246 Cal. App. 4th 953
Cal. Ct. App.2016Background
- In 1989 Timothy P. Busch was convicted of second-degree murder for injuries inflicted on his girlfriend’s two‑year‑old daughter, Shaena; sentenced to 15 years to life and first became parole‑eligible in 1999.
- Medical evidence at trial showed massive skull fractures, subdural hematoma, brain swelling, fingertip‑type bruises on the jaw, and multiple physicians concluded the injuries were not consistent with a fall from a bed and were likely caused by blunt force or being pushed against a hard surface; the child died two days after admission.
- Prior to the fatal injury, witnesses had observed bruises and a black eye on Shaena; babysitters reported she was fearful of going with Busch.
- Busch maintained his innocence and offered an alternative theory (an earlier fall or injury), supported by a defense expert whose timeframe and volume estimates were undermined at trial; he continued to deny responsibility at his 2014 parole hearing.
- The Board of Parole Hearings granted parole in July 2014 based largely on exemplary institutional conduct; the Governor independently reviewed the record and reversed, finding Busch’s account implausible, noting the horrific nature of the crime and insufficient insight/remorse.
- Busch petitioned for habeas corpus claiming (1) the Governor impermissibly required an admission of guilt in violation of Penal Code § 5011 and (2) the Governor failed to articulate a rational nexus between the commitment offense and current dangerousness; the Court of Appeal denied relief.
Issues
| Issue | Plaintiff's Argument (Busch) | Defendant's Argument (Governor) | Held |
|---|---|---|---|
| Whether Governor’s reversal is supported by "some evidence" of current dangerousness | Governor's decision lacked evidentiary support and improperly reweighed evidence; no rational nexus to present danger | Record contains a modicum of evidence: horrific nature of offense, prior injuries, implausible denial, and psychological concerns indicating lack of insight | Denial of parole supported; "some evidence" standard met and court will not reweigh evidence |
| Whether consideration of Busch’s implausible account violated § 5011 (cannot require admission of guilt) | Governor effectively required admission of guilt in violation of statute | Parole authorities may consider plausibility/credibility of an inmate’s version when it bears on suitability; § 5011 does not bar evaluating lack of insight | No violation: assessing implausibility is permitted when relevant to current dangerousness and insight |
| Whether continued confinement is constitutionally disproportionate (cruel or unusual) | After long incarceration, life term has become grossly disproportionate to Busch’s culpability | The gravity of killing a two‑year‑old with massive head injuries supports continued confinement; parole denial does not make sentence disproportionate | Busch failed to meet burden; sentence not constitutionally disproportionate |
Key Cases Cited
- In re Lawrence, 44 Cal.4th 1181 (explains public safety as fundamental parole consideration and standard for assessing suitability)
- In re Rosenkrantz, 29 Cal.4th 616 (parole decisions are subjective; courts limited to "some evidence" review)
- In re Shaputis, 53 Cal.4th 192 (Shaputis II) (an implausible denial may support finding of current dangerousness)
- In re Shaputis, 44 Cal.4th 1241 (Shaputis I) (limits on court’s role in reweighing parole evidence)
- In re Dannenberg, 34 Cal.4th 1061 (constitutional proportionality review for life prisoners)
- In re Pugh, 205 Cal.App.4th 260 (implausible account can indicate lack of insight supporting unsuitability)
- In re McClendon, 113 Cal.App.4th 315 (credibility/implausibility may support parole denial)
- In re Criscione, 180 Cal.App.4th 1446 (articulation of reasonable nexus between crime and current dangerousness)
- People v. Duvall, 9 Cal.4th 464 (burden on petitioner to show sentence disproportionate)
- People v. Lewis, 120 Cal.App.4th 837 (application of proportionality principles)