In re Moses

182 Cal.App.4th 1279

In re BENNIE MOSES on Habeas Corpus.

No. A124814.

Court of Appeals of California, First District, Division Two.

March 16, 2010.

Jennifer Sheetz, under appointment by the Court of Appeal, for Petitioner Bennie Moses.

Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Assistant Attorney General, Anya M. Binsacca and Steven G. Warner, Deputy Attorneys General, for Respondent State of California.

OPINION

LAMBDEN, J.

Petitioner Bennie Moses was 30 years old on Thanksgiving Day in 1979 when he and his brother drove around Oakland, California, visiting family and friends. At one of their stops, Moses, having consumed copious amounts of alcohol and talked about "getting even," visited Willie Rhodes, whose brother had killed Moses's father in a gambling dispute five years before. Moses shot Rhodes once at close range, killing him, and fled. He voluntarily surrendered to police later that day. A jury found Moses guilty of second degree murder; the trial court sentenced him to serve 17 years to life in prison. Moses was sent to prison in 1980. Under California's statutory parole scheme he was presumptively eligible for release over a dozen years ago.

Moses's behavior in prison has been exemplary. He has a nearly spotless disciplinary record (his only instance of misconduct was watching television without using the required headphones 27 years ago). He has performed years of outstanding work in the prison laundry. He has shown insight into the causes of his actions and worked to understand and change his behavior by engaging in decades of self-help programs such as Alcoholics Anonymous (AA) and the Victim Offender Reconciliation Group (VORG). He has consistently taken responsibility and repeatedly expressed remorse for his commitment offense. Nonetheless, after 29 years, 13 parole consideration hearings, and three decisions to grant parole by the Board of Parole Hearings (Board), Moses remains in jail. Governor Arnold Schwarzenegger has reversed all three of the Board's decisions to release Moses. We ask, "why?"

The Governor found that Moses's release on parole posed an unreasonable risk of danger to public safety for three reasons, each of which is seriously flawed. First, the Governor concluded that the second degree murder was "especially atrocious." This conclusion is not supported by the evidence, and not only because the Governor ignored, or inaccurately described, certain critical and undisputed factual circumstances. Second, the Governor concluded that, while Moses "says he accepts responsibility for his actions and is remorseful, he maintains that he shot [Rhodes] in self defense." Moses has not maintained such a claim; furthermore, any discrepancies between Moses's account of the shooting are insignificant in light of his undisputed acceptance of responsibility for the crime, his repeated expressions of remorse, and his postconviction history. Third, the Governor stated that, at the time of the murder, Moses "had a significant record of criminal violence," even though Moses did not have such a record. The Governor's analysis merely mentions without discussion other very significant parole suitability factors, such as Moses's flawless behavior in prison for the last 29 years. In short, the Governor's reasoning relies heavily on immutable factors, at times unsupported by evidence, and amounts to little more than the "rote recitation" of only those factors suggestive of risk. (In re Lawrence (2008) 44 Cal.4th 1181, 1210 [82 Cal.Rptr.3d 169, 190 P.3d 535] (Lawrence).)

The Governor did not articulate any rational nexus between his reasons for reversing the grant of parole and any purported present, unreasonable risk of danger to public safety posed by Moses's release, thereby failing to meet the standard necessary for the denial of parole discussed by our Supreme Court in Lawrence, supra, 44 Cal.4th 1181. We conclude that there is no evidence in the record to support the Governor's repeated reversals of the Board's grant of parole and that further consideration by the Governor cannot fill that void.

(1) Therefore, we hold that the Governor's reversal of the Board's decision to grant parole violated Moses's due process rights. We grant Moses's petition, order the Governor to vacate his decision, and reinstate the Board's July 10, 2007 grant of parole.

BACKGROUND

Moses's Second Degree Murder of Rhodes

At Moses's July 2007 parole consideration hearing before the Board, the presiding commissioner read this account of Moses's murder of Rhodes from the Board's April 24, 2006 report:

"`[B]rothers Bennie and Larry Moses were driving around Oakland, stopping in to see friends and relatives and drinking. Bennie consumed copious amounts of alcohol. They stopped at their sister Joyce's house. Joyce was married to Eddie Rhodes, the victim's brother. Bennie, Larry and Eddie then drove to a liquor store, and Bennie Moses showed Eddie Rhodes his 44 Magnum revolver and smiled. Eddie asked Bennie what . . . that was supposed to mean, and received no answer. At the time of this incident, Larry Moses was seated in the back seat of the automobile. When the three men returned to Eddie and Joyce's home, Eddie heard Bennie talking to his sister about getting even. Joyce asked Bennie to leave, so Larry and Bennie departed.

"`Bennie and Larry stopped by the home of their sister Mary. Bennie waited in the car while Larry went inside. Larry walked in, walked around the living room, and left, slamming the door. Mary asked him where he was going, but Larry did not answer. About 3:30 p.m., Willie Rhodes was home with his common-law wife and two adult friends. There were six children in the house, the oldest Ramona . . . aged 13. The adults were in the kitchen and the children were in the dining room. There was a single knock at the front door and in walked Bennie Moses. Bennie walked into the dining room and asked to see Willie Rhodes. Ramona saw that Bennie had a large revolver in his right hand and that the hammer was cocked. Willie came out of the kitchen, noticed the gun, and said that it was a nice piece.

"`The two men then walked into the living room and stopped. Bennie raised the gun to Willie's left side, with the muzzle a few inches from him and fired. Willie stumbled back and collapsed. Ramona saw what looked like a rifle barrel come through the open front door and then disappear. Next, Ramona saw Larry Moses look in the front door, and then he closed the door. Bennie said, bye, and went out the door. Ramona then went across to a bathroom window and saw Bennie and Larry Moses running across a parking lot toward the back door of a Laundromat. Willie Rhodes was pronounced dead about 40 minutes after the police arrived at the scene. The results of the autopsy were that the bullet had entered the victim's chest on the left side and came out his right side, finally lodging in his right bicep. The bullet had destroyed the victim's liver.'"

This account is almost identical to that written by a senior trial deputy district attorney of the Alameda County District Attorney's Office in a July 1980 letter to the probation department, prior to Moses's sentencing. That letter further recounted: "When the police arrived, chaos reigned. Willie's common-law wife, Esther . . ., in a fit of hysteria had shoved her hand through a window and been severely gashed on the arm. She was standing on the front porch amid a large amount of blood while inside kids were running in all directions, screaming and yelling."

The deputy district attorney also stated that Moses's father was shot to death by the victim's brother five years before over a $2 gambling debt; that Moses surrendered to police shortly before midnight on the day of the killing; that his brother surrendered the next day; that the murder weapon, registered to Moses, was found in February 1980 under a house in San Leandro; and that Moses's brother was convicted of voluntary manslaughter.

The record also contains an August 8, 1980 probation department report. It summarized Moses's offense this way: "On November 22, 1979 (Thanksgiving Day), the defendant and his brother [(a codefendant)] visited various relatives during the course of the day. Defendant was drinking heavily. The two defendants went to the home of the victim . . . . Defendant entered, asked to see Willie, and the two men went in the living room. A short time later, Willie was killed by a single shot, and defendant and his brother ran away from the scene."

At the 2007 Board hearing, the presiding commissioner, after reading the account, asked Moses to state what happened in his own words. Moses stated: "We left my sister Joyce's house, Mary's house, and then we was on my [sic] way over to my auntie's house, my aunty, she lived a few blocks down from Willie. My brother [Larry] had to use the bathroom." Moses continued: "And before, he couldn't wait, so he went by the big tree, and I went on and knocked on the door and went in. And then I see Willie, like I said, and we walked into the living room, me and him went to arguing there for a minute. I started to walk, tried to walk, and then we kept on arguing and fussing. Next thing I know, he was talking about hurting me. See, I know Willie really well, and he ain't a good person. And next thing I knew, he went to reach in his pocket, and I pulled mine out of my waist, it wasn't in my hand, and shot him and ran. . . . My brother never entered the house, and he didn't have a rifle."

Moses told the Board that he had his gun tucked in his waist when he entered Rhodes's home; that he did not know why his brother Larry went into Mary's house and slammed the door; that he did not know why Larry needed to stop at Rhodes's house when they were a couple of blocks from their destination, but guessed that he could not "hold it," which was also why Larry relieved himself by the tree rather than enter Rhodes's house; and that his brother was under the...