did not intend to injure either Sharlow or Silviera. He had been drinking all day, and followed Sharlow to the Barge Inn. When Sharlow got out of her car, he asked to speak to her, but she ran toward the bar. Petitioner retrieved a handgun from under a mattress in the back of his camper, and fired. Then Silviera suddenly appeared beside his truck. Petitioner was holding the gun in his right hand, leaning against the door. Startled by Silviera, petitioner jerked back, and the gun went off.

In convicting petitioner of second degree murder in the killing of Silviera, the judge rejected petitioner's version of events. On appeal, this court affirmed the judgment. We held that substantial evidence supported the trial judge's findings that "appellant's capacity for malice was not impaired by voluntary intoxication since he was able to drive his camper truck all day, recalled the entire day's events, and had known where to quickly retrieve his handgun. Malice aforethought for second degree murder was implied because appellant was familiar with guns yet deliberately shot Silviera in the chest at close range without provocation, showing a conscious disregard for human life."

Petitioner was received by the California Department of Corrections on November 6,1985. The Department set his minimum eligible parole date as July 26,1995.

In his ninth parole review on April 7, 2005, the Board found petitioner suitable for parole.³ He was then age 80, and had served more than 19 years in prison since his commitment. In finding that petitioner would not pose an unreasonable risk of danger to public safety, the Board cited many positive factors supported by the record. Before his prison commitment, petitioner had no significant criminal history. While in prison, he had only three disciplinary violations. The most recent (a Sept. 1992 citation for conspiracy to introduce dangerous contraband) occurred more than 12 years earlier, and was reduced to an administrative violation. Petitioner had consistently participated in Narcotics Anonymous and Alcoholics Anonymous. He had realistic parole plans, which included a prospective residence and job, Social Security income, and a support system provided by fellow military veterans involved in the American Legion. According to the Board, petitioner had shown "signs of remorse and indicates that he understands the nature and the magnitude of his crime. He accepted responsibility for it and [has] a desire to change towards good citizenship." The Board noted that a 2003 report from his correctional counselor, and reports from psychologists in 1999 and 2001, expressed the opinion that petitioner posed a minimal risk to public safety. The 2001 psychological report stated that given petitioner's "history, his mental condition, his age and physical health [petitioner suffers from a fused left knee] it is difficult to see him as becoming in any way dangerous."

On August 24, 2005, the Governor reversed the Board's parole grant. In his written decision, the Governor noted that petitioner "has remained discipline-free since 1992" and "has also taken steps in prison to enhance his ability to function within the law upon release. He has received vocational training through various institutional jobs, has participated in an array of self-help and therapy ..., and has received positive evaluations from mental-health and correctional professionals. Likewise, he has made confirmed parole plans that include housing arrangements and legitimate means for financial support. These are all factors supportive of [petitioner's] release to parole."

However, based on the circumstances of petitioner's commitment offense, the Governor concluded that petitioner posed an unreasonable risk of danger if paroled. Although the Board had cited petitioner's acceptance of responsibility for the murder of Patty Silviera and his understanding of the nature and magnitude of his crime, the Governor questioned the extent of petitioner's true acceptance of responsibility, and questioned petitioner's consequent expressions of remorse. The Governor observed that petitioner consistently maintained that he killed Patty Silviera only because "when [he was] sitting in his truck with the gun still in his hand after shooting Ms. Sharlow, he was startled by Ms. Silviera's confrontation and made a jerking motion causing the gun to discharge." The Governor noted, however, that "the trial court [that heard the evidence] did not believe [petitioner's] version of the crime and found him guilty of second-degree murder. Moreover, the Court of Appeal, in its opinion affirming the judgment ... concluded, `[m]alice aforethought for second degree murder was implied because [petitioner] was familiar with guns yet deliberately shot ... Silviera in the chest at close range without provocation, showing a conscious disregard for human life.'"

The Governor found the killing of Silviera to be particularly aggravated: "[Petitioner] followed [Sonja] Sharlow to a bar, shot and wounded her when she refused to talk to him, and then shot ... Silviera in the chest `deliberately' and `at close range' when she tried to approach him afterwards. [Petitioner's] murderous actions make the life offense for which he was convicted especially grave because they included his violent victimization of two women—resulting in his conviction for both murder and attempted murder and exceeding the minimum necessary to sustain a conviction for second-degree murder. The gravity of the murder committed by [petitioner] is alone a sufficient basis to conclude at this time that his release from prison would pose an unreasonable public-safety risk." The Governor also noted that although petitioner "told the 2003 Board that he could not remember how many gunshots he fired in total, the appellate decision stated that one bullet and four casings were found at the crime scene, indicating that [petitioner] fired multiple shots in the parking lot that night."

The Governor discounted petitioner's current age as a factor favoring parole. "At 80 years old now, [petitioner] has been in prison for a long time and can be said to have...