In re Robert SHIPPMAN

185 Cal.App.4th 446

110 Cal.Rptr.3d 326

In re Robert SHIPPMAN, on Habeas Corpus.

No. A125182.

Court of Appeal, First District, Division 3, California.

June 8, 2010.

Review Denied Sept. 22, 2010.

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Benjamin Ramos, Under Appointment by the Court of Appeal Under the First District Appellate Project's Assisted Case Program, for Petitioner.

Edmund G. Brown Jr., Attorney General of California, Julie L. Garland, Senior Assistant Attorney General, Anya M. Binsacca, Supervising Deputy Attorney General, Brian C. Kinney Deputy Attorney General, for Respondent.

JENKINS, J.

This matter involves a petition for writ of habeas corpus. Inmate Robert Shippman, ¹ serving an indeterminate life sentence for the second degree murder of his wife, challenges as contrary to the evidence a decision by the Board of Parole Hearings that he remains an unreasonable risk to public safety and, thus, unsuitable for parole. For reasons we will explain, we deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Commitment Offense.

On April 23, 1993, Shippman (petitioner) fatally shot his third wife, Juli, and then immediately turned the gun on himself, inflicting serious but nonfatal wounds. At this time, petitioner, age 55, and Juli, age 28, were separated. Juli wanted out of the marriage and was having an extramarital affair with a local police officer, her second such affair during the couple's two year marriage. Petitioner was taking Valium to alleviate the stress and anguish he suffered from the breakdown of his marriage.

About a month before the murder, petitioner had arranged to take Juli to breakfast in Calistoga so they could discuss their marital problems. However, petitioner refused to stop in Calistoga as planned, and instead drove Juli on to Ukiah, where he forced her to talk to him for about four hours. Juli later obtained a restraining order against him.

Nonetheless, according to petitioner, on the day of her murder, Juli agreed to come to his house to pick up her mail, which he said would be left on the porch. Petitioner also stated that Juli then agreed to go for a ride in his truck, during which time he intended to convince her to end her extramarital affair. The estranged couple stopped near Howell Mountain Road, where they talked for about 10 or 15 minutes, at which time Juli told petitioner she was leaving to call her lover. Petitioner, angered by Juli's statement, retrieved a rifle he kept in his truck for hunting trips, and shot her three times, twice in the chest and once in the back of the head. He then shot himself three times, twice in the chest and once in the head.

Later that morning, petitioner's friend, who had been staying at petitioner's house, found Juli's vehicle parked on a nearby street, still running and with her purse inside.

According to statements made by Juli's brother to police shortly after her murder, petitioner and Juli had been having marital difficulties for months and she was “terrified” to be alone with him. Further, petitioner had recently forced Juli to go with him to Ukiah, where he had been “extremely violent towards her.” Consistent with these statements, a probation report submitted in the case noted “a number of police reports at the department relating to the events surrounding [the couple's] separation and of the problems they were having.”

In September 1993, petitioner pleaded guilty to second degree murder, with an enhancement for use of a firearm, and was sentenced to an indeterminate term of 15 years to life in prison, plus four additional years for the enhancement. Petitioner's minimum parole eligibility date was scheduled for August 15, 2005.

II. Petitioner's Personal Background.

Petitioner was raised on a chicken farm in central California by his mother and father with 10 older siblings. Petitioner's parents remained married, and provided well for their large family. His father worked as a rancher and then, upon his retirement, became a local pastor. Petitioner recalls a happy, stable childhood, with no issues of emotional or physical abuse, substance abuse, disciplinary problems or medical problems of any kind. Petitioner had no juvenile record or criminal record aside from his commitment offense.

Petitioner graduated from high school and attended one year of college before meeting and marrying his first wife and leaving school to gain employment. Petitioner divorced his first wife, with whom he has one daughter, after seven years of marriage when she became pregnant by one of his best friends. Petitioner denies any history of physical or emotional abuse in his first marriage, but admits hitting his first wife's lover in the head with a baseball bat, “put[ting] him in the hospital.”

Two years after divorcing his first wife, petitioner married his second wife, with whom he shares a daughter and stepson. As with his first marriage, petitioner denies any history of physical abuse or emotional abuse in his second marriage, but admits “there was one [incident] with my [second] wife,” which stemmed from the couple's disagreement over how best to handle their son's drug abuse. Petitioner's second marriage ended after 22 years, when he had an extramarital affair with Juli, his eventual third wife and the victim in this case.

Prior to his incarceration, petitioner was continuously employed, as a plumbing contractor and owner of a plumbing company, and as the owner of a gas station. He had no problems with alcohol or drug abuse or history of mental problems.

III. Petitioner's Incarceration.

While serving his indeterminate sentence, petitioner has completed certificates in vocational plumbing and carpentry, and obtained skills in vocational electricity. In addition, he has worked as a plumber, and voluntarily taught basic plumbing and electricity skills to other inmates. His work reports have all been satisfactory or above average.

Petitioner has had no disciplinary problems while incarcerated, and has participated in one 44-week anger management course and one 14-week self-help course entitled “Awareness and Empathy for Survivors of Crime.” He has also become a self-described born-again Christian, taught Bible study, and coached softball.

Petitioner has undergone at least two psychological evaluations during his incarceration. The results of both were favorable and supportive of his release. For example, a 2004 evaluation concluded that, “based upon his years of incarceration, the maturity he has gained over those years, his deep sense of sorrow and remorse about the commitment offense, his ever-deepening awareness of spiritual truths, and the fact that he has learned that he must not take things into his own hands when disaster strikes, he actually poses less of a threat to society than the average citizen.”

The most recent evaluation, prepared in 2008 in connection with this latest effort at parole, describes petitioner, now age 70, as being at a “very low” risk for future violence. The 2008 evaluation further notes that petitioner has “programm[ed] in an excellent fashion” during his incarceration and “shows no indications of psychopathy.” When asked to describe his strengths, petitioner identified his faith in God; when asked about his weaknesses, he identified “too many sweets.”

IV. Petitioner's Parole Hearings and Board Decisions.

In September 2004, petitioner participated in his first parole hearing, after which a panel of hearing officers from the Board of Parole Hearings (the Board) denied parole for four years, finding him unsuitable for release.

On October 22, 2008, petitioner's second parole hearing (known as the “first subsequent parole hearing”) was held. At this hearing, the presiding commissioner questioned petitioner at length regarding his suitability for parole, touching on, among other topics, Juli's murder; his social history, including his three failed marriages; his accomplishments during incarceration; and his future plans. In addition, the district attorney questioned petitioner in greater detail regarding “control issues” he experienced in his relationships with Juli and his other wives, and any efforts he has made while incarcerated to address this antisocial behavior.

Following this hearing, the Board decided petitioner remained unsuitable for parole because he continued to pose an unreasonable risk of danger to public safety. The Board based its decision on the following grounds: (1) the commitment offense was particularly aggravated in nature; (2) petitioner lacks insight into what caused him to commit the offense and to otherwise engage in controlling behavior; (3) he has an unstable social history; and (4) his parole plans are “marginal.” Of particular concern to the Board was petitioner's apparent ignorance of the factors that “trigger” his irrational need to control others, the behavior that led him to commit murder. The Board expressed optimism, however, regarding petitioner's exemplary disciplinary record while incarcerated and his lack of a juvenile or other criminal record, and encouraged him to participate in additional self-help programs to better prepare him for release. Accordingly, the Board denied parole for three additional years.

On April 1, 2009, petitioner filed a petition for writ of habeas corpus in superior court. On May 4, 2009, the superior court denied his petition, finding the Board's denial of parole adequately supported by the evidence in the record. Petitioner then filed for habeas relief in this court.

We issued an order to show cause and appointed counsel for petitioner, after concluding based on the factual allegations in his petition that he may be entitled to habeas relief. (See People v. Duvall (1995) 9 Cal.4th 464, 474-475, 37 Cal.Rptr.2d 259, 886 P.2d 1252.) In compliance with this order, the prosecution filed a timely return, and petitioner thereafter filed a traverse responding to the issues...