In re Lee, A117288 (Cal. App. 10/25/2007)

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In re CURTIS LEE, on Habeas Corpus.

A117288

Court of Appeals of California, First Appellate District, Division Three

October 25, 2007

NOT TO BE PUBLISHED

Appeal from the Alameda County Super. Ct. No. 83157C.

SIGGINS, J.

Petitioner Curtis Lee seeks a writ of habeas corpus to compel his release from prison. Petitioner alleges that the Governor improperly reversed his grant of parole by the Board of Parole Hearings (the Board). The Governor based his decision on the gravity of petitioner's crime. Because the Governor's conclusion that petitioner's offense was an especially grave second degree murder is unsupported by "some evidence" in the record, we grant the petition for writ of habeas corpus. But we will not order petitioner's release. Instead, we remand this case to the Board for further proceedings consistent with this opinion.

FACTS OF THE CRIME

Petitioner was 18 years old and just days away from his high school graduation when he was involved in a late night shooting in Oakland that resulted in his conviction for second degree murder and three counts of assault with a deadly weapon, all enhanced due to his personal use of a firearm.

The following facts describing petitioner's crime are taken in their entirety from this court's prior opinion (People v. Lee (Jan. 27, 1989, A038374 [nonpub. opn.]) that affirmed his conviction.¹ "[Petitioner] was driving home with his companions, Robert Turner, Tim Washington and the driver, Antoine Ware, when they passed [John] McDonald and his friends standing near the corner of 90th Avenue and East 14th Street. Eric Webster's brother, Donnell, and others were standing nearby. Donnell and possibly Eric Webster were members of the `85th Street' gang, whereas Turner, Washington and Ware were members of the rival `69th Street' gang. As the car approached the group, Donnell and the driver, Ware, exchanged some words. Suddenly, several gunshots were heard. [Petitioner] and Turner both testified that Donnell screamed `shoot at them,' at which point Eric Webster shot at the car as they sped away.

"A short distance later Ware stopped the car. [Petitioner], Washington and Turner got out, opened the trunk and retrieved weapons which Washington and Turner had placed in the trunk earlier. The three passengers returned to the car, and at Washington's direction Ware drove looking for McDonald and his friends, believing that the shots came from McDonald's group. [Petitioner] and his companions came across the four youths walking near 87th and D Streets. Ware stopped the car and the three passengers exited and began shooting. One of the bullets hit McDonald in the head, killing him. The other three youths were not injured. The autopsy revealed that McDonald was killed by a bullet fired from a .45 caliber weapon. A slug found in a nearby apartment was a .38 caliber type. Turner's gun was a .380 caliber automatic pistol. Washington used a. 45 caliber handgun, which was probably the murder weapon. The .38 caliber slug could have been fired from [petitioner's]. 357 magnum.

"In a taped statement to the police, [petitioner] admitted: `I got out of the car. I shot at them. We shot at them.' At trial, he testified that he fired because he was afraid and acted in self-defense. He intended only to scare the others off and that the only shots he fired were two or three shots into the air." (People v. Lee, supra, [nonpub. opn.] [typed opn. pp. 1-2].)

HISTORY OF PROCEEDINGS AND PETITIONER'S INCARCERATION

Petitioner was convicted of the second degree murder following a jury trial. He had no prior criminal record, and would have been considered a suitable candidate for probation were he not ineligible due to his use of a firearm. He has been incarcerated for more than 22 years. "Since his incarceration for the life offense, Mr. Lee has been disciplined nine times for rules violations, including possession of alcohol, possession of marijuana, refusing to submit to urinalysis, and disrespect to staff. He has also been counseled eight times for minor misconduct." The more serious disciplinary matters occurred in petitioner's earlier years of incarceration and he has been free of any serious discipline for more than 10 years.

"To his credit, however, Mr. Lee has made efforts while incarcerated to enhance his ability to function within the law upon release. He has participated in and completed several vocations, including Computer Refurbishing, Computer Repair, Computer Applications, Personal Computer Servicing, Trouble Shooting, Meter Usage, Refrigeration/Air Conditioning, and Screen Process Printing, and he has held a variety of skilled institutional jobs. He has also availed himself of an array of self-help and therapy, including Alcoholics Anonymous, Narcotics Anonymous, Victim Offender Reconciliation Group, Men's Violence Prevention, Life Plan for Recovery, Building for the Earthquakes of Tomorrow, and `Tawheed' Changing Faces. Likewise, Mr. Lee has received some favorable reports from correctional and mental health professionals over the years, has maintained seemingly supportive relationships with family and others, and has made realistic, confirmed plans to live and work in Alameda County upon release to parole."

The Board convened for the sixth time to consider petitioner's suitability for parole on February 14, 2006, and found him suitable. Among the Board's observations were that the circumstances of petitioner's involvement in the murder were not aggravated, there was some evidence from which to conclude he did not shoot the victim, he had avoided involvement with gangs and drugs during his youth, he had no juvenile record and had been a model prisoner. Pursuant to his constitutional authority, the Governor reviewed the Board's finding of suitability and reversed the Board's decision. In doing so, he concluded that "the second-degree murder for which [Lee] was convicted was especially grave because his actions demonstrated that Mr. Lee premeditated on some level to murder Mr. McDonald. . . . The gravity of second-degree murder perpetrated by Mr. Lee alone is sufficient for me to conclude that his release from prison would pose an unreasonable public-safety risk at this time."

Petitioner challenged the Governor's decision by writ of habeas corpus in the superior court and this court. The superior court denied relief. On April 12, 2007, we ordered the Governor to show cause why the relief sought by petitioner in his petition should not be granted. The Attorney General filed a return to the petition and petitioner filed a denial.² The matter is ready for disposition.

DISCUSSION

A. The "Some Evidence" Standard of Review

In re Rosenkrantz (2002) 29 Cal.4th 616, articulates the standard of review to be applied by the courts to a decision made by the Governor to reverse a grant of parole pursuant to the authority vested in him by article V, section 8, subdivision (b) of the California Constitution. There are a few fundamental precepts within the Rosenkrantz decision that in application guide our review. "Article V, section 8(b), requires that a parole decision by the Governor pursuant to that provision be based upon the same factors the Board is required to consider. Due process of law requires that this decision be supported by some evidence in the record. Only a modicum of evidence is required. Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the Governor." (In re Rosenkrantz, supra, at pp. 676-677.) The decision must also reflect the Governor's individualized consideration of the specified criteria. (Id. at p. 677.) This "some evidence" standard of review has since been held to also apply to judicial review of decisions by the Board. (See In re Barker (2007) 151 Cal.App.4th 346, 365.)

The factors that guide the Board's (and therefore the Governor's) consideration are set forth in Penal Code section 3041 and in regulations promulgated by the Board in California Code of Regulations, title 15, section 2402. We will not repeat all of them here because this case concerns only one of them. A prisoner may be considered unsuitable for parole based upon his commitment offense when: "The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered include: (A) Multiple victims were attacked, injured or killed in the same or separate incidents. [¶] (B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder. [¶] (C) The victim was abused, defiled or mutilated during or after the offense. [¶] (D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. [¶] (E) The motive for the crime is inexplicable or very trivial in relation to the offense." (Cal. Code Regs., tit. 15, § 2402, subd. (c).)

The gravity of a prisoner's commitment offense has been characterized by the courts as an "immutable factor" of unsuitability because, along with the prisoner's previous record of violence, it is one of two factors the prisoner cannot change. (In re Scott (2005) 133 Cal.App.4th 573, 594-595.) In In re Rosenkrantz and In re Dannenberg (2005) 34 Cal.4th 1061, our Supreme Court stated that "particularly egregious" acts beyond the minimum necessary to convict the prisoner of the offense for which he is incarcerated may provide the basis for finding a prisoner unsuitable for parole due to his commitment offense. (In re Rosenkrantz, supra, 29 Cal.4th at pp. 682-683;In re Dannenberg, supra, at p. 1095.) But it is the Board or the Governor's reliance upon a prisoner's commitment offense as the only factor to deny parole that has proved to be the bugaboo in application of the "some evidence" standard by the reviewing courts.

Some courts apply the standard by reviewing the record to determine whether there is some evidence upon which the Governor or the Board could conclude release...