Opinion
INTRODUCTION
The Board of Parole Hearings (Board) denied petitioner Kevin Jackson parole on December 3, 2008. Jackson challenged that decision by filing a petition for writ of habeas corpus in the California Supreme Court. In response to the petition, the high court ordered respondent, the Secretary of the Department of Corrections and Rehabilitation, to show cause before this court “why the Board of Parole Hearings’ decision to deny petitioner parole on December 3, 2008 did not violate Penal Code section 5011, subdivision (b), and California Code of Regulations, title 15, section 2236, by relying, either directly or indirectly, on petitioner’s refusal to admit guilt as a
Having reviewed the petition, return and traverse, we hold that (1) the Board erroneously denied Jackson parole because there was no evidence that he constituted a current risk to public safety; and (2) the Board’s decision to deny Jackson parole on December 3, 2008, violated section 5011, subdivision (b), and California Code of Regulations, title 15, section 2236. We thus grant the petition and remand the matter to the Board for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Commitment Offense
In 1983, Jackson was tried for the murder of his former girlfriend Sharon Wade. The prosecution alleged that in the early morning hours of July 5, 1981, Jackson fired two shots at Wade, killing her. Jackson has consistently denied that he shot and killed Wade. He contends that the murder was likely committed by Wilbert, a man Wade was seeing at the time of her murder.
The prosecution’s case was premised primarily on circumstantial evidence. There were numerous witnesses who testified regarding Jackson’s relationship with Wade and his conduct immediately before the murder. The testimony established that Wade was killed shortly after the acrimonious dissolution of a lengthy relationship between Jackson and Wade. Jackson was furious with Wade because she was seeing another man. Just hours before the shooting, in the late evening of July 4, 1981, Jackson was involved in an angry confrontation with Wade. During that confrontation, Jackson threatened to kill Wade and shoved Wade in the face.
The only eyewitness to the actual shooting was Frederick Demus. Demus testified as follows. In the early morning hours of July 5, 1981, he saw from 75 yards away two vehicles parked near each other. From the vehicles he heard a male and a female yelling and screaming. The male stated: “I should have killed you earlier. Call yourself being a player, I’m tired of that shit.” The male then walked to the driver’s side of the female’s vehicle, fired two shots, got back in his vehicle, and drove away.
Because Demus was so far away and it was night time, he could only testify to the profile of the man who fired the shots. He testified that
Additionally, the prosecution’s case consisted of impeaching Jackson’s statements to a police officer shortly after the murder. When asked whether his problems with Wade were “in the past or last night,” Jackson claimed that the problems were “in the past.” Jackson also denied ever threatening to kill Wade but he did admit that he had threatened to kill “a guy named Wilbert if she [Wade] didn’t stop seeing him.” Jackson’s testimony about his problems with Wade being “in the past” and not threatening to kill Wade was contradicted by the testimony of prosecution witnesses.
After a bench trial, Jackson was convicted of second degree murder in violation of section 187. The trial court also found that Jackson used a firearm within the meaning of section 1203.06, subdivision (a) and section 12022.5. Jackson was sentenced to 17 years to life in state prison.
2. The December 3, 2008, Parole Hearing
On December 3, 2008, the Board held the eighth parole hearing for Jackson. At the hearing the Board and Jackson presented evidence regarding Jackson’s preincarceration social, work, and criminal history, Jackson’s conduct in prison, Jackson’s age and physical and mental health, Jackson’s plans if he is released from prison, and other circumstances relevant to Jackson’s suitability or unsuitability for parole. As we shall discuss post, this evidence indicated that Jackson was suitable for parole.
At the beginning of the hearing, Jackson’s counsel stated Jackson did not wish to discuss the crime. The Board, however, reviewed a written psychological evaluation prepared by Dr. Carol Fetterman, dated August 19, 2008, which set forth statements by Jackson regarding his responsibility for Wade’s murder. In essence, Jackson stated to Dr. Fetterman that after he was unfaithful to Wade, Wade sought relationships with other men, including Wilbert. Jackson then became jealous of Wilbert and threatened to kill him. According to Jackson, he was responsible for Wade’s death because he contributed to the circumstances that led to her death.
Later, Presiding Commissioner Sandra Bryson and Jackson had the following dialogue:
Bryson: “. . . I don’t understand why you’ve taken responsibility for her death if you didn’t kill her.”
Jackson: “Because I think I made the situation worse by threatening the other individual, by even bringing it up—bringing up the point that I was willing to kill him, to shoot him. I didn’t know—I didn’t know him really that well. I didn’t know how he would react to something like that, so that was a—”
Bryson: “You’re sitting in here, according to your claim, taking a murder rap for somebody, and you’re not angry about that?”
Jackson: “I was angry about it for a long time. HI] ... fí[] ... I couldn’t just be consumed with bitterness and guilt. That would eat you alive.”
3. Jackson’s Petitions for Writ of Habeas Corpus and the Orders to Show Cause by the California Supreme Court and This Court
Jackson has filed three petitions for writ of habeas corpus challenging the Board’s December 3, 2008, decision to deny him parole. On March 19, 2009, Jackson filed a petition for writ of habeas corpus in the superior court. That petition was denied on May 14, 2009.
On June 30, 2009, Jackson filed a petition for writ of habeas corpus in this court. That petition was denied on July 15, 2009.
On August 21, 2009, Jackson filed a petition for writ of habeas corpus in the California Supreme Court. On October 28, 2010, the high court issued an order requiring respondent to show cause before this court “why the Board of Parole Hearings’ decision to deny petitioner parole on December 3, 2008 did not violate Penal Code section 5011, subdivision (b), and California Code of Regulations, title 15, section 2236, by relying, either directly or indirectly, on petitioner’s refusal to admit guilt as a factor demonstrating unsuitability for parole.”
On November 3, 2010, this court issued an order to respondent to show cause why the relief prayed for in Jackson’s petition for writ of habeas corpus dated June 30, 2009, should not be granted. On January 26, 2011, we issued an order modifying the order of November 3, 2010, nunc pro tunc, to clarify that respondent was required to show cause why the August 21, 2009, petition for writ of habeas corpus filed in the California Supreme Court should not be granted.
The overarching issue raised by Jackson’s petition for writ of habeas corpus is whether the Board erroneously denied Jackson parole on December 3, 2008. In order to adjudicate that issue we must decide whether some evidence supports a determination that Jackson poses a current threat to public safety if he is released on parole. We must also directly address the issue raised by the California Supreme Court, namely whether the Board’s decision to deny Jackson parole violated section 5011, subdivision (b), and California Code of Regulations, title 15, section 2236, by relying, either directly or indirectly, on Jackson’s refusal to admit, guilt as a factor demonstrating unsuitability for parole.
DISCUSSION
1. The Board Erroneously Denied Jackson Parole Because There Was No Evidence That He Constituted a Current Risk to Public Safety
“ ‘Pursuant to statute, the Board “shall normally set a parole release date” one year prior to the inmate’s minimum eligible parole release date, and shall set the date “in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public . . . .” (Pen. Code, § 3041, subd. (a).)’ [Citation.] Release on parole is thus ‘the rule, rather than the exception.’ [Citation.] A parole release date must be set unless the Board determines that public safety requires a lengthier period of incarceration. [Citations.] Every inmate has a constitutionally protected liberty interest in parole decisions ordered by the Board and reviewed by the Governor. [Citation.]” (In re Aguilar (2008)
“In determining suitability for parole, the Board must consider certain factors specified by regulation. Circumstances tending to establish unsuitability for parole are that the inmate (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) has a previous record of violence; (3) has an unstable social history; (4) has sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (Cal. Code Regs., tit. 15, § 2402, subd. (c); [citation].)” (Aguilar, supra, 168 Cal.App.4th at pp. 1486-1487; accord, In re Lawrence (2008)
“Circumstances tending to show suitability for parole include that the inmate (1) does not possess a record of violent crime committed while a
Although the foregoing factors are specified by the governing regulations, they are only general guidelines; the Board must consider all relevant information. (Aguilar, supra,
Here, none of the circumstances tending to show unsuitability for parole are present. Respondent does not allege that Jackson committed the murder of Sharon Wade in an especially heinous, atrocious, or cruel manner. Apart from the commitment offense, Jackson has not been convicted of a violent crime. Indeed, the only other conviction on Jackson’s record is a conviction for possession of a stolen check. He committed that offense when he was 18 years old, and received three years of probation.
There is nothing in the record indicating that Jackson ever sexually assaulted another individual or that Jackson had a history of substance abuse or mental problems. Further, Jackson did not have an unstable social history prior to his incarceration. Jackson lived with his mother and father until he was 16, when his mother died. At that point Jackson took responsibility for many of the tasks previously performed by his mother, including paying the household bills and cooking.
Jackson did not engage in serious misconduct while in prison. He was disciplined by prison authorities several times for nonviolent infractions of prison rules, but he has not been disciplined since 1992.
Many of the circumstances tending to show suitability for parole are present in this case. Jackson had no juvenile criminal record and, as stated, had a relatively stable social history prior to his incarceration. After his incarceration, Jackson married Andrea Valerie and maintained a marital relationship with her for 11 years until prison authorities terminated conjugal visits. Since then Valerie has had relationships with other men. Jackson nevertheless has maintained a friendly relationship with Valerie.
While in prison Jackson has engaged in constructive activity and has improved himself. Jackson earned an associate degree from a community college and was an honor student. Jackson also took anger management and other self-help classes offered by the prison. Jackson received vocational training in optical manufacturing, worked as a metal fabricator, painter, assembler, forklift operator, and porter, and always received good work reports. In addition, in the 4 to 5 years prior to the December 3, 2008, parole hearing, Jackson became involved in Islamic studies. Jackson claims he has become a more spiritual person. The prison chaplain stated in a letter to the Board that Jackson had met the challenges he faced “with dignity and resolve,” and that Jackson had become “more respectful of life and aware of mortality.”
Further, Jackson has shown signs of remorse. He has stated that he thinks of the victim all the time and that he bears responsibility for her death.
At the time of the parole hearing, Jackson was 52 years old. Unfortunately, he was suffering from a number of health problems. Although he had knee replacement surgery in January 2007, Jackson continued to have knee problems. Jackson also had breathing problems, chronic fatigue, and tumors all over his body.
Despite his health problems, Jackson had realistic plans for release. The Board received numerous letters from Jackson’s family and friends stating that they would provide' Jackson with employment, a place to live and financial and other support. Dr. Fetterman stated in her psychological evaluation: “It. . . seems that he [Jackson] has two viable choices for residence. It
Petitioner Jackson’s brother Anthony Jackson, an officer of an education services and products company, stated in a letter to the Board that he would offer petitioner a job once he is released from prison. The Board stated at the parole hearing that Jackson had “viable” parole plans due to a number of factors, including his brother’s job offer and his “marketable” job skills.
Because Jackson did not have psychological or substance abuse problems, and in light of Jackson’s social and criminal history, prospects for employment if released from prison, and other factors, Dr. Fetterman concluded that Jackson “poses a low likelihood to become involved in a violent offense if released into the free community . . . .” Psychological evaluations conducted in 1999, 2001, 2004 and 2007 came to similar conclusions.
Respondent contends Jackson was unsuitable for parole because at the parole hearing he minimized his culpability for his conviction of possession of a stolen check. At the hearing, Jackson stated his involvement in the crime was limited to driving his friend to a bank, and that his friend was the person who actually unlawfully removed a check from a bank machine. We cannot assess whether Jackson minimized his involvement in this crime because there is nothing in the record, except for Jackson’s testimony, regarding the facts of the crime. Even assuming Jackson minimized his culpability for this nonviolent offense he committed decades ago as an 18 year old,
Respondent also contends Jackson was unsuitable for parole due to his failure to attend sufficient self-help programs in prison. Jackson participated in self-help programs in 1991 and 1992, and then in 2004 he took a 12-week anger management class. When asked why there was a long gap between self-help classes, Jackson stated that such classes were unavailable in the locations he was incarcerated. In its explanation of its decision to deny Jackson parole, the Board noted that Dr. Fetterman opined Jackson would benefit from participation in additional self-help programs.
After reviewing all of the relevant circumstances, including the suitability and unsuitability factors specified in the governing regulations, we conclude that there was no evidence that Jackson constituted a current threat to public safety as of December 3, 2008. The Board thus erroneously denied Jackson parole on that date.
2. The Board’s Decision to Deny Jackson Parole on December 3, 2008, Violated Section 5011, Subdivision (b), and California Code of Regulations, Title 15, Section 2236
Section 5011, subdivision (b) provides: “The Board of Prison Terms shall not require, when setting parole dates, an admission of guilt to any crime for which an inmate was committed.”
The prohibition against requiring an inmate to admit guilt is also found in California Code of Regulations, title 15, section 2236, which provides in part: “The facts of the crime shall be discussed with the prisoner to assist in determining the extent of personal culpability. The board shall not require an admission of guilt to any crime for which the prisoner was committed. A prisoner may refuse to discuss the facts of the crime in which instance a decision shall be made based on the other information available and the refusal shall not be held against the prisoner.”
In In re Shaputis (2008)
An essential issue raised in this case is whether the Board can use an inmate’s failure to admit his guilt as evidence of a lack of insight, a failure to take responsibility, and an absence of remorse. This issue was addressed in Palermo and McDonald.
In Palermo, the petitioner Darin Palermo shot and killed his former girlfriend. At trial, Palermo admitted he accidentally shot the victim and thus was guilty of manslaughter. The jury rejected Palermo’s manslaughter claim and convicted him of second degree murder. (Palermo, supra,
The Court of Appeal held that the Board’s decision to deny Palermo parole was erroneous. The People argued that “the Board’s concerns about [Palermo’s] insight were appropriate and were not an indirect requirement he admit he is guilty of second degree murder.” (Palermo, supra, 171 Cal.App.4th at pp. 1110-1111.) The court rejected that argument. (Id. at p. 1111.)
In reaching its decision, the Palermo court contrasted its case with other cases in which the inmate maintained his innocence. The court stated: “Here, in contrast to the situations in Shaputis and [In re McClendon (2003)
In McDonald, the petitioner Michael McDonald was accused of killing a teenager named Alexander Geraldo. McDonald denied doing so, but he was convicted of second degree murder. (McDonald, supra,
The Board found McDonald suitable for parole but the Governor reversed that decision in part because of “McDonald’s lack of insight based on his claim of limited responsibility.” (McDonald, supra,
In reaching this decision, the McDonald court stated: “[L]ack of insight into the nature and magnitude of the offense, is, without question, a proper factor for the Governor’s consideration in determining whether the inmate poses a current threat to public safety. (Shaputis, supra, 44 Cal.4th at pp. 1260-1261.) However, the conclusion that there is a lack of insight is not some evidence of current dangerousness unless it is based on evidence in the record before the Governor, evidence on which he is legally entitled to rely. That evidence is lacking here, as the Governor cannot rely on the fact that the inmate insists on his innocence; the express provisions of Penal Code section 5011 and section 2236 of title 15 of the California Code of Regulations prohibit requiring an admission of guilt as a condition for release on parole.
“The Governor’s finding in this case is phrased in terms of McDonald’s denial of involvement in the crime; he suggests no other basis on which to
The present case is analogous to Palermo and McDonald. The Board did not directly state that Jackson was unsuitable for parole due to his refusal to admit he was guilty of the commitment offense—indeed, the Board stressed that Jackson was not required to admit guilt. Instead, the Board denied Jackson parole based on its findings that Jackson lacked insight into the crime, failed to take responsibility for it, and did not have remorse. But the only evidence to support these findings was Jackson’s refusal to admit he shot and killed Sharon Wade. This evidence is expressly prohibited by section 5011, subdivision (b) and section 2236 of title 15 of the California Code of Regulations. The Board thus lacked any evidence to support its decision that Jackson was unsuitable for parole.
Because the only basis for the Board to conclude Jackson lacked insight, failed to take responsibility, and lacked remorse was his refusal to admit guilt for the commitment offense, the Board indirectly relied on that refusal to deny Jackson parole. By doing so, the Board violated section 5011, subdivision (b) and California Code of Regulations, title 15, section 2236.
It is also important to recognize that like Palermo and McDonald, this is not a case where the inmate’s version of the crime was physically impossible or strained credulity. While there was certainly substantial evidence to support the trial court’s finding that Jackson murdered Wade, Jackson’s denial of that allegation is not necessarily inconsistent with the evidence. Further, like the inmates in Palermo and McDonald, Jackson accepted responsibility for the death of his victim, behaved well in prison, successfully engaged in self-improvement activity while there, and received positive reports regarding his potential dangerousness by prison psychologists. Under these circumstances, Jackson’s continuing insistence that he did not shoot and kill Wade does not support the Board’s finding that he remains a danger to public safety.
DISPOSITION
The petition for habeas corpus is granted and the Board’s decision to deny Jackson parole on December 3, 2008, is vacated. The matter is remanded to the Board to determine whether a new evaluation by the Board of Jackson’s
Croskey, Acting P. J., and Aldrich, J., concurred.
Notes
All future statutory references are to the Penal Code.
Dr. Fetterman’s report stated: “The inmate stated that he thinks about the victim ‘All the time.’ When asked what he would tell the victim if he had the opportunity, he replied, T blame myself even though I have maintained my innocence. I could have taken a deal. I have learned I played a role by being in a relationship that wasn’t healthy. If I had been wiser and more
Dr. Fetterman’s report further stated: “When discussing the contributing factors to the crime the inmate stated ‘My jealousy and the fact that I made threats to the other person (the other man in the triangle). He was angry at her and our relationship was tumultuous. I had broken up with her to see other people because since I had come back from the Air Force I hadn’t had a lot of girlfriends and I wanted to live that lifestyle. I cared about her (the fiancé) so I told her that I had become involved with someone else. I did want her back because she had been with someone else. It was my immaturity and feeling that I was too young to be tied down. I decided to quit fooling around and focus on her. Then she wanted to explore her options and see other people. I was hurt and realized I had done the same thing. I was jealous and threatened him (the other guy).’ HO ... HQ
“The inmate denied committing the crime, and claimed that the other man in the ‘triangle’ killed his fiancé. However, he said that he takes responsibility for her death because he was involved in an unhealthy relationship where there was infidelity, and that made it possible for a second man to be involved. That man, then became jealous of the inmate, and consequently killed the woman.”
Jackson testified at the parole hearing that the court “dismissed” the felony charges so that he could enroll in the Air Force.
Like a commitment offense, an inmate’s prior criminal history may lose its probative value at some point in time. “[W]hen there is affirmative evidence, based upon the prisoner’s subsequent behavior and current mental state, that the prisoner, if released, would not currently be dangerous, his or her past offense may no longer realistically constitute a reliable or accurate indicator of the prisoner’s current dangerousness.” (Lawrence, supra,
As of July 1, 2005, any reference to the “Board of Prison Terms” in the Penal Code refers to the Board of Parole Hearings. (§ 5075, subd. (a).)