In re Willard, B202516 (Cal. App. 7/3/2008)

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In re EDWARD JAMES WILLARD, on Habeas Corpus.

B202516

Court of Appeal of California, Second Appellate District, Division One

July 3, 2008

Not to be Published

Petition for a writ of habeas corpus following order of the Superior Court of Los Angeles County, No. A080194, Steven R. Van Sicklen, Judge. Petition granted.

Edward James Willard, in pro. per., and Melanie K. Dorian, under appointment by the Court of Appeal, for Petitioner.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Heather Bushman and Amanda Lloyd, Deputy Attorneys General, for Respondent.

VOGEL, J.

Edward James Willard pled guilty in 1981 to one count each of robbery and second degree murder with a knife and was sentenced to state prison for an indeterminate term of 21 years to life with a minimum parole eligibility date of September 7, 1995. (Pen. Code, §§ 211, 187, subd. (a), 12022, subd. (b).) In 2006, the Board of Parole Hearings found for the eighth time that Willard is unsuitable for parole, and the matter is before us on his petition for a writ of habeas corpus. We agree with Willard that the Board's decision is not supported by "some evidence" and, for this reason, grant the petition.¹

FACTS

A. The Commitment Offense

Willard (a Canadian citizen) met the victim, Johns de Koninagans (a Dutch citizen), on a 1979 bus trip from Niagara Falls to California. In California, the men went drinking in a bar in Venice. When the victim attempted to "`rip off Willard,'" Willard responded by stabbing the victim several times and cutting his throat, then robbed him. The victim's body was found under a pier in Venice, and Willard was arrested after an informant (to whom Willard had already confessed) obtained a taped confession from Willard.

During a 2006 psychological examination, Willard explained his actions this way: "It was a point in my life [when] I had just separated from my wife. I was feeling bad. I was doing a lot of drinking at the time. At the time of this crime I was really drunk. I remember I was in a bar drinking with the victim. An argument broke out and we started fighting. I ended up killing him. We left the bar. The fight continued in the parking lot. I remember very little. I know I had a knife and I ended up stabbing him. If I hadn't been drinking this would not have happened. I remember feeling better when I drank. The separation with my wife caused me to feel really bad. I always thought there was something missing in my life. Low self-esteem, low ego and drinking seemed to take that all away. I thought of drinking as a way of life . . . . I certainly had made a bad choice when I drank. This is a very bad decision. We were married approximately six years. I was drinking throughout the marriage. I tried to stop drinking a couple of times but couldn't stop. I was definitely an alcoholic at that time. I didn't put my priorities in order."

B. The Evidence Before the Board

1.

Willard has no juvenile record but did suffer some misdemeanor convictions in Canada (where he lived until he came to California in 1979), all of which resulted in grants of probation — a commercial breaking and entering conviction in 1973, a theft conviction in 1975, marijuana possession and drunk driving in 1976, and two arrests for failing to appear under the terms of his probation.

2.

A psychiatric evaluation prepared by Bob Ohrling, Ph.D., in 2006 reports that Willard, then 53 years old, has two adult children with whom he has maintained a close relationship, and that he also has a close relationship with his sister. According to Dr. Ohrling, Willard has maintained a long term presence in Alcoholics Anonymous, and his overall "adaptation to prison life has been positive and constructive after 1989." Willard acknowledged that he committed the offense, and "fully acknowledged the wrongfulness of his actions." He "appears to take full responsibility for the offense and does not appear to rationalize or minimize his role." He expresses remorse and "appears to feel guilty for his actions and can empathize at an emotional level with the harm done to the victim and the victim's family."

Willard "demonstrated a good awareness of the circumstances that resulted in his committing a serious offense [and] appears highly motivated to undertake constructive changes in his life." Dr. Ohrling explained that Willard's problems with alcohol continued for a few years after his incarceration: "Even after the crime and several years in CDC he still was not facing reality and the consequences of his actions. In 1989[,] life changed for this inmate when he finally began to realize if he was ever to have a life outside of prison, things would have to be different. . . . [A]lcohol was a large contributor in his dysfunctional life style, even in CDC. [¶] Mr. Willard was of the belief throughout much of the 1980's that once an individual served his time in a non-violent manner, he would be released. When he saw himself and other inmates and other lifers continue to remain in custody, he began to realize many other factors were also contingent upon suitability. Mr. Willard commented that he needed to acquire additional skills to function in society as well as insight into his violent crime and methods that would lead to this improvement.

"During the last nine years [Willard] has changed directions and [began] to take responsibility in acquiring the tools necessary to gain knowledge from new vocations and taking self help courses to understand healthy choices for dealing with anger, hurt and frustration which can occur on a daily basis. . . . [¶] [During] Mr. Willard's last eleven years in CDC there [have] been no disciplinary infractions for substance abuse. (The last 115 was . . . 5/14/89 and he has had no write-ups for new disciplinary behavior since 9/1/95.)"

Dr. Ohrling concluded thus: "Mr. Willard has been able to understand the causes and contributory behaviors that lead up to the crime, as well as take responsibility for those behaviors that culminated in the tragic death of an individual. He has appeared to be a slow learner, in spite of his recent accomplishments. Taking into consideration his maturity, the absence of psychopathology, his constant positive attitude in programming while in CDC, insight into past actions and behaviors and remorse for those actions all point to a low risk of violence when released to society."

3.

In prison, Willard was an active member of Alcoholics Anonymous until July 2005 when he was placed on a waiting list "due to lack of available classroom space." He completed an Anger Management Class, an Alternative to Violence Project, and a "Breaking Barriers" workshop. At the time of his 2006 parole hearing, he was enrolled in a life skills extension course ("Way to Happiness") and had completed 17 lessons out of 20.

He completed programs in Vocational Data Processing, Welding, Graphic Arts, and nine out of twelve units in computer refurbishing (the program was shut down before he could complete it). He regularly received praise for his work at various jobs (food handling, computer programming, inventory control, welding) within the prison system (through "dedication and hard work Inmate Willard was promoted to the highest paid position possible" within the Prison Industry Authority, and he was described by one supervisor as "by far the best worker I have ever had," and thus deemed a "Critical Worker" to be retained at the facility for "institutional convenience").

With one minor exception, Willard has been discipline-free since 1989 (the exception occurred in 1995 for getting a drink of water during a lockdown, which he thought was over when he got up). Before 1989, Willard received fifteen 115's and six 128's.²

4.

Because Willard is subject to an INS hold to be deported to Canada when he is released, he has two parole plans, one for Canada and one for California if he is required to remain here as a condition of his parole.

If he is able to return to Canada, he will live with his sister, Beverly Willard (a nurse), in Ontario. This is his preferred plan because he would be close to his sister and his adult children. The John Howard Society in Canada will provide employment assistance, and Willard has received assurances from the Canadian Consulate that "[t]he social services of Canada will help you with a roof over your head until you can afford your own. Canada provides a lot of assistance to ex-prisoners. You are not on your own. The parole board should be aware of this." In Canada, Willard has job prospects as a welder with the International Ironworkers Local 433, and he has a list of AA groups that will provide support when he has a firm parole date.

If he has to remain in California, Friends Outside and the Union Rescue Mission have both agreed to help him, and the Union Rescue Mission has confirmed that he can live at its facility while he looks for work or, alternatively, works in one of their programs. He has job offers from computer programmers.

C. The Board's Decision

The Board denied parole for the following reasons:

"The Panel has reviewed all information received from the public and relied on the following circumstances in concluding that the prisoner is not suitable for parole and would pose an unreasonable risk of danger to public safety if released from prison. We've come to this conclusion first by the commitment offense itself. The offense was carried out in an especially callous manner. The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering and the motive for the crime was inexplicable in relation to the offense. These conclusions are drawn from the Statement of Facts, wherein the prisoner, for reasons still best known to himself, killed the victim in a most brutal manner. There is no indication that the victim was armed or presented any threat to Mr. Willard. Mr. Willard's actions...