Petitioner James Hunter seeks habeas corpus relief from the denial of parole by respondent Board of Parole Hearings (the Board). After carefully considering the restatement of the governing principles of review in In re Shaputis (2011)
Factual and Procedural Background
In 1985, Hunter pled guilty to the first degree murder of Tanya Hamlin and to the concurrent second degree murder of her fetus. He was sentenced to a term of 25 years to life, plus one year for a weapons enhancement and a five-year term for robbery. He entered prison on September 24, 1985, and became eligible for parole on August 18, 2004. On September 10, 2009, the Board denied him parole and set his next parole hearing in seven years.
The circumstances of Hunter’s life crime are these. On the evening of October 26, 27, 1984, Hunter was snorting and freebasing cocaine with friends. He left the group to buy more cocaine from James Hamlin. Hunter did not find Hamlin, but did find Hamlin’s sister, Tanya, at her house. Tanya answered the door in a gown and invited Hunter in. She had not seen her brother all day and was not certain when he would return. Tanya’s five-year-old son was asleep on the couch in the living room, so Hunter and Tanya talked in her bedroom. The two had grown up together, had a past romantic relationship and, although Hunter knew that Tanya then had another boyfriend, he stated they “still had feelings for one another.”
After approximately half an hour of conversation, Tanya and Hunter had sex. Afterwards, Tanya gave Hunter $10 and he left to purchase some fast food. Hunter knew that Tanya’s brother stored his cocaine at her house and, according to Hunter, when he returned he formed a plan to get the drugs. He retrieved a six-inch knife from his car and, he has consistently maintained, brought it into the apartment for the purpose of scaring Tanya into giving him the drugs if she would not sell them to him.
When Hunter demanded the drugs, Tanya refused, claiming she could not “go in his stuff’ and not to know where they were anyway. After unsuccessfully attempting to cajole her, he became angry and pushed her onto the bed. According to the account Hunter gave to the Board’s psychologist: “As I was leaving, she came up and slapped me across my face and called me a punk or
In response to questions from the Board, Hunter stated that Tanya died from “stab wounds” on her left side, possibly from a kidney injury. When the deputy commissioner sought to confirm that Hunter had stabbed her on the left side, he replied: “Yeah, the left side. That was definitely the puncture wound. And I hit her in her chest, made a big scratch.” When asked how many times he stabbed her, he replied: “I would say, I know in her chest. I’m not for sure if I hit her twice in her chest, but I know I hit her definitely once on her side that I remember.” When asked if he verified that she was dead, he said, “I was just swinging. I don’t think I thought that through at the time, to make sure she was dead. But it was all a part of the, in the midst of the struggle.” When later asked whether he might have inflicted as many as seven stab wounds, Hunter replied: “It could be. I just know of two or three major punctures that I did. I don’t know if the rest was scratches or actual stab wounds. I mean, you know, puncture or cuts. I’m not for sure. Is stab wounds considered cuts too? Is it all the same? Then it may be so.” Hunter was uncertain whether Tanya’s body had any marks from being beaten, but he agreed there was a “great possibility” it did. When asked whether he had strangled her, he replied that he was not sure if that had been a cause of death, but admitted he “definitely choked her.”
The record explores Hunter’s background, including his prior use of drugs, which began at the age of 12 or 13. Initially he smoked marijuana and drank alcohol, but later progressed to smoking cocaine. He denied ever taking drugs intravenously. He considered himself a drug addict. According to his psychological evaluation, Hunter “has learned about addiction and at this time his
Prior to the commitment offense, Hunter had no juvenile or adult convictions, but he had been arrested in 1984 for possession of drugs for sale. While incarcerated he received three serious discipline rules violation reports, none of which involved violence. Two were in 1987 for disobeying orders. The most recent occurred in January 2008, when he was disciplined for refusing to report to work. During the disciplinary proceedings for the latest incident, Hunter maintained that he was absent from work because he was sick, not because he was participating in a work stoppage. At the parole hearing, however, he stated that he did not report to work on the day in question because of threats that had been made and he wanted to avoid any type of violence. When asked whether he would make the same decision in the future, he said that he would avoid violence and not go to work.
While incarcerated Hunter has participated in various self-help programs, including Breaking Barriers, Men’s Violence Prevention, Common Destiny Lifers, and Alcoholics and Narcotics Anonymous. In response to questions at the parole hearing, he demonstrated his familiarity with specific steps in the 12-step program and explained their application to his personal life. For years he has participated in fundraising for Narcotics Anonymous and Common Destiny. Working with the Prisoners Outreach Program, he helped with a project to provide nylon vests to children. He has taken courses in decision-making and problem solving, effective communication, and hazardous materials. Since 1994 he has actively participated in Islamic religious activities.
Hunter has earned a vocational certificate in bookbinding and has worked in the book bindery for 11,750 hours. He has completed the Machine Shop program, with specialties in both lathe and metal fabrication. He is also certified as a customer service specialist through the Electronics Technicians Association. Summarizing his work evaluations, including job assignments in janitorial work, metal fabrication, porter work, and his vocational programs, the Board stated that his supervisors “speak highly” of him.
If granted parole, Hunter plans to live with his brother in Vallejo. At the time of the hearing his brother lived with his wife and three children, ages 15, 13, and 11. If the Board does not approve of this arrangement, he has backup plans to live in San Francisco. He has been accepted in a Goodwill Industries vocational training program and hopes to work in metal fabrication or machine shop work.
The Board denied Hunter parole for seven years. In explaining its decision the Board first noted the heinous and callous commitment offense: the murder of a pregnant woman, the mother of a five year old, for a trivial reason and partying immediately thereafter. The Board noted Hunter’s significant history of drug abuse, beginning at the age of 12 or 13 and continuing through the time he was incarcerated. The Board also based its denial on Hunter’s “past and present mental state.” It believed that in discussing his commitment offense Hunter minimized his conduct and was not credible. The Board noted that in discussing the crime, Hunter had not spontaneously discussed its effect on the fetus or on the five-year-old son of the victim, and thus, in the Board’s view, failed to demonstrate appropriate remorse. The Board also noted Hunter’s recent discipline for failing to report to work, terming it “significant misconduct.” Finally, noting that Hunter murdered a pregnant woman who was also the mother of a five year old, the Board expressed concerns about his parole plans to reside with his brother, who has children in his home.
The Board’s decision denying parole for seven years became final on February 10, 2010. Hunter’s petition for a writ of habeas corpus in superior court was filed on January 11, 2011, and denied on March 15, 2011. The
Discussion
I. The Petition Is Timely.
The Attorney General first argues that the petition is untimely. Capital habeas corpus petitions are untimely if not filed within 180 days of the final date for filing a petitioner’s reply brief in the direct appeal. {In re Sodersten (2007)
We do not agree that the considerations regarding the timeliness of a petition for habeas corpus challenging a criminal conviction apply to a petition challenging a parole denial. As pointed out in In re Burdan (2008)
II. There Is No Evidence Establishing a Rational Nexus Between Hunter’s Life Crime and the Conclusion That He Will Present an Unreasonable Risk of Future Violence if Paroled.
We see no reason to restate the factors that the Board must consider in determining whether an inmate is suitable for parole or the principles that govern judicial review of the Board’s decision. These matters have been stated and restated in numerous opinions of our Supreme Court and Courts of Appeal.
The unusual factual situation with which the court was concerned in Shaputis II has no application in the present case. The issue here is not whether prior evidence of unsuitability trumps current indicators of suitability, but simply whether there is any evidence that provides a rational basis for considering Hunter to pose an unreasonable risk of reoffending if granted parole.
We do not quarrel with the Board’s assessment that Hunter’s commitment offense was egregious and callous. But however horrible the crime, it is an insufficient basis for the denial of parole unless there is an evidence-based, rational nexus between the offense and present behavior. (In re Lawrence, supra, 44 Cal.4th at pp. 1210, 1227; In re Ryner (2011)
The Board’s denial rests primarily upon its conclusion that Hunter lacks remorse and insight, based on its belief that Hunter’s explanation of his crime
In Shaputis II, the Supreme Court confirmed that “[consideration of an inmate’s degree of insight is well within the scope of the parole regulations” (Shaputis II, supra,
Whatever inferences might properly be drawn were there some evidence that Hunter was being untruthful in stating that he returned with the knife only to scare the victim, we have reviewed the entire central file (or C-File) that was available to the Board at the hearing and found no evidence that contradicts Hunter’s version of the crime. His version of events has remained unchanged over numerous retellings. If his version of the crime is “not physically impossible and [does] not strain credulity such that his denial of an intentional killing [is] delusional, dishonest, or irrational,” the Board cannot discredit his account of events. (In re Palermo (2009)
The circumstances here are very different from those in cases upholding the conclusion that an inmate lacks insight based on discrepancies between his account of the crime and the record. In the two Shaputis cases, for example, the Supreme Court upheld the determination of the Governor in the first case, and of the Board in the second, that the petitioner remained a threat to public safety based in part on disbelief of the petitioner’s claim that the victim’s death had been accidental. The conclusion that Shaputis was not credible was based on the inmate’s extensive prior history of spousal abuse (44 Cal.4th at pp. 1246-1247 [
The Board’s view that Hunter formed an intent to murder the victim when he retrieved the knife from his car apparently was based in part on the fact that Hunter pled guilty to first degree murder. When the deputy commissioner confronted Hunter about what he perceived as Hunter’s disingenuous account of the crime, the commissioner commented, “You’ve already copped to murder one.” But at the hearing on Hunter’s change of plea, the prosecutor discussed culpability under the felony-murder doctrine, so that by his plea Hunter apparently acknowledged his guilt under that theory.
Thus, we do not reweigh the significance of evidence considered by the Board, but simply find no evidence in the record that supports the Board’s conclusion. The record contains no evidence that Hunter’s consistent description of his crime is untruthful and his insistence that he did not intend to kill Tanya when he returned to the home with the knife provides no basis for the inference that he lacks remorse or insight. It certainly provides no basis for believing, contrary to all of the positive evidence in the record, that Hunter will pose an unreasonable risk of future harm if granted parole.
Nor is there any other evidence in the record that Hunter lacks genuine remorse for having killed Tanya and the fetus she was carrying. Both before and during the parole hearing Hunter has expressed remorse for his
The Attorney General focuses on the fact that Hunter referred to “tapping” petitioner with the knife. At one point Hunter also described having “scratched” the victim. But Hunter also spoke of inflicting a “puncture wound” and when asked how the victim died, he replied “[b]y stab wounds.” When asked how many times he stabbed her, he replied, “I would say, I know in her chest. I’m not for sure if I hit her twice in her chest, but I know I hit her definitely once on her side that I remember.” The district attorney asked whether he might have stabbed her as many as seven times and he readily acknowledged that possibility. In context, Hunter’s references to “tapping” and “scratching” the victim cannot be understood as attempts to minimize his responsibility.
The Board also referred to Hunter’s failure to spontaneously include in his narration of events mention of Tanya’s five-year-old son or the fetus. But the Board asked him if the victim had been pregnant, and Hunter replied that she had been. The Board then asked why he had not mentioned that fact and Hunter replied that he had not yet had a chance, but that he was going to get to that. He went on to state that his addiction was so compelling that he had “no regard[] for her life or her unborn child.” When asked to name the victims of the crime, he included Tanya’s parents and extended family, but did not mention her five-year-old son. But once the Board asked about the son and the fetus, Hunter immediately agreed that they too were victims. He apologized for not bringing up the five year old and indicated that he could only imagine how the child experienced the crime. Later in the hearing he twice mentioned the unborn child as a victim. At no point during the hearing did he say anything to minimize the impact of his conduct on the fetus or on
“Evidence of lack of insight is indicative of a current dangerousness only if it shows a material deficiency in an inmate’s understanding and acceptance of responsibility for the crime. To put it another way, the finding that an inmate lacks insight must be based on a factually identifiable deficiency in perception and understanding, a deficiency that involves an aspect of the criminal conduct or its causes that are significant, and the deficiency by itself or together with the commitment offense has some rational tendency to show that the inmate currently poses an unreasonable risk of danger.” (In re Ryner, supra, 196 Cal.App.4th at pp. 548-549, fn. omitted.) Here, Hunter’s passing failure to refer to the fetus or five-year-old son demonstrates no deficit in perception or understanding; nor does it rationally demonstrate current dangerousness.
Furthermore, the omissions are not evidence that Hunter’s parole plans to live with a relative who has children are inappropriate, as the Board suggested. In light of Hunter’s abstention from alcohol and drug use for the last quarter-century, his participation in and commitment to substance abuse programs, and his generally positive record in the intervening years, the fact that in 1984, while under the influence of drugs, he killed the fetus in the course of killing the mother, and created a traumatic and tragic situation for Tanya’s young son, says nothing about the risk he would pose if he were now to live in a house with children. (Cf. In re Jackson, supra, 193 Cal.App.4th at pp. 1380, 1386 [fact that defendant was convicted of murdering his former girlfriend did not make his parole plans, which included plan to live with family or friends, unrealistic]; In re Dannenberg (2009)
Finally, in the course of explaining over some 10 pages the Board’s reasons for finding Hunter unsuitable for parole, the presiding commissioner made brief reference to the fact that in January 2008 Hunter had been
Hunter failed to report to work on one occasion.
Thus, Hunter’s failure to have reported to work on this single occasion does not indicate that he is likely to pose a danger if paroled. There simply is no nexus between this particular disciplinary incident and the likelihood that Hunter will engage in future violence if released from prison. The incident provides no basis for upholding the finding of unsuitability. {Shaputis II, supra,
As summarized in In re Lawrence, supra,
The Board has not articulated a rational basis supported by “some evidence” to support its conclusion that Hunter will pose an unreasonable risk to public safety if paroled. There is no evidence that his mental state (including his remorse, acceptance of responsibility, or insight) indicates current dangerousness. There is no evidence that his narrative of the life crime is inaccurate or minimizes the significance, impact, or wrongfulness of his prior actions. Nothing in the record links his life crime, committed in 1984, with an assessment that he will pose an unreasonable danger if now granted parole. Nor has the Board articulated or do we see a rational nexus between the 2008 disciplinary event and a risk of future violence. In short, the record fails to provide any rational basis for finding Hunter unsuitable for parole.
The matter is remanded to the Board to promptly conduct a subsequent parole hearing in light of this opinion.
McGuiness, P. J., and Jenkins, J., concurred.
Notes
The petition alleges (1) the Board failed to cite evidence to support its conclusion of dangerousness; (2) the Board failed to demonstrate a nexus between the life crime and current risk of dangerousness; and (3) the application to Hunter of Proposition 9, as codified at Penal Code section 3041.5, subdivision (b)(3), violates federal and state ex post facto protections.
It is possible in unusual circumstances for the passage of time, in combination with other events, to result in the petitioner forfeiting the habeas corpus remedy in a parole denial case. For example, if key records are lost during the elapsed time, writ review may become
E.g., In re Lawrence (2008)
The majority opinion in Shaputis II summarized the relevant considerations in the judicial review of a parole suitability determination as follows: “1. The essential question in deciding whether to grant parole is whether the inmate currently poses a threat to public safety, [f] 2. That question is posed first to the Board and then to the Governor, who draw their answers from the entire record, including the facts of the offense, the inmate’s progress during incarceration, and the insight he or she has achieved into past behavior. [][] 3. The inmate has a right to decline to participate in psychological evaluation and in the hearing itself. That decision may not be held against the inmate. Equally, however, it may not limit the Board or the Governor in their evaluation of all the evidence. [][] 4. Judicial review is conducted under the highly deferential ‘some evidence’ standard. The executive decision of the Board or the Governor is upheld unless it is arbitrary or procedurally flawed. The court reviews the entire record to determine whether a modicum of evidence supports the parole suitability decision, [f] 5. The reviewing court does not ask whether the inmate is currently dangerous. That question is reserved for the executive branch. Rather, the court considers whether there is a
The manifestation of “[s]igns of [r]emorse” is a factor tending to show suitability for parole. (Cal. Code Regs., tit. 15, § 2402, subd. (d)(3).)
Indeed, Hunter prefaced his account to the Board by stating that he was “giving more of an overview of it” and concluded by inviting questions, stating, “Anything else that I can elaborate on as far as that I maybe left out, because I basically gave an overview of it.” Hunter’s initial account of the murder mentioned the presence of the sleeping child in the next room, and he incorporated the unborn child in his list of victims after the Board pointed out the omission.
In 1987 Hunter was disciplined twice for disobeying orders. Since then—for 21 years as a commissioner observed—Hunter had been discipline free prior to the one incident in January 2008.
Because of the conclusion we have reached, we need not consider Hunter’s additional contention that the denial of a further hearing for seven years violates the ex post facto clauses of the state and federal Constitutions.