Danny Hare, sentenced in 1985 to an indeterminate term of 15 years to life in state prison for second degree murder, became eligible for parole in August 1992. The Board of Parole Hearings (Board) granted Hare parole in January 2009. However, the Governor, exercising his authority under article V, section 8, subdivision (b), of the California Constitution and Penal Code section 3041.2, reversed the Board’s decision. In December 2009 the superior court granted Hare’s petition for a writ of habeas corpus, finding the Governor’s reversal was untimely and not supported by “some evidence” that Hare currently posed an unreasonable risk of danger to society if released. The warden of the California State Prison, Solano, where Hare is incarcerated, appeals. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Commitment Offense; Hare’s Fugitive Status and Plea After Arrest; Imposition of Sentence
On August 15, 1980 Hare, then a 27-year-old drug abuser, 1 shot his drug supplier, Oscar Ramos, while purchasing cocaine. At his 2008 parole suitability hearing Hare explained his “motives were . . . greed for the cocaine and money, clouded by a terrible drug habit and [I was also] full of anger and rage at the same time and misplaced projection of blame of . . . my addiction upon Oscar.” According to Hare, his anger was due, in part, to the fact his wife had recently begun marriage dissolution proceedings.
After the murder Hare enlisted his girlfriend and 15-year-old brother, who were living at the house where Hare had shot Ramos, to help him clean up the crime scene, telling them a third party had killed Ramos. Hare and his brother buried Ramos’s body in the desert.
Hare was arrested in November 1980. After he was released on bail, Hare married his girlfriend and fled the state. Hare and his new wife ultimately moved to Washington, where he lived under a false identity until November 1983 when his wife, tired of living as a fugitive, notified the authorities.
2. Hare’s Prison Record
a. Disciplinary record
During his incarceration Hare received three serious misconduct violations (reported on CDC form 115 and commonly referred to as a 115). The most recent violation occurred in October 2002 when correctional officers discovered an altered toothbrush in Hare’s cell. 2 The rules violation report, which charged Hare with possession of a dangerous weapon, stated, “The toothbrush confiscated was similar and fashioned the same as two (2) other weapons recently found in L-3. ... I examined the toothbrush and observed that the cut behind the bristles appeared to be cut with a handsaw or an electric saw. This conclusion and observation was based on the fact that the cut behind the bristles was very straight and clean. These types of tools are located in the Prison Industries Authority (PIA) where Inmate Hare is currently assigned.”
Hare denied the charge. At a November 17, 2002 disciplinary hearing Hare admitted he possessed the toothbrush but explained, “I did not know that a toothbrush with a slit in it could be considered] a dangerous weapon.” The hearing panel found Hare guilty of the amended (lesser) charge of possession of dangerous contraband.
At his 2007 and 2008 parole suitability hearings Hare explained to the panel he had altered the toothbrush to clean his hairbrush and wire fan. Hare told the panel in 2007 he had appealed the 115 “all the way through the whole system and all the way up into the eastern district,” where it was then still pending. He complained it was “hypocritical or marginal at best” that the prisoners’ standard-issue toothbrush had a slit in the handle, “which is already a ready-made weapon stock,” but he could be disciplined for possessing a toothbrush that he contended he had altered for cleaning purposes.
b. Participation in rehabilitation, college courses and other programs and laudatory reports
As both the Board and Governor have acknowledged, Hare has made significant efforts to improve himself while in prison and to enhance his
Hare has also participated in numerous therapeutic and other self-help programs, including stress management, emotional awareness and healing, parolee recidivism prevention and creative conflict resolution. Hare has been sober since November of 1980, about the time he was first arrested, and has participated in Narcotics Anonymous since 1989.
3. Hare’s 2008 Psychological Evaluation
In July 2008 Dr. Geca submitted a psychological evaluation of Hare to the Board. Dr. Geca found Hare “has a significant history of drugs and alcohol abuse and meets full necessary criteria for the Polysubstance Dependence in a controlled environment (which also in this case suggests a state of remission).” Regarding Hare’s potential dangerousness, Dr. Geca concluded, consistent with prior psychological evaluations, he was “at the low level of recidivism” for future violence if released.
4. Hare’s Parole Plans
In November 2007 Hare was accepted into a 12-month residential treatment program with the Union Rescue Mission in Los Angeles upon his release from prison. The program, at no cost to Hare, will provide him with food, clothing and housing. Hare will also be offered educational programs and counseling services, including anger management, spiritual and emotional development, vocational education and work therapy, physical education, substance abuse recovery, random drug testing and religious worship. After graduating from the yearlong program, Hare may become an apprentice with the mission, earning a stipend, or enter the transitional program, allowing him to continue living rent free while seeking work.
5. The Board’s Determination Hare Is Suitable for Parole; the Letter to Hare Informing Him the Board’s Decision Became Final on January 20, 2009
After a number of adverse decisions, including in 2005 and 2007, on September 8, 2008 a Board panel for the first time found Hare suitable for parole. The panel concluded Hare would not pose an unreasonable risk of
In a letter dated February 2, 2009 Linn Austen, chief of the Board’s “Decision Processing and Scheduling Unit,” informed Hare, “Decision Review is completed and the final decision date of your hearing is January 20, 2009. ... [1] Therefore, the decision finding you suitable for parole may be subject to review by the Governor, [f] Attached is the last ‘Decision Page’ with the stamped file date and a front cover sheet to your transcript.” Consistent with the letter, the date stamped on the transcript after the typed phrase “THIS DECISION WILL BE FINAL ON:_” was January 20, 2009.
6. The Governor’s Reversal
On February 20, 2009 the Governor reversed the Board’s decision, concluding, notwithstanding the positive factors considered, 3 Hare “still poses a risk of recidivism and violence, and that his release from prison at this time would pose an unreasonable risk to public safety.” After describing the murder as especially atrocious because Hare’s motive was trivial in relation to the magnitude of the crime, the Governor explained the steps Hare took to cover up the crime and the fact he fled the state while released on bail and lived under a false identity in Washington for three years “indicate[] to me that Mr. Hare is a person who tries to avoid responsibility for his crime and takes elaborate steps to hide the truth.”
The Governor found Hare’s “inclination to hide the truth and avoid responsibility” surfaced again when Hare was disciplined for possession of
Finally, the Governor was concerned Hare’s parole plan did not include an offer of employment even though the panel had urged him at the 2007 parole hearing to develop an employment plan. Although the Governor acknowledged Hare had obtained vocational skills in prison that would assist him in finding a job, the Governor believed, “having a stable means to support himself immediately upon release from prison will be essential to his success on parole.”
7. The Petition for Writ of Habeas Corpus
In August 2009 Hare petitioned for writ of habeas corpus, contending the Governor’s reversal was untimely because it had been made one day after the 30-day period for the Governor’s review had passed and, even if timely, was not supported by any evidence he continued to pose an unreasonable risk to public safety. In his return to the superior court’s order to show cause, the warden argued the reversal was timely because the Board’s decision was not final until January 21, 2009—120 days after the date of the hearing pursuant to Penal Code sections 3041, subdivision (b), and 3041.2, not January 20, 2009 as Hare had been informed—and the Governor’s reversal was made within 30 days of January 21, 2009. Although the warden’s argument as to timeliness appeared to be based solely on his interpretation of the relevant statutes and regulations, the warden provided the court with a copy of the transcript from the 2008 parole consideration hearing that differs from Hare’s in one significant respect: The final page of the decision states, “THIS DECISION WILL BE FINAL ON: January 21, 2009.” The warden, however, did not provide the superior court with a citation to this page of the exhibit or refer to it in his return or supporting memorandum.
On December 24, 2009 the superior court granted Hare’s petition, finding the Governor’s reversal was untimely and thus a “legal nullity because the
The court also found the Governor’s decision was not supported by “some evidence” Hare continued to pose an unreasonable risk to public safety notwithstanding the heinousness of the commitment offense, as required by
In re Lawrence
(2008)
With respect to Hare’s lack of a specific employment offer, the court found it did “not support a finding that he remains a current threat to public safety.” The court explained, “The law requires that a prisoner have made realistic plans for release or has developed marketable skills that can be put to use. [Citation.] The Governor does not dispute that [Hare] has realistic housing plans and there is ample evidence in the record which was considered by the Board to support a finding that he has marketable skills. [Hare] has obtained five vocational certifications, including one in optical lens making as recently as 2006, and has researched numerous private employers who hire ex-inmates in the lens-making field. Even if he does not have a firm job offer, [Hare] does have both a housing plan and marketable skills as required by the regulations.”
8. The Superior Court’s Denial of the Warden’s Motion for Reconsideration
The warden moved for reconsideration on grounds including that new information established the Governor’s reversal was timely. The warden argued, and submitted to the court, a memorandum to the Governor’s office by the Board
DISCUSSION
1. Governing Law
As the California Supreme Court and Courts of Appeal have repeatedly stated in decisions reviewing denials of parole by the Board or the Governor, the purpose of parole is to help prisoners “reintegrate into society as constructive individuals as soon as they are able,” without being confined for the full term of their sentences.
(Morrissey
v.
Brewer
(1972)
Notwithstanding the breadth of that discretion, however, Penal Code section 3041,
5
which governs the substance and procedure for the Board’s parole release decisions, creates a cognizable liberty interest in parole protected by the due process clause of the California Constitution. (Cal. Const., art. I, § 7, subd. (a);
Lawrence, supra,
As an inmate’s minimum eligible parole release date approaches, Penal Code section 3041, subdivision (b), requires the Board to set a release date “unless it determines . . . that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed.” In making its decision the Board must
In exercising its discretion, the Board “must consider all relevant statutory factors, including those that relate to postconviction conduct and rehabilitation.”
(Lawrence, supra,
The Board can, of course, rely on the aggravated circumstances of the commitment offense as a reason for finding an inmate unsuitable for parole; however, “the aggravated nature of the crime does not in and of itself provide some evidence of
current
dangerousness to the public unless the record also establishes that something in the prisoner’s pre- or postincarceration history, or his . . . current demeanor and mental state, indicates that the implications regarding the prisoner’s dangerousness that derive from his . . . commission of the commitment offense remain probative of the statutory determination of a continuing threat to public safety.”
(Lawrence, supra,
Once the Board sets a parole date, the California Constitution empowers the Governor to review the parole decision of an inmate who has been convicted of murder and sentenced to an indeterminate prison term. (Cal. Const., art. V, § 8, subd. (b).)
7
The Governor’s decision to affirm,
2. Standard of review
“[W]hen a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the
decision
of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings.”
(Lawrence, supra,
We review de novo an appeal from the superior court’s decision to grant the petition for writ of habeas corpus that, as here, was based solely on documentary evidence.
(Rosenkrantz, supra,
3. The Governor’s Reversal of the Board’s Decision Was Timely
A decision by a Board panel finding an inmate suitable for parole becomes final “within 120 days of the date of the hearing.” (Pen. Code, § 3041, subd. (b); see also Cal. Code Regs., tit. 15, §§ 2041, subd. (h) [“[a]ny proposed decision of the panel shall become final within 120 days of the hearing”], 2043 [“[a]ny proposed decision granting, modifying, or denying a parole date for a life prisoner, exclusive of those made during Progress Hearings, shall become final no later than 120 days after the hearing at which the proposed decision was made”].) During the 120-day period, the Board may review the panel’s decision. (Pen. Code, § 3041, subd. (b).)
10
Once final, the Governor has 30 days to review a decision granting parole to an inmate serving an indeterminate life sentence for murder. (Cal. Const., art. V, § 8, subd. (b); Pen. Code, § 3041.2, subd. (a); see
In re Arafiles
(1992)
In the case at bar there is a dispute as to the final, or effective, date of the Board’s decision. Hare contends the effective date was January 20, 2009, 119 days after the panel’s parole suitability hearing, as evidenced by the letter to him from Linn Austen and the date stamped on the last page of the panel decision accompanying the letter. The Governor contends the information provided to Hare was a clerical error and the effective date was January 21, 2009, 120 days after the hearing, as reflected on the warden’s copy of the decision and further supported by the memorandum from the Board to the Governor stating the Governor’s review deadline was February 20, 2009.*
11
However, before the superior court the warden presented only a legal
We need not address whether the superior court correctly rejected the warden’s statutory argument because the conflict in the evidence regarding the effective date of the Board decision, if properly presented to the superior court, should have been resolved in favor of the warden. There is a presumption that official duties have been regularly performed. (Evid. Code, § 664 [“[i]t is presumed that official duty has been regularly performed”].) That presumption may be rebutted when “irregularity is clearly shown.”
(In re Elsholz
(1964)
The superior court did not dispute, and we agree, at least some evidence supports the Governor’s determination the murder of Oscar Ramos during the course of a drug transaction was especially atrocious because the motive for the crime—greed for a relatively small sum of money (approximately $4,400) and drugs—was trivial in comparison to its magnitude. Accordingly, the limited question before us is whether the Governor reasonably interpreted Hare’s possession of an altered toothbrush, his differing explanations for it and his lack of a job offer upon release as evidence that, together with the gravity of the commitment offense, is probative of his current dangerousness. (See
Lawrence, supra,
Bearing in mind the extremely limited and deferential standard of judicial review in parole cases, we conclude some evidence in the record supports the Governor’s decision that Hare remains dangerous. To be sure, the Governor’s explanation Hare’s likelihood of success on parole was jeopardized because he did not have an offer of employment and needed “a stable means to support himself immediately upon release” appears suspect. Hare has been admitted into a yearlong treatment program that will provide him with shelter, food, counseling and educational programs at no cost. The program also provides transitional services after Hare graduates until he is able to support himself. Thus, Hare does not need a job to support himself immediately upon release. 14
Although we reverse the order granting Hare’s petition for a writ of habeas corpus, we agree with the superior court that Hare is a strong candidate for release on parole; and the Board’s decision to release him was certainly reasonable. In fact, were it our responsibility to evaluate the various factors appropriate to a determination whether Hare constitutes a current threat to public safety, we might very well conclude that evidence in the record tending to establish his suitability for parole far outweighs any evidence demonstrating unsuitability for parole. Nonetheless, the Governor did not act arbitrarily or capriciously in reversing the grant of parole in this case: There is at least a modicum of evidence in the record—Hare’s
In sum, the Governor’s decision Hare is unsuitable for parole is supported by some evidence. Accordingly, the superior court erred in granting Hare’s petition for writ of habeas corpus and vacating the Governor’s reversal of the Board’s grant of parole.
DISPOSITION
The superior court’s order vacating the Governor’s reversal of the Board’s decision granting parole, reinstating the Board’s decision and directing Hare’s immediate release is reversed.
Zelon, J., and Jackson, J., concurred.
Petitioner’s petition for review by the Supreme Court was denied February 16, 2011, SI88422.
Notes
Hare began smoking marijuana when he was 19 years old. At 21 he began using barbiturates and later amphetamines, LSD and cocaine. Prior to the commitment offense Hare had been arrested in Missouri for possession of amphetamines, for which he received a three-year suspended sentence, and cited for possession of marijuana (Health & Saf. Code, § 11357, subd. (b)), for which he paid a fine. At the time of the commitment offense Hare was addicted to cocaine, but had stopped using other drugs.
In 1987 Hare received two 115’s for damaging or destroying state property: the first in August for using a sheet to block his window; the second in September for altering two pairs of state-issued shorts.
The positive factors considered by the Governor, who acknowledged Hare had “enhanced his ability to function within the law upon release,” included Hare’s educational and vocational accomplishments, his participation in numerous self-help and therapy programs and his “seemingly solid relationships and close ties with a supportive family and friends during his incarceration.”
The Governor mistakenly characterized the 115 as “possession of an inmate-manufactured weapon,” not the reduced charge of “possession of dangerous contraband” that was ultimately sustained.
Penal Code section 3041, subdivision (a), provides, “One year prior to the inmate’s minimum eligible parole release date a panel of two or more commissioners or deputy commissioners shall again meet with the inmate and shall normally set a parole release date as provided in Section 3041.5. . . . The release date shall be set in a manner that will provide uniform terms for offenses of similar gravity and magnitude with respect to their threat to the public, and that will comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of parole release dates. The board shall establish criteria for the setting of parole release dates and in doing so shall consider the number of victims of the crime for which the inmate was sentenced and other factors in mitigation or aggravation of the crime.”
The regulation specifies the factors to be considered in determining whether the offense was committed in an especially heinous, atrocious or cmel manner as: “(A) Multiple victims were attacked, injured or killed in the same or separate incidents, [ft] (B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder, [ft] (C) The victim was abused, defiled or mutilated during or after the offense, [ft] (D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering, [ft] (E) The motive for the crime is inexplicable or very trivial in relation to the offense.” (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1).)
Article V, section 8, subdivision (b), of the California Constitution provides, “No decision of the parole authority of this State with respect to the granting, denial, revocation, or
Penal Code section 3041.2 provides, “(a) During the 30 days following the granting, denial, revocation, or suspension by a parole authority of the parole of a person sentenced to an indeterminate prison term based upon a conviction of murder, the Governor, when reviewing the authority’s decision pursuant to subdivision (b) of Section 8 of Article V of the Constitution, shall review materials provided by the parole authority. [][] (b) If the Governor decides to reverse or modify a parole decision of a parole authority pursuant to subdivision (b) of Section 8 of Article V of the Constitution, he or she shall send a written statement to the inmate specifying the reasons for his or her decision.”
As the warden argues in his reply brief and contrary to a suggestion advanced at oral argument, in reviewing the Governor’s decision under
Lawrence,
we properly look not only to those factors specifically identified as the basis for the Governor’s decision but also to factors “not expressly advanced” as grounds for the unsuitability finding where “there is an implication in the Governor’s statement . . .” that the factors supported the unsuitability finding.
(Lawrence, supra,
No separate or different finality date has been created for a Board decision modifying the panel’s decision.
As discussed, the superior court was not directly presented with this conflict before making its decision. Although the court was provided with the warden’s copy of the transcript
The warden did refer to the conflicting evidence, and particularly the memorandum to the Governor, in his motion for reconsideration. The superior court could have reasonably concluded the memorandum simply reflected the warden’s position the Board’s decision would not be final until 120 days after the panel hearing regardless whether it had stated an earlier effective date.
Even if the Governor had missed the deadline by one day because of confusion as to the date on which the 30-day period expired, it would not necessarily deprive the Governor of jurisdiction to review the parole decision. Not all statutory time limits are mandatory and jurisdictional. (See
California Correctional Peace Officers Assn. v. State Personnel Bd.
(1995)
In re Cerny
(2009)