Legal Developments: 2008 – present

Lawrence and Shaputis are significant — not only because of what they said about how the parole consideration process should work, but also because they came from the California Supreme Court. All California courts of appeal and all county superior courts (where these petitions start) must follow Lawrence and Shaputis. Below are examples of how lower courts (and even the federal Ninth Circuit Court of Appeals) are applying those cases.

On December 10, 2008, four months after Lawrence and Shaputis, the Third District Court of Appeal (in Sacramento) decided In re Singler (2008) 169 Cal. App. 4th 1227. That court rejected the Board’s claim that Mr. Singler lacked “insight” into the crime because he couldn’t explain exactly why he had killed his wife and what would stop him from acting violently in the future. The court found that Mr. Singler completely understood his crime, and that he had taken steps to change his behavior and improve himself. The court ordered the Board to release Mr. Singler unless new evidence of change in his conduct or mental state after the 2006 parole hearing showed that he was dangerous.

The day after Singler, the Second District Court of Appeal (in Los Angeles) decided In re Aguilar (2008) 168 Cal. App. 4th 1479. There, the Governor based his reversal decision almost entirely on the crime, but also cited Mr. Aguilar’s criminal history (from 50 years earlier), his two nonviolent 115s and the district attorney’s opposition to release. The Court observed that the Penal Code (Section 5011) prohibits the Board or Governor from requiring a lifer to admit guilt in order to be paroled. The court granted Mr. Aguilar’s writ and ordered him released.

In early January 2009, the Second District Court of Appeal (in Los Angeles) decided In re Gaul (2009) 170 Cal. App. 4th 20. The court rejected the Governor’s reliance on Mr. Gaul’s crime, his history before the crime, and a 10-year-old negative psychological evaluation — because all that evidence was old. In fact, the Governor relied on the old psychological evaluation even despite two more recent, more positive evaluations. With no evidence to establish that Mr. Gaul posed an unreasonable risk of danger, the court granted Gaul’s writ of habeas corpus and ordered his release.

On January 21, 2009, the Fourth District Court of Appeal (in San Diego) decided In re Vasquez (2009) 170 Cal. App. 4th 370. The Governor had claimed that, because Mr. Vasquez said he had acted in self defense, Mr. Vasquez had failed to take responsibility for the crime. The Governor also argued Mr. Vasquez was unsuitable for parole because he lacked remorse. The court found that Mr. Vasquez never relied on self-defense to justify his actions and that all psychological evaluations showed him to be remorseful. Mr. Vasquez’s writ was granted because the court was unable to find “some evidence” that he posed an unreasonable threat to society.

On February 11, 2009, the Third District Court of Appeal (in Sacramento) decided In re Palermo (2009) 171 Cal. App. 4th 1096. The court found that the Board’s reliance on Mr. Palermo’s disciplinary record (3 nonviolent 115s in the previous 20 years), the seriousness of the crime, and the Board’s claim that he lacked “insight” was not supported by evidence of current dangerousness. The Board had determined that Mr. Palermo “lacked insight” because he insisted that the killing of his girlfriend was the accidental result of playing with his gun, which he believed to be unloaded. Although he took full responsibility for taking her life, he maintained that he had committed manslaughter and not murder. The court emphasized that the Board cannot require a lifer to admit guilt and that Mr. Palermo’s insistence that he is guilty only of manslaughter did not provide “some evidence” of current dangerousness.

On February 26, 2009, the Second District Court of Appeal (in Los Angeles) decided In re Rico (2009) 171 Cal. App. 4th 659. The court went through each factor offered as a reason to deny Mr. Rico parole, and it found that none amounted to “some evidence” of current dangerousness. The court also held that Mr. Rico’s decision not to discuss his crime with the Board could not be used as evidence that he “lacked insight,” because Penal Code Section 5011 and Title 15 of the California Code of Regulations, Section 2236, protect his right not to discuss the crime. 

On March 13, 2009, in In re Lewis (2009) 172 Cal. App. 4th 13, the Sixth District Court of Appeal (in San Jose) considered evidence from the Santa Clara County Superior Court that the Board found the crime “especially heinous” in 100% of cases in which parole was denied. While the superior court had ordered the Board to change its rules and to train its commissioners so that this practice would cease, the Court of Appeal held that the superior court had gone too far. Specifically, there was no proof that the Board’s finding of heinousness was the only reason for denying parole in all of the nearly 3,000 cases reviewed, so the superior court should not have ordered such sweeping changes.

On March 16, 2009, the Fourth District Court of Appeal (in San Diego) decided In re Rozzo (2009) 172 Cal. App. 4th 40. The Court found there was evidence – including Mr. Rozzo‘s use of racial epithets and his stated goal of hunting Blacks – that his torturous murder of a Black victim had been racially motivated. Along with other factors, Mr. Rozzo’s refusal to acknowledge his racial animosity and racist motivations showed a “lack of insight,” and it was enough to justify the Governor’s reversal of his parole grant.

On December 11, 2009, the Second District Court of Appeal (in Los Angeles) decided In re Masoner (2009) 179 Cal. App. 4th 1531. The court held that when a court finds no evidence supporting the Governor’s reversal of a parole grant, the court has authority to reinstate the grant and order a prisoner released without giving the Governor another chance to review the case.

On December 18, 2009, the Sixth District Court of Appeal (in San Jose) decided In re Criscione (2009) 180 Cal. App. 4th 1446. The Court held there was evidence that Mr. Criscione, who had strangled his girlfriend, remained dangerous years later based on the seriousness of his crime, his history of abusing female partners, and the lack of a strong record of rehabilitation addressing this history. The Court upheld the Board’s decision, even though the Board failed at the hearing to tie all these pieces together by explaining the “nexus” (or connection) between Mr. Criscione’s history and his current dangerousness. It was enough, the Court held, that the Board had relied on a recent psychological evaluation that noted his potential for violence in future relationships with women.

On February 4, 2010, the federal district court in Sacramento ordered the Board to stop applying Proposition 9 (Marsy’s Law) to plaintiffs in Gilman v. Davis (Case No. CIV. S-05-830 LKK/GGH). The court held that Marsy’s Law, which drastically increased the period between parole hearings, is probably unconstitutional when applied to prisoners whose crimes were committed before the law passed. The court will conduct further hearings to determine whether it is unconstitutional. If it is, the Board can no longer deny prisoners parole for up to 15 years. Check back here for updates on this.

On March 25, 2010, the Second District Court of Appeal (in Los Angeles) decided In re Loresch (2010) 183 Cal. App. 4th 150. There, the Court rejected the Governor’s decision, which relied on the crime’s seriousness and on speculation that Mr. Loresch could relapse into drug abuse and become violent. After reinstating the Board’s parole grant and ordering Mr. Loresch’s release, the Court further urged the Governor to reconsider his approach to the parole consideration process in order to restore confidence in the Board’s determinations, and to stop second-guessing their findings. This was one of the first cases in which the court took this extra step to speak directly to the Governor.

On April 22, 2010, the Ninth Circuit Court of Appeals decided Hayward v. Marshall (9th Cir.  2010) 603 F.3d 546. In preceding years, dozens (if not hundreds) of cases were held up as the Ninth Circuit considered whether and how federal courts should review parole decisions in California. The case ended badly for Mr. Hayward, who was returned to prison after years on the outside because the Court found some evidence that he remained dangerous. However, the outcome was not significant for most lifers pursuing challenges in federal court after losing in state court. Hayward simply said that, like state courts, federal courts must consider whether the Board or Governor followed Lawrence by denying parole only where current evidence showed that a prisoner would endanger public safety. The Hayward Court also said that lifers whose petitions are denied in the federal district court have to obtain a “certificate of appealability” in order to pursue their cases into the Ninth Circuit Court of Appeals. Perhaps the worst part of the case is that the Ninth Circuit said that a “low to moderate” risk finding (as opposed to “no risk” or simply a “low risk”) in a psychological evaluation could support denial of parole in some cases. This may cause problems for lifers until the state courts address this issue directly.

On May 12, 2010, the First District Court of Appeal (in San Francisco) decided In re Calderon (2010) 184 Cal. App. 4th 670. That court picked up where Loresch left off, observing that the Governor’s decisions are clearly made not by the Governor, but by his legal staff. The Court urged these people to understand the “magnitude of the problem” of their refusal to follow the law, which forces courts to step in.

On May 24, 2010, in Pearson v. Muntz (9th Cir. 2010) 606 F. 3d 606, the Ninth Circuit Court of Appeals headed off the California Attorney General’s attempts to argue that, after Hayward, California lifers have no right to parole. In strong language, the Court addressed the Attorney General’s “fundamental misunderstandings of Hayward,” it and clarified that lifers can pursue their challenges in federal court. Further, once cases reach federal court, the requirements of Lawrence (that parole decisions be based on current evidence of danger) must apply.

On June 8, 2010, the First District Court of Appeal (in San Francisco) decided In re Shippman, 2010 WL 2282569 (Case No. A125182). The Court held there was evidence that the 70 year-old prisoner, who had killed his wife seventeen years earlier, remained dangerous because “he lacked insight into his irrational need to control the love and affection of others, and his parole plans were marginal.”

On June 11, 2010, the Third District Court of Appeal (in Sacramento) decided In re Ross, 2010 WL 2338031 (Case No. C062466). The Court reviewed the Governor’s decision in a case that had been sent back to him after the lifer’s earlier habeas victory. The Court held that, when the case comes back to the Governor, he can consider new evidence not previously addressed as long as it relates to public safety.