In re L.L.

265 P.3d 253

134 Cal.Rptr.3d 86 (Mem)

53 Cal.4th 192

In re L.L.

No. S196866.

Supreme Court of California

Nov. 16, 2011.

OPINION

CORRIGAN, J.—

Here we reaffirm the deferential character of the "some evidence" standard for reviewing parole suitability determinations. Whether to grant parole to an inmate serving an indeterminate sentence is a decision vested in the executive branch, under our state Constitution and statutes. The scope of judicial review is limited. The "some evidence" standard, which we articulated in In re Rosenkrantz (2002) 29 Cal.4th 616 [128 Cal.Rptr.2d 104, 59 P.3d 174] (Rosenkrantz) and refined in In re Lawrence (2008) 44 Cal.4th 1181 [82 Cal.Rptr.3d 169, 190 P.3d 535] (Lawrence), is meant to serve the interests of due process by guarding against arbitrary or capricious parole decisions, without overriding or controlling the exercise of executive discretion. (Rosenkrantz, at pp. 664-665; Lawrence, at p. 1212.)

This is our second grant of review to consider whether a majority of Division One of the Fourth District Court of Appeal properly applied the "some evidence" standard to a decision denying parole for petitioner Richard Shaputis. Previously, we decided the majority had correctly asked whether the evidence supported a finding that petitioner posed a current threat to public safety, but improperly substituted its own conclusion for that of the Governor. (In re Shaputis (2008) 44 Cal.4th 1241, 1255 [82 Cal.Rptr.3d 213, 190 P.3d 573] (Shaputis I).) We held that some evidence supported the Governor's decision that paroling petitioner would pose an unreasonable risk of danger to society due to (1) the gravity of the offense, which was a culmination of years of domestic abuse inflicted by petitioner on his wife and family, and (2) petitioner's lack of insight and failure to accept responsibility for his actions. (Id. at pp. 1258-1261.)

(1) We now conclude that the Court of Appeal majority has again invaded the province of the parole authority, in this case the Board of Parole Hearings.¹ After our decision in Shaputis I, petitioner refused to be interviewed by the psychologist appointed by California's Department of Corrections and Rehabilitation (CDCR) to perform a comprehensive risk assessment for the Board's consideration. Instead he hired his own psychologist, who submitted a report. Petitioner also refused to testify at his parole hearing. He chose to submit a written statement prepared with the assistance of counsel. The Court of Appeal majority gave credence to these sources of information, and faulted the Board for relying on earlier psychological evaluations and statements by petitioner. However, it is not for the courts to reweigh the evidence before the Board, and an inmate who restricts the Board's access to current information is in no position to complain about the Board's reliance on other relevant evidence. The "some evidence" standard does not permit a reviewing court to reject the Board's reasonable evaluation of the evidence and impose its own judgment.

We also take this occasion to offer some general guidance to the Courts of Appeal on inmates' lack of insight as a parole unsuitability factor. As noted by the majority below, lack of insight has played an increasingly prominent part in parole decisions and the ensuing habeas corpus proceedings.

I. BACKGROUND

A. Procedural History

Petitioner was convicted of a second degree murder committed in 1987, and was sentenced to a term of 15 years to life in prison with a two-year enhancement for firearm use. His minimum eligible parole date was in 1998. The Board found him unsuitable for parole at hearings held in 1997, 2002, and 2004. After the third denial, petitioner sought a writ of habeas corpus, which was denied by the trial court. Petitioner took his application to the Fourth District Court of Appeal, which granted him relief in a split decision. The Board was ordered to vacate its denial of parole, conduct a new hearing, and refrain from relying on the same findings it made in 2004 unless there was new or different evidence.

Constrained by these directions from the court, the Board found petitioner suitable for parole at a hearing in March 2006, though the presiding commissioner stated that she continued to believe he was unsuitable for the reasons stated in the Board's 2004 decision. In August 2006, Governor Arnold Schwarzenegger reversed the Board's decision. Petitioner again sought a writ of habeas corpus from the trial court, lost, proceeded to the Court of Appeal, and succeeded in persuading a majority of that court to grant him relief.

We granted review, and considered the matter in conjunction with Lawrence, supra, 44 Cal.4th 1181. In Lawrence, we held that the "some evidence" standard of review applicable to parole suitability determinations applies not simply to the factors relied on for denial, but to the ultimate decision on whether the inmate's release will unreasonably endanger public safety. (Id. at p. 1209; see also id. at p. 1235 (dis. opn. of Chin, J.) [agreeing with the majority on this point].) In Shaputis I, we decided that even though the Court of Appeal majority had properly framed its inquiry, it had failed to defer to the Governor's determination that petitioner remained dangerous, which was supported by some evidence. (Shaputis I, supra, 44 Cal.4th at p. 1255.) Accordingly, we reversed the Court of Appeal's judgment. (Id. at pp. 1259-1261.)

Petitioner appeared for another parole hearing in 2009. The Board denied parole, basing its decision on the circumstances of the offense as well as petitioner's failure to gain insight into his behavior and take responsibility for his crime. Petitioner unsuccessfully petitioned the trial court for a writ of habeas corpus. For the third time, however, a majority of the Court of Appeal granted him relief. We granted the Attorney General's petition for review.

B. The Commitment Offense

Petitioner was 50 years old when he murdered his wife.² On January 24, 1987, his neighbor heard a gunshot between 8:30 and 9:00 p.m. At 9:58 p.m., petitioner called 911. He was screaming and the call was cut off. Petitioner called back immediately and told the dispatcher that he and his wife had had "a little fight" and he shot her. She was dying and needed help. Petitioner said he had not known the gun was loaded. The dispatcher kept him on the telephone until police officers arrived at his house, then directed him to go outside with his hands in the air. The police arrested petitioner, entered the house, and found his wife Erma dead on the living room floor, with a cocked revolver lying nearby. An open box of ammunition rested on a table.

The cause of death was a single gunshot wound to the neck, inflicted at close range. It was likely that petitioner was sitting and Erma was in the process of standing up or bending forward when he shot her. She had probably died within a second or two. Her body lay face up and was cold to the touch. Blood had partially dried on her face, neck, and head. Postmortem lividity, caused by pooling of the blood, had developed on the lower parts of her right leg and arm.

The murder weapon could not be fired unless the hammer was manually cocked before the trigger was pulled. A "transfer bar" prevented accidental discharge by making the gun impossible to fire unless the trigger was pulled and held back.³ The gun was in excellent working condition. Another handgun and three rifles were in the house. All the other guns were unloaded. Both petitioner and Erma had been drinking. Her blood-alcohol level was 0.22 percent. Petitioner was not tested initially because the officers did not think he was intoxicated. At 3:00 a.m., his blood-alcohol level was 0.14 percent. Petitioner presented evidence that the level could have been 0.24 percent at 10:00 p.m Petitioner made a number of spontaneous statements while being guarded at the police station, among them: "I dialed 911." "I had the gun. It went off. And then went off again." "I don't know why it went off." "She was my baby." "She said dial 911." At trial, two of petitioner's daughters testified about past incidents of domestic violence between the spouses, including a prior shooting incident. Erma's parents testified that when he was upset with Erma, petitioner would sometimes threaten to send her "home in a box." They thought he was joking.

C. Petitioner's History of Domestic Violence

Information about petitioner's long history of domestic violence was developed in the probation report and the CDCR reports prepared in connection with the parole hearings. Petitioner's first wife had divorced him after suffering severe physical abuse. On one occasion, he jumped on her stomach when she was pregnant, causing her to miscarry. Petitioner also abused his four daughters, sometimes holding a knife to their throats when he thought they had misbehaved. He singled out one daughter in particular, because she was the weakest emotionally. His daughter Annette said petitioner was a different person behind closed doors than he was when others were present.

One daughter remained in petitioner's custody following the divorce, and lived in his home until 1978. Petitioner and Erma were married in 1964. His daughter saw petitioner beat Erma on several occasions, and noticed large bruises on her body. Around 1972, he beat Erma so badly that she needed plastic surgery. In 1978 his daughter, then 16, accused petitioner of raping her twice when he was intoxicated. He was charged with rape by threat and with incest, but pleaded no contest to reduced misdemeanor charges. Between 1981 and 1986, a friend noticed bruises on Erma every four to six months. Erma told her that petitioner flew into rages and beat her. Around 1985, Erma complained that he had cracked her ribs. About 18 months before the murder, petitioner shot at Erma.

Petitioner's criminal record before the murder encompassed more than the conviction arising from the...