Lead Opinion
Opinion
—The People appeal from an order granting Christopher Morganti’s petition for a writ of habeas corpus and directing the Board of Parole Hearings (the Board) to hold a new hearing to determine whether to fix a release date for Morganti. Like the trial court, we conclude that, even applying the ultralenient “some evidence” standard, the Board’s decision that Morganti is unsuitable for parole cannot be upheld. Accordingly, we affirm the superior court’s decision granting habeas corpus relief.
FACTS AND PROCEEDINGS BELOW
Preconviction History
Morganti was bom in Healdsburg in 1951 into an intact and religious Ttalian-American family. He suffered no abuse or neglect or other trauma as a
In 1977 Morganti moved to the State of Washington, where he obtained a contractor’s license and started his own construction company. He got married and had a child, and also adopted his wife’s son. After five years he and his wife divorced, and in 1987 Morganti moved back to Sonoma County to care for his father, who had cancer. During the two years he cared for his father, Morganti’s drug use escalated, and at one point he was injecting or ingesting as much as an ounce of cocaine daily. Following his father’s death, Morganti remarried. The commitment offense took place six weeks later, on November 16, 1991.
The Commitment Offense
Morganti and Ron Turner, an employee of the Le Grande Motel in Cloverdale, were both “heavily involved in drugs.” Morganti supplied Turner with cocaine in return for the free use of motel rooms. In order to hide the transaction from the owner of the motel, Morganti would give Turner his credit card on the understanding Turner would later “pull” the charge slips before they were processed by the credit card company. When Turner failed to do this on one occasion, Morganti received a credit card bill for $763. After receiving several more such bills-—and at a time at which he “had been high every day, up three or four days[,] and then sleep and then up again”—Morganti confronted Turner in his room at the motel. In a rage, he stabbed Turner 26 times with a knife he had brought with him. He then set fire to the room and fled. He was arrested three days later. In June 1993 a jury found Morganti guilty of second degree murder and arson of an inhabited structure, and he was sentenced to state prison for 21 years to life. These are the only violent crimes Morganti has committed.
As noted in the most recent psychological evaluation, Morganti “has functioned without behavioral problems” for almost 20 years, “worked consistently and regularly” while in prison, most recently as the lead man in the butcher shop. “He generally receives above average to superior evaluations for both relationships and performance.” He has also worked on the waste control crew and earned a certificate qualifying him as a lift truck operator. He has applied for a computer repair program but has remained on the waiting list for more than three years. He has consistently participated for many years in Alcoholics Anonymous (AA), Narcotics Anonymous (NA), Overcomers Outreach (a faith-based 12-step program), and numerous other rehabilitative programs, including classes in stress and anger management. However, his desire to participate in such programs has been frustrated by the elimination of some of them and cutbacks in others, due to reductions in the budget of California’s Department of Corrections and Rehabilitation (CDCR).
When Morganti first arrived in prison he “had a few friends in the biker group” whom he met “through my first cellie”; those relationships ended years ago, when he returned to the Catholic faith and became actively involved in church-sponsored programs. Though he previously spent a great deal of his free time engaging in physical activities and exercise, these activities have been “severely limited” by serious medical problems: he has been diagnosed with heart disease, emphysema, hyperlipidemia, hepatitis C, chronic viral illness, and cardiac arrhythmia, and in 2007 he underwent cardiac bypass surgery. He now uses his free time to “walk a few laps with an old friend and we play dominoes and cribbage. I watch the educational videos and we have Bible studies and classes through the church.”
Morganti has plans in the event he is released on parole. He owns his own house, has numerous physically undemanding job offers, was left money by his mother, and, as indicated by numerous letters sent to the Board in his behalf, has a significant amount of support from family members, former neighbors, classmates, teachers, and others in the Healdsburg community with whom he corresponds, several of whom have offered him employment in the event his “medical issues” allow it. The Board also received a letter from a friend who stated her willingness to transport Morganti to and from support group meetings, such as AA and NA, if he needed such assistance.
Psychological Evaluation
On March 24, 2010, shortly before Morganti’s most recent parole hearing, Dr. Michael Pritchard submitted a 14-page comprehensive risk assessment to the Board. Dr. Pritchard stated that Morganti has made a “commitment to
When asked by Dr. Pritchard to assess himself, Morganti wrote: “I am a good person. I believe in my religion and my family. I believe in my country. I believe in right and wrong. I’ve always made my own way. I took care of myself. Sometimes I let my work overrun my relationships. I have to stay grounded in my church, in my faith. Q] The peer pressure I used to feel, even into my 40s, I don’t care about that any more. I have learned to involve myself with people through my church. I have changed. It is drug use versus religion. I am more secure in myself now. I don’t have to have a lot of friends. I know who I am and what I am. I am a Catholic, an Italian, an American, a pop, and a grandpa; at least I want to be a grandpa if I get a chance.” Dr. Pritchard commended Morganti for speaking “openly and directly,” and observed that his statements are “not inaccurate, although perhaps self-serving.” He also felt Morganti’s revelations about his past use of controlled substances were “a product of thoughtful reflection on his history of substance abuse.”
In assessing the risk of violence presented by Morganti’s release on parole, Dr. Pritchard utilized “a combination of actuarially-derived and structured professional judgment approaches,” specifically the “Psychopathy Check List-Revised” (PCL-R) approach and that prescribed by the “Historical-Clinical-Risk Management-20” (HCR-20). Additionally, for assessment of the general risk for criminal recidivism, Dr. Pritchard employed the “Level of Service/Case Management Inventory” (LS/CMI) protocol. According to him, “[t]hese measures are widely used and are supported by years of research in the risk assessment field. They have been cross-validated with various forensic populations, including United States males in correctional settings. They are scored on the basis of semi-structured interview and information obtained from the record. Estimates of risk [are] presented categorically: Low, Moderate/Medium, or High as compared to the general offender population.”
Dr. Pritchard stated that under the PCL-R Morganti “obtained a total score . . . which placed him in the Low Range of Psychopathy when
Dr. Pritchard’s overall assessment of Morganti was that “Mr. Morganti presents a LOW RISK for violence in the free community. For all the antisocial behavior demonstrated by his cocaine addiction and penchant for the ‘biker philosophy,’ his record reflects no violence or crimes outside of the life crime. He has functioned responsibly and compliantly while incarcerated. He is currently 59 years old and in relatively poor health. Despite his cavalier attitude about his personal potential for substance use relapse, he nevertheless presents as an overall low risk to reoffend.”
The 2010 Parole Hearing and Decision
During the course of the four-hour hearing that took place on August 2, 2010, the two members of the Board panel briefly acknowledged that Morganti had received positive psychological evaluations;
Nevertheless, after taking a recess and deliberating, the presiding commissioner announced that Morganti had been found unsuitable for parole, and “[i]t’s a three-year denial” (Pen. Code, § 3041.5, subd. (b)(3), with subsequent statutory references are to the Pen. Code unless otherwise indicated.).
Pursuing this subject, the deputy commissioner acknowledged Morganti had taken many self-help programs in addition to AA and NA, but questioned their efficacy, stating that many were conducted “by video conference, or correspondence classes” or were of short duration. During the hearing, after Morganti had described the self-help, therapy, and vocational programs he was taking or had taken, the deputy commissioner inquired about the length of the programs, the frequency of their meetings, and the opportunity they afforded for class discussions. Morganti told her that one course, Cage Your Rage, lasted eight weeks, that other courses in anger control and stress management were each three-week courses, and that a “faith-based self-improvement course” met once a week for between four and six weeks. Morganti also stated that because of “things with the budget,” the AA and NA programs were then meeting only once a month, and the stress management class used some “distance learning classes” in which class discussions were not possible.
The deputy commissioner appears to have concluded that the programs Morganti was participating in were insufficiently “comprehensive,” observing that “a comprehensive relapse prevention plan would definitely speak to
The Habeas Corpus Proceedings in the Superior Court
On January 3, 2011, Morganti filed a petition for habeas corpus in the Sonoma County Superior Court arguing first, and fundamentally, that “the Board’s decision to deny Morganti parole lacked any supporting evidence and was otherwise arbitrary in violation of federal and state guaranties to due process of law.” Following an order to show cause, the warden filed a lengthy return, and petitioner a response. On June 6, 2011, the trial court (Honorable Virginia Marcoida) filed a detailed and thoughtful nine-page order granting the petition, concluding that the “Board’s finding of lack of insight is not supported by some evidence.”
Finding the Board’s determination that Morganti “lack[ed] insight into his drug use and addiction” was based on its “conclusion that (1) petitioner did not believe programs such as A.A. and N.A. are essential to his recovery, and (2) petitioner did not fully understand the causative factors of his substance abuse,” the court found that “[n]one of these findings are supported by the record.” Rejecting the Board’s conclusion that Morganti was “relying solely on his religion to stay away from drugs” as a “distortion and oversimplification of [his] statements,” the court stated that there was “no evidence that he lacks insight into the substance abuse that led him to commit murder.” Citing portions of his testimony at the parole hearing, the court pointed out that Morganti “acknowledges that his recovery consists of a combination of things, including his religious beliefs and programs such as A.A. and N.A. He affirmed that he intends to participate in A.A. and N.A. upon his release. The mere fact that petitioner may believe that, for him, the most important aspect of his recovery is his faith in religion does not mean that he is discounting or disregarding the importance of A.A. and N.A. programs as an integral part of the recovery process.” The court also noted that Morganti “affirmed that the 12-step program is part of his daily life,” and that the “detailed relapse prevention plan” he presented to the Board “included participation in 12-step programs.”
The court found that the Board’s determination that Morganti “needs to ‘go into some more understanding of the motivation of why you turned to drugs’ ” also was unsupported by some evidence. As the court explained,
Then, noting that since 1994 Morganti “has dedicated himself to leading a sober and drug free life,” “participated in all the A.A. and N.A. programs that are available to him in prison” and “also participated in church-based 12-step programs,” the court stated that he “has an exemplary history of rehabilitation and reform in prison; and all evidence points toward continued rehabilitation once released.” “In sum,” the court concluded, “the record provides no rational basis upon which to conclude petitioner is blind to the problem presented by his past drug abuse or has refused to confront the problem, nor reason to believe petitioner is likely to resume abusing substances after more than 16 years of sobriety and active participation in A.A. and N.A. There is no evidence that petitioner will return to drug or alcohol abuse if released on parole. Petitioner’s resolve to put into practice the teachings of A.A. and N.A. and remain drug and alcohol free during periods of time where A.A. and N.A. programs were not available to him in prison provides additional evidence of petitioner’s ability to maintain his gains upon release.”
The court granted Morganti’s petition and remanded the matter to the Board to conduct a new parole hearing.
DISCUSSION
The Law and the Standard of Review
We very recently collected and confirmed the applicable rules that govern here, in In re Young (2012)
In re Shaputis (2011)
“Section 3041 mandates that the Board 1 “ ‘normally’ ” ’ set a parole date for an eligible inmate, and ‘ “must” ’ do so unless it determines that an inmate poses a current threat to public safety. (Prather, supra,
“Accordingly, as we have discussed, the Board must determine, consistent with due process, the ‘essential question’ of ‘whether the inmate currently poses a threat to public safety.’ (Shaputis II, supra, 53 Cal.4th at pp. 209, 220.) The Board answers this question by conducting ‘an individualized inquiry’ into the inmate’s suitability for parole (id. at p. 219), ‘draw-ting] . . . 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.’ (Id. at p. 221, italics added.) It is required to give due consideration to the criteria referred to in section 3041 and, more specifically, in [California Code of] Regulations, [title 15,] section 2402, promulgated by the Board pursuant to legislative mandate. [Fn. omitted.] (Prather, supra,
“[California Code of] Regulations[, title 15,] section 2402 contains numerous factors regarding both an inmate’s unsuitability [fn. omitted] and suitability [fn. omitted] for parole that the Board must consider and rely on to assess whether the inmate poses ‘an unreasonable risk of danger to society if released from prison.’ ([Cal. Code] Regs., [tit. 15,] § 2402, subds. (a), (c), (d).) These ‘matrix of factors . . . contemplates that even those who committed aggravated murder may be paroled after serving a sufficiently long term if the Board determines that evidence of post-conviction rehabilitation indicates they no longer pose a threat to public safety.’ (Lawrence, supra, 44 Cal,4th at p. 1211.)
“We review the Board’s decision under a ‘highly deferential “some evidence” standard.’ (Shaputis II, supra,
“More specifically, although ‘ “[t]he precise manner in which the specified factors relevant to parole suitability are considered and balanced” ’ lies with
“ ‘ “As long as the . . . decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court’s review is limited to ascertaining whether there is some evidence in the record that supports the . . . decision.” ’ (Shaputis II, supra,
“Thus, Shaputis II and the Supreme Court opinions upon which it relies make clear that we are to review the Board’s decision to ensure that it satisfies two due process imperatives that are particularly relevant to this case. We must determine whether the Board’s decision reflects due consideration of all relevant statutory factors and, if it does, whether its analysis is supported by a modicum of evidence in the record, not mere guesswork, that is rationally indicative of current dangerousness.
“If the Board’s consideration of the specified factors is not supported by some evidence in the record, we must grant the petition and order the Board to vacate its petition. (Rosenkrantz, supra, 29 Cal.4th at p. 658.) In such a case, we ‘generally should direct the Board to conduct a new parole-suitability hearing in accordance with due process of law and consistent with the decision of the court, and should not place improper limitations on the type of evidence the Board is statutorily obligated to consider.’ (Prather, supra,
Additionally, because the state cannot deprive any person of liberty without due process of law (U.S. Const., 14th Amend., § 1; Cal. Const., art. I, § 7),
There Is Not “Some Evidence” Morganti Would Pose an Unreasonable Risk of Danger to the Public if Released on Parole
The Board’s conclusion that Morganti would pose an unreasonable risk of danger to society if released from prison was based on its finding that “Morganti’s violent commitment offense, viewed in light of his inadequate insight into his drug abuse, indicated that he was too dangerous to release on parole.” According to the Attorney General, the evidence supporting this finding consists of two factors: (1) Morganti’s statements to both the Board and the evaluating psychologist that his faith and Catholic upbringing were sufficient to prevent a relapse into substance abuse, and that programs such as Narcotics Anonymous, “while helpful were not essential to his sobriety,” and (2) his “lack of insight into the causative factors of his substance abuse.”
As we explain, the first factor—which is manufactured by the Board’s mischaracterizations of Morganti’s statements to the Board and to Dr. Pritchard— does not exist. The second factor is highly questionable, but any lack of insight would not provide a basis for the denial of parole in any event, because there is no evidence such a deficiency, either by itself or in conjunction with the commitment offense, has a rational tendency to show that Morganti currently poses an unreasonable risk of danger.
No Evidence Shows Morganti Relies Only on His Religious Faith to Prevent Relapse into Substance Abuse, so That His Faith or the Possible Loss of It Is Not Rationally Indicative He Is Currently Dangerous
Apart from relatively brief periods in 2005 and 2006 (during which he was being treated for heart disease and other chronic and degenerative health problems), Morganti has participated in AA and NA for more than 15 years. Not once did he indicate a desire to stop doing so, not once a belief that the
The question whether Morganti considered his “Catholic upbringing” sufficient to prevent a relapse into substance abuse, and might therefore cause him to discontinue participation in AA and NA, arose at the hearing when the presiding commissioner asked to see a copy of Morganti’s “relapse prevention plan.” There, in a portion in which Morganti describes his “evening inventory,” he states: “At the end of my day is my evening prayer. To recite Psalm 51, which I have done for over 15 years now. To check off my 12-Steps on NA and make sure I didn’t violate any principles. Then to give thanks for another drug free day.” A later paragraph in the plan states that, if paroled, “I plan to attend NA meetings in my town, and to participate in those meetings.”
After reading the plan, the presiding commissioner pointed out that in his comprehensive risk assessment Dr. Pritchard indicated that Morganti feels participation in AA, NA, and other self-help groups “are not essential to his sobriety” as “he intends to rely on the support of his church . . . .” The presiding commissioner’s “concern” was that “what you’re saying is that you don’t seem to think you have a problem right now with alcohol, with drugs or alcohol, and you don’t need a program. That’s what I’m hearing you [say], and I want to make sure I’m hearing this right. You say you have your religion to fall back on. You had your religion before, right?” After Morganti informed him that “I lost my religion before I took off down this road,” the presiding commissioner responded by pointing out Morganti had lost his religion “because you didn’t agree with church doctrine”
Morganti answered by noting that in his written response to Dr. Pritchard’s evaluation (which was before the Board) he admitted he “didn’t explain myself very well in the statement I made ‘it[’]s God vs. Drugs.’ In the Bible a rich man asked Jesus what he must do to enter heaven. lesus told him to sell all that he had and follow Him. The man was sad and walked away because he was very rich. You cannot serve two Gods. In the rich man’s case it was money and it my case, it used to be drugs. With all the tools from AA and NA and Overcomers Outreach, I have learned and applied them to my life since this tragic crime happened. I know in my heart that I have changed significantly. I cannot serve and follow the ways of God and use drugs also.”
It is also important to recall that, unlike the Board, Dr. Pritchard did not suggest Morganti was (or might become) unwilling to participate in AA or NA, or considered them ineffectual, or that he believed the teachings of the Catholic church conflicted with those of AA or NA. Nor did Dr. Pritchard express concern about the possibility Morganti might leave the Catholic Church. Aware that all former substance abusers are exposed to the risk of relapse, and that this possibility is taken into account by the risk assessment tests showing Morganti to be at low risk of recidivism, Dr. Pritchard’s main point was that the inherent risk should be mitigated by ensuring Morganti’s “ongoing participation in NA or AA meetings, adherence to said organizations’ guiding principles and/or the maintenance of an AA or NA sponsor in the free community . . . .” (Italics added.) Dr. Pritchard’s report never even suggests, let alone states, that Morganti’s firm “internal realization of the negative consequences of his addiction” is inadequate; all it suggests is that his resolve should be monitored, as could have been and is often required as a special condition of parole. (Cal. Code Regs., tit. 15, § 2281, subd. (b); see also Pen. Code, §§ 3068-3070.) To the contrary, in his report to the Board Dr. Pritchard quotes from Morganti’s forthright description and assessment of his past drug use, and characterizes it as a “thoughtful reflection on his history of substance abuse,” and the “large” role it played in the commitment offense. In sum, the presiding commissioner’s conclusion that Morganti did not consider his continued participation in AA or NA “essential” and might rely only on “his faith and Catholic upbringing” utterly distorts Dr. Pritchard’s comments.
Moreover, the presiding commissioner’s conclusion inexplicably ignores the evidence—undisputed evidence—establishing Morganti’s involvement in AA and/or NA for more than 17 years, his plan to remain involved in those programs if paroled (which can be enforced as a special condition of parole),
At a later point, after questioning Morganti about Ms confidence that “the Catholic faith is going to keep you on the right path,” the presiding commissioner asked Morganti, “If you’re depending on the Bible to keep you off substances, do you tMnk that’s enough?” Morganti made clear he was not depending just on the Bible, insisting “it’s a combination of tMngs I use now. I use the NA. I use the AA. I use my Bible. I use my church.” When asked “[a]re you going to get involved in AA or NA if you were to get a date,” Morganti answered unequivocally: “Yes, I am.” Morganti also explained that Ms confidence in Ms ability to remain drug and alcohol free was based not only on the strength of his religious belief, but Ms degenerating health. Reminding the panel that he was then almost 60 years old and infirm, he said, “I’m paying for the substance abuse right now. I mean, I’ve had bypass surgery. I’m fighting with Hepatitis C treatments and stuff. I can relate all of these problems right straight back to drugs, the emphysema and everythmg, so I mean I realize the toll that they’ve taken on my life.”
Morganti stated to Dr. Pritchard that he “go[es] to AA and NA now, but [17 years ago] I made a decision that I was a drug addict and since that day I haven’t done it at all. It was December 22, 1994. That was the last time. The light went on.” Nothing in the record casts doubt on the truth of that statement. The risk a former drug or alcohol abuser will relapse, which can never be entirely elimmated, cannot of itself warrant the deMal of parole, because if it did the mere fact an inmate was a former substance abuser would “eternally provide adequate support for a decision that [he] is unsuitable for parole.” (In re Lawrence, supra,
The risk an inmate may fall back mto alcohol or drug abuse can justify deMal of parole only where it is greater than that to which a former drug or alcohol abuser is normally exposed. The Board apparently found such a
The presiding commissioner’s statement that what Morganti was “saying is that you don’t seem to think you have a problem right now with alcohol, with drugs or alcohol, and you don’t need a program” puts words in Morganti’s mouth—words he not only never uttered, but words he repeatedly disclaimed. As the trial court aptly observed, “[t]he mere fact that petitioner may believe that, for him, the most important aspect of his recovery is his faith in religion does not mean that he is discounting or disregarding the importance of A.A. and N.A. programs as an integral part of the recovery process. [Morganti] affirmed that the 12-step program is part of his daily life . ...” In sum, the Board’s conclusion that Morganti relies only on his religion to stay away from drugs is unsupported by any evidence.
As earlier explained, the deputy commissioner appears to have voted to deny Morganti parole for the additional reason that the 12-step and other rehabilitative programs he participated in were all either so short, or met so infrequently, or consisted of correspondence courses, or were conducted by video conference, that none could be deemed “comprehensive.” If the quality of the rehabilitative programs Morganti participated in were deficient, they were the only ones made available to him by the state. So to deny him parole on that basis is, frankly, outrageous.
As noted, our Supreme Court has “expressly recognized that the presence or absence of insight is a significant factor in determining whether there is a ‘rational nexus’ between the inmate’s dangerous past behavior and the threat the inmate currently poses to public safety. [Citations.]” (Shaputis II, supra,
Accepting, as we must, that an inmate’s insufficient understanding of the causes of his crime is a factor that may show him unsuitable for parole, it is not enough to establish that the inmate’s insight is deficient in some specific way. “ ‘If simply pointing to the existence of an unsuitability factor and then acknowledging the existence of suitability factors were sufficient to establish that a parole decision was not arbitrary, and that it was supported by “some evidence,” a reviewing court would be forced to affirm any denial-of-parole decision linked to the mere existence of certain facts in the record, even if those facts have no bearing on the paramount statutory inquiry. Such a standard, because it would leave potentially arbitrary decisions of the Board or the Governor intact, would be incompatible with our recognition that an inmate’s right to due process “cannot exist in any practical sense without a remedy against its abrogation.” ’ ([Lawrence, supra, 44 Cal.4th] at p. 1211, quoting Rosenkrantz, supra,
The Attorney General contends that the Board’s conclusion regarding Morganti’s “lack of insight into the causative factors of his substance abuse”
Considered in its entirety, we find nothing in the record—not in any of the psychological evaluations, not in Morganti’s statements to the Board, not in his conduct in prison—indicating that Morganti attributes his drug dependency to others or to his “lifestyle.” And nothing in the record indicates that Morganti fails to appreciate the causes of his substance abuse and its relationship to his crime, and his own criminal responsibility. On the contrary, the record indicates that, as Dr. Pritchard put it, Morganti has engaged in “thoughtful reflection” about his substance abuse and its relationship to the homicide he committed. As indeed he did, manifest by Morganti’s consistent statements to the Board since becoming eligible for parole.
Morganti elaborated on the causes of his drug dependency, and its relationship to his crime, on numerous occasions, but did so in greatest detail in his seven-page handwritten “Personal Statement.” There, in candid detail, Morganti acknowledged the “destructive,” “worthless,” and “irrational” life he was living at the time he committed his crime; the extent of his drug and alcohol abuse; the pain others suffered as a result of his criminal act; and the relationship between his drug and alcohol abuse and the homicide. He also acknowledged his lack of awareness “that I was abusing drugs to avoid the pain of being divorced by my wife and separated from my children and then watching my father lose a two-year battle with cancer. [][] After being sentenced to life in prison I had a choice. I could stay at rock bottom, or I could start the long and painful process of facing myself, admitting my fault, understanding my past and building a life worth living.” Morganti went on to explain that his drug use progressed from the teenage use of marijuana and LSD to “a gradual lifestyle change that embraced the motorcycle culture, drugs, alcohol, life in the fast lane. . . . My drug use distorted my thinking, priorities and values to such an extent that I acted irrationally with impulsivity and unpredictability, as I did on November 16, 1991,” the date he murdered Ron Turner. Morganti stated that he cannot explain the murder, because it was “irrational” and “unexplainable,” but that he has come to “understand what caused me to become a murderer. I understand how my drug abuse chipped away at my moral and social foundation. I understand that I am responsible for my violence because I am responsible for myself. I hate who I was then. I hate the man that took Ron’s life, that deprived five children of a father and fourteen grandchildren [of] a grandfather and four great grandchildren [of] a great grandfather. I am sorry for the pain and
It seems to us that the Board’s concern was not the absence of Morganti’s insight, but the sufficiency of his appreciation that his substance abuse was a causative factor in the commission of his crime. We think it appropriate to again point out, as have other courts, that it is questionable “whether anyone can ever fully comprehend the myriad circumstances, feelings, and current and historical forces that motivate conduct, let alone past misconduct.” (In re Ryner, supra,
In sum and in short, we question whether the record can fairly be construed as establishing that Morganti lacks “sufficient” insight into the nature of his past substance abuse and the relationship between that abuse and the commitment offense.
Our doubt, however, is beside the point; the decisive inquiry is not whether there is “some evidence” Morganti “lacks insight” into his past criminal conduct or the cause thereof, but whether he constitutes a current threat to public safety. (Lawrence, supra,
All of the experts who evaluated Morganti felt that he did not pose a security risk. Dr. Petracek opined in 2006 that “[i]f released into the
Finally, all of the forensic protocols currently used to assess the risk an inmate may endanger public safety demonstrate only suitability. In 2006 Morganti scored 1.8 on the Level of Service Inventory—Revised (LSI-R) test, which means that “ ‘if 100 inmates were released on parole, he would do better on parole than 98 percent of them.’ ” Dr. Macomber stated that at that time Morganti presented “ ‘no significant risk factors’ ” and “ ‘poses less risk to society than the average citizen in the community.’ ” The three risk assessment protocols applied to Morganti in 2010—i.e., the PCL-R, HCR-20, and LS/CMI tests—also each found that Morganti presented a “low risk” of endangering public safety if released to free society.
We appreciate that the “some evidence” standard is “extremely deferential” (Rosenkrantz, supra,
In Shaputis I, the Court of Appeal majority concluded that the petitioner’s “many years of sobriety, advanced age, and chronic health problems suggest he never again will consume alcohol, will not relapse into violent conduct, and thus does not remain a risk to public safety.” (Shaputis I, supra,
The record fully supports the findings of the trial court that there is no evidence rationally indicating that Morganti is blind to the problem presented by his past drug abuse or unwilling to confront the problem, nor reason to think he is likely to resume abusing substances after nearly two decades of abstinence and active participation in AA and NA. As the trial court also found, Morganti’s “resolve to put into practice the teachings of A.A. and N.A. and remain drug and alcohol free during periods of time where A. A. and N.A. programs were not available to him in prison provides additional evidence of petitioner’s ability to maintain his gains upon release.”
The distressing nature of this case arises not just from the Board’s distortion of the record, but as well from its abject indifference to the considerable evidence Morganti is unlikely to relapse and is suitable for release.
Finally, as also pointed out in Smith, “if [an inmate’s] past use of drugs did invariably establish his unsuitability, then the Governor [or the Board] could deny parole for the rest of [the inmate’s] life based on this immutable factor, without regard to or consideration of subsequent circumstances and evidence indicating that he has no current desire for drugs and that there is little current likelihood of drug relapse, let alone a return to violent conduct as a result of it.” (In re Smith, supra,
DISPOSITION
We agree with the trial court that there is not “some evidence” Morganti will pose an unreasonable risk of danger to society if released from prison. We thus affirm the order granting the petition for a writ of habeas corpus.
Lambden, J., concurred.
Notes
Morganti had three prior convictions: in 1976 he was convicted of reckless driving (Veh. Code, § 23103) and carrying a concealed weapon (Pen. Code, former § 12025), for which he received “3 months summary probation,” and in 1991 he was convicted of reckless driving while eluding a peace officer (Veh. Code, § 2800.2), for which he served 10 days in county jail on a conditional sentence of three years in state prison.
Based on materials lodged in this court in connection with the petition, the Board was apparently referring not just to Dr. Pritchard’s evaluation, but also those of the two psychologists who separately evaluated Morganti in 2006 in connection with his first parole hearing that year: Dr. Laura Petracek and Dr. Melvin Macomber. Dr. Petracek felt Morganti was sincerely remorseful for his crime, noted his disciplinary free behavior, and found his past drug use “no longer relevant to a diagnosis of current dangerousness.” With respect to Morganti’s dangerousness, she opined that “[i]f released into the community, he is considered a low risk of re-offending. He is more than likely to maintain his gains if released. He has demonstrated no propensity to violence within the prison setting to date and is unlikely to do so if released into the community.”
Dr. Macomber agreed. Stating that Morganti “does not have any mental or emotional problems,” he assessed Morganti’s then present dangerousness as follows: “[Ijnmate Morganti is an older gentleman who is in poor health. He does not pose any risk at all to society. The Level of Service Inventory-Revised was administered. This is an actuarial measure that assesses criminal history, substance abuse history, social relations, and other factors to determine current risk level on parole. He obtained a score of 1.8 cumulative frequency for prison inmates. This means that if 100 inmates were released on parole, he would do better on parole than 98 percent of them.”
The Board is required to “separately state reasons for its decision to grant or deny parole” (§ 3041, subd. (e)(3), italics added), and that “[a]t any hearing, the presiding hearing officer shall state his or her findings and supporting reasons on the record.” (§ 3042, subd. (c), italics added.)
In light of the fact that the court ordered a new parole hearing, it denied as moot Morganti’s claim that the Victim’s Bill of Rights Act of 2008, known as “Marsy’s Law,” which amended section 3041.5 by extending the periods of time within which the Board might schedule a new hearing after the denial of parole, violates state and federal ex post facto protections. Because we affirm the judgment, we too have no need to decide this issue, which is currently before the Supreme Court. (In re Aragon (2011)
The court also rejected Morganti’s claim that the Board “systematically and arbitrarily denies parole to all parties at or near their MEPD (minimum eligible parole date), and thus is disregarding the statutory framework that makes parole the norm and denial of parole the exception,” determining that this claim “is conclusory and fails to state a prima facie claim for relief.” Morganti renews this argument here. (See Code Civ. Proc., § 906.) We also decline to address this issue, as we consider it moot. We also agree with the trial court that the claim is
Shortly after the notice of appeal, the warden asked the superior court to stay its June 6 order granting the petition for habeas corpus pending resolution of this appeal. That request was granted on August 11, 2011. On August 18, 2011, Morganti moved in this court for an order lifting the stay ordered by the superior court. In denying that request on October 17, 2011, we explained that Morganti’s request “is not properly raised by motion, as there is no authority in the Penal Code or elsewhere for such a motion.” Treating the motion instead as a petition for writ of mandate, we denied it because Morganti failed to show that the superior court had abused its discretion in granting the stay.
So far as the record shows, Morganti’s only reason for leaving the church was that “when my grandmother passed away and my mother was trying to become Catholic, to convert into Catholicism, and the church at the time wouldn’t let her become a Catholic because she had a previous marriage. And that just turned me.”
Because the Board did not state its decision in writing, the only insight we have as to the rationale for finding Morganti currently dangerous is the statements of the two members of the panel at the close of the parole hearing. These statements do not clearly indicate whether the panel or either member found that Morganti regarded AA and NA as ineffective in general or only in his case, due to the strength of his religious faith.
Such condemnation of the programs is also “an affront ... to the Department of Corrections.” (In re Ramirez (2001)
Morganti satisfies almost all of the regulatory criteria indicative of suitability: his juvenile record reflects no history of violent crimes (Cal. Code Regs., tit. 15, § 2402, subd. (d)(1) & (6)); his psychological evaluation indicates no mental health issues, and confirms his maturation, growth of understanding, and insight (Cal. Code Regs., tit. 15, § 2402, subds. (c)(5), (d)(3) & (4)); he has developed marketable skills and made realistic plans for his release (Cal. Code Regs., tit. 15, § 2402, subd. (d)(8)); both his psychological evaluations and his advancing age indicate low probability of recidivism (Cal. Code Regs., tit. 15, § 2402, subd. (d)(7)); his conduct in prison has been discipline free, and while in prison he has participated actively and successfully in self-help and substance abuse programming, educational advancement and vocational training (Cal. Code Regs., tit. 15, § 2402, subd. (d)(9)); and his many letters of support demonstrate that he is capable of sustaining stable relationships (Cal. Code Regs., tit. 15, § 2402, subd. (d)(2)). The only regulatory factor missing is that Morganti did not at the time he committed his crime “suffer]] from Battered Woman Syndrome.” (Cal. Code Regs., tit. 15, § 2402, subd. (d)(5).)
Concurrence in Part
I concur in the majority opinion in all respects save one.
Christopher Morganti claims not only that the denial by the Board of Parole Hearings (the Board) of his request for parole is unsupported by “some evidence,” but also that the Board’s disregard for the statutory framework of parole and failure to accord parole applicants individualized consideration deprives him and implicitly all life prisoners a liberty interest safeguarded by article I, section 7, of the California Constitution and the Fourteenth Amendment to the Constitution of the United States. Producing evidence showing that life prisoners are almost never granted a parole release date at the time the Legislature contemplated a date would ordinarily be granted, Morganti requested the opportunity to conduct discovery and have an evidentiary hearing in order to establish a factual basis for his due process claim. The trial court denied the request on the ground Morganti’s constitutional argument was “conclusory and fails to state a prima facie claim for relief.” Because I believe the ruling erroneous, I would remand this case to the trial court with directions to grant Morganti’s request for discovery and an evidentiary hearing.
In addition to his due process claim, Morganti contends the Board administers the law governing the parole process in a manner regularly resulting in the confinement of life prisoners for periods of time disproportionate to their culpability. He seeks an inquiry into the policies and practices responsible for this systematic violation of constitutional rights. The integrity and lawfulness of the parole process pertaining to life prisoners, which Morganti provides reason to question, requires that this judicial inquiry be undertaken.
As will be seen, more prisoners are now being indeterminately sentenced under our nominally determinate sentencing scheme than were ever indeterminately sentenced under the indeterminate sentence law (ISL) (Pen. Code,
I.
Morganti’s assertion that the Board disregards the parole scheme pertaining to life prisoners set forth in the DSL focuses on the statement in section 3041 that “[o]ne year prior to the inmate’s minimum eligible parole release date,” a panel of the Board shall “meet with the inmate and shall normally set a
Morganti’s claim that, contrary to the mandate of section 3041, “parole is practically never granted at the initial parole consideration hearing,” is based on statistical evidence regarding the Board’s parole decisions from January 1, 2000, through October 31, 2010, which he attached as an exhibit to his petition. The exhibit—the accuracy of which was undisputed by the Board in the court below and conceded by the Attorney General at oral argument before this court—shows that during that nearly 10-year period the Board conducted 5,993 initial parole hearings at which parole was granted or denied. In 5,372 of those hearings parole was denied; in 599 the inmate stipulated to being unsuitable for parole,
The seemingly inordinate rate at which life prisoners are found unsuitable for parole—i.e., “an unreasonable risk of danger to society if released from prison” (Cal. Code Regs., tit. 15, § 2402, subd. (a))—is hard to square with the fact that recidivism among life prisoners is less than 1 percent, which is “minuscule” compared to that of other prisoners. (Weisberg et al., Stanford Criminal Justice Center, Life in Limbo: An Examination of Parole Release for Prisoners Serving Life Sentences with the Possibility of Parole in California (Sept. 2011) 1, 17 (Life in Limbo).)
Our agreement with the trial court’s determination that the denial of parole to Morganti is unsupported by “some evidence” should not be allowed to obscure Morganti’s more consequential constitutional claim, which pertains to the most vexing sentencing issue now regularly confronting the courts of this state: whether the seemingly systematic denial of parole to fife prisoners at the hearing specified in section 3041, subdivision (a), is the product of the individualized consideration that is constitutionally required or a thinly veiled policy of “transforming most indeterminate sentences with the possibility of parole into sentences of life-without-parole.” (Comment, Time To Move On: The California Parole Board’s Fixation with the Original Crime (2008) 27 Yale L. & Pol’y Rev. 239.)
The evidence Morganti offered in support of his request for discovery and an evidentiary hearing raises not only the questions whether the Board is systematically violating the legislative mandate and inmates’ due process rights, but whether the disconnect between the parole-granting norm prescribed in subdivision (a) of section 3041 and actual Board decisionmaking may be the result of, or related to, the Board’s practice of delaying the fixing of an inmate’s “base term” until after he or she has been deemed suitable for release. (Cal. Code Regs., tit. 15, § 2403, subd. (a).) As I later explain, that practice—which is identical to the practice condemned by our Supreme Court in Rodriguez, supra,
In short, our determination that no evidence supports the Board’s denial of Morganti’s request for parole leaves entirely unaddressed his claim that the Board denies him and thousands of other life prisoners their constitutional right to individualized consideration of their parole suitability due to (1) a Board policy to almost never grant life prisoners a parole release date at the time the Legislature mandated that such a date should “normally” be granted, and (2) the Board’s administration of the parole and term-setting process in a manner that does not guard against but facilitates the disproportionate sentences resulting from application of the policy.
II.
The majority declines to address these issues because my colleagues agree with the trial court that “the claim is conclusory, and not adequately
The Attorney General’s arguments why we should not address Morganti’s constitutional claim seem to me manifestly untenable. The claim is not before us, she maintains, because “ 1 “a respondent who has not appealed from the judgment may not urge error on appeal.” ’ [Citations.]” (County of Los Angeles v. Glendora Redevelopment Project (2010)
The course urged by the Attorney General would always operate to insulate the constitutional claim from judicial review, regardless whether a challenged Board ruling was found supported by “some evidence.” If there were not “some evidence,” the case would be remanded on this basis and the constitutional claim would be moot; if there were such evidence, its existence would defeat the inmate’s claim for relief. The rule that a reviewing court should not entertain a constitutional claim if the party seeking relief can be provided a remedy on a lesser ground is not properly used to effectively immunize from judicial review a government practice credibly claimed to infringe the constitutional rights of a large class of persons. Furthermore, as I have said, it is necessary to address Morganti’s constitutional claim to ensure that, upon remand to the Board for a new hearing, his suitability for release is not determined on the basis of a Board policy, as he claims would otherwise be the case.
The Attorney General also contends that the statistics Morganti relies upon are no more impressive than those found inadequate in In re Rosenkrantz (2002)
Rosenkrantz sets a high standard,
III.
The manner in which the parole process can impermissibly facilitate disproportionate sentences was first brought to judicial attention in cases arising under the ISL, and these cases continue to be relevant. Moreover, as I will explain, the manner in which the Board now administers provisions of the DSL relating to indeterminate sentencing is similar to the manner in
Morganti’s constitutional challenge to the manner in which the Board administers the parole process arises out of the conflict between the paramount purposes the DSL was designed to achieve, and the purposes of the indeterminate sentencing carried out under provisions of the DSL applicable to life prisoners such as Morganti. The conflict, and the manner in which the Board attempts to resolve it, warrant brief discussion.
Under the ISL, all convicted felons were indeterminately sentenced. “The court imposed a statutory sentence expressed as a range between a minimum and maximum period of confinement—often fife imprisonment—the offender must serve. An inmate’s actual period of incarceration within this range was under the exclusive control of the parole authority [(then called the Adult Authority)], which focused, primarily, not on the appropriate punishment for the original offense, but on the offender’s progress toward rehabilitation. During most of this period, parole dates were not set, and prisoners had no idea when their confinement would end, until the moment [the Adult Authority] decided they were ready for release.” (In re Dannenberg (2005)
The central theses of the DSL, diametrically opposed to those of the ISL, are reflected in the legislative findings and declarations set forth in its first provision. The DSL commences with the proposition that the purpose of imprisonment for crime is not rehabilitation, but “punishment,” and states that “[t]his purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances.” (§ 1170, subd. (a)(1); see also Morris, The Future of Imprisonment: Toward a Punitive Philosophy, supra, 72 Mich. L.Rev. 1161.) The Legislature further found and declared “that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion.” (§ 1170, subd. (a)(1).)
The DSL establishes a triad of alternative sentences for most felonies. The sentencing court imposes the middle term unless mitigating or aggravating circumstances call for imposition of the specified lower or upper term. Thus, a determinate sentence is tailored primarily to the offense, not the offender, a paradigm that shifts attention away from the rehabilitative sentencing model exemplified by the ISL, which tailored the sentence to the offender, not the offense. However, under the DSL “certain serious offenders, including ‘non-capital’ murderers . . . , remain subject to indeterminate sentences. These indeterminate sentencees may serve up to life in prison, but they become eligible for parole consideration after serving minimum terms of confinement. [Citation.] As under prior law, life inmates’ actual confinement periods within the statutory range are decided by an executive parole agency,” which is now the Board. (Dannenberg, supra,
The most significant tension in the DSL, which has become increasingly problematical and is at the heart of Morganti’s constitutional claim, arises from the conflict between its chief purposes—the enhancement of uniform sentencing and the early setting of terms proportionate to the seriousness of the offense—and the perpetuation, with respect to a large and growing number of inmates, of the indeterminate scheme responsible for the problems
The legislative attempt to reconcile the indeterminate sentencing prescribed by the DSL to the goals of uniformity and proportionality—i.e., the intention “to apply some determinate sentencing principles to life-maximum inmates” (Dannenberg, supra,
The conflict between the relatively objective factors central to determinate sentencing enumerated in subdivision (a) of section 3041 and Board regulations (Cal. Code Regs., tit. 15, §§ 2404, 2405) on the one hand, and the subjective consideration of the inmate characteristic of indeterminate sentencing required by subdivision (b) of section 3041 on the other hand, was almost
A new development has further exacerbated the situation. Historically, when a life prisoner was denied parole, the parole authority was required to set the prisoner’s next hearing within 12 months. (§ 3041.5, subd. (b)(2), as added by Stats. 1976, ch. 1139, § 281.8, p. 5152.)
The Board’s ability to defer a subsequent parole hearing for a lengthy period of time also increases the possibility that, as a practical matter, the denial of parole may result in the prisoner serving a term of imprisonment disproportionate to his offense. However, the Board does not fix a prisoner’s “base term” until after he or she is found suitable for release, and, as this case demonstrates, judicial review of the denial of a parole date is conventionally limited to inquiring whether it is supported by “some evidence.” As a result, most prisoners, the vast majority of whom are unrepresented by counsel in judicial proceedings, are unable to successfully challenge the denial of parole
The difficulty in reconciling the discretion inherent in any indeterminate sentencing with the limits imposed by the principle of proportionality is not a new problem. Morganti’s constitutional claim is similar in some respects to that addressed in In re Minnis (1972)
The problem in conducting judicial review of the parole authority’s term-fixing practices was discussed in two subsequent cases: People v. Wingo (1975)
The ultimate solution to the problems caused by the Adult Authority’s practices presented in Minnis, Wingo, Romo and like cases was fashioned by the Supreme Court in Rodriguez, supra,
The judicial concern in Rodriguez was that the Adult Authority was not complying with the legislative intention that it fix terms within the statutory range prescribed by the ISL “that aré not disproportionate to the culpability of the individual offender.” (Rodriguez, supra,
The solution decided upon by the Rodriguez court was to require the Adult Authority to fix the length of a prisoner’s sentence, i.e., the “primary term,” shortly after he or she entered prison, and to later, by granting parole, reduce the primary term in “recognition [of] a prisoner’s good conduct in prison, his efforts toward rehabilitation, and his readiness to lead a crime-free life in society.” (Rodriguez, supra,
The Rodriguez court encouraged the Adult Authority to fix prisoners’ primary terms promptly, and ensured inmates would be able to obtain review even if it did not, by announcing that, in the future, for purposes of assessing the constitutionality of an inmate’s term, “the court will deem it to have been fixed at the maximum if the Authority does not act promptly to fix the primary term of a prisoner committed to the Department of Corrections to serve an indeterminate sentence.” (Rodriguez, supra,
The Rodriguez analysis is directly relevant to the Board’s administration of the present parole system, because the Board’s regulations reinstate the very practice condemned in Rodriguez. As the Supreme Court noted in Dannenberg, supra,
Morganti’s situation provides a perfect example of the manner in which the Board’s present practice, like that of the Adult Authority in Rodriguez, operates to undermine the constitutional principle of proportionality. Morganti was convicted of second degree murder in June 1993. If the Board’s denial of his request for parole in 2010 and deferral of his next parole hearing to 2013 were allowed to stand, Morganti would at his next hearing have served 20 years. However, as explained in the margin below, 20 years is longer than the maximum number of years in the triad of sentences applicable to Morganti’s “base crime,” second degree murder.
Though the Board regulation pertaining to term fixing directs a practice materially the same as that condemned in Rodriguez, the Dannenberg majority distinguished it on the grounds that section 3041 “partially combined the term-setting and parole functions Rodriguez had described as separate under prior law” (Dannenberg, supra,
However, the issue germane to Morganti’s request for discovery and an evidentiary hearing is not uniformity or the “comparative equality” of sentences, a matter governed by statute, but the proportionality of the punishment imposed on him by the denial of a release date, a matter governed not by statute but by the federal and state Constitutions. Although
The point of the foregoing discussion, and indeed of this opinion, is that, because it permits the Board to defer the fixing of the “base term” until after a prisoner is found suitable for release—on the basis of the public safety provisions of section 3041, subdivision (b), which are unrelated to and potentially conflict with the principle of proportionality—Dannenberg heightens judicial responsibility to ensure that “the overriding statutory concern for public safety,” which “trumps” the statutory interest in uniform sentences (Dannenberg, supra,
Morganti’s request for discovery and an evidentiary hearing asks us to discharge this judicial responsibility. What he seeks is an opportunity to persuade the trial court that the Board’s systematic denial of parole to life prisoners is not based on individualized inquiry, as required, but on the basis of a policy that violates due process and does not take proportionality into account, a practice that regularly results in life prisoners like him serving periods of confinement disproportionate to their offenses. Basically, like the petitioner in Rodriguez, Morganti is saying that section 3041 “is not now being administered in a manner which offers assurance that persons subject thereto will have their terms fixed at a number of years proportionate to their individual culpability [citation.]” (Rodriguez, supra,
On April 16, 2012, the opinion was modified to read as printed above.
All subsequent statutory references are to the Penal Code unless otherwise indicated.
On July 1, 1977, the ISL was repealed and the determinate sentence law (DSL) (§ 1170 et seq.) became effective. (Stats. 1976, ch. 1139, § 273, p. 5140.)
The explanation for such a significant number of stipulations is noted, post, at page 937, footnote 10.
The attorney who authenticated the statistics stated in a declaration submitted under penalty of perjury that he received them from the Board, apparently pursuant to a stipulation, in a writ proceeding in Marin County Superior Court (In re Rutherford, case No. SC135399A), in which he assisted in the representation of a class of life prisoners claiming that their parole hearings were untimely pursuant to sections 3041 and 3041.5. That litigation ultimately settled.
This study notes that “among the 860 murderers paroled by the Board since 1995, only five individuals have returned to jail or returned to the California Department of Corrections and Rehabilitation[] for new felonies since being released, and none of them recidivated for life-term crimes. This figure represents a lower than one percent recidivism rate, as compared to the state’s overall inmate population recommitment rate to state prison for new crimes of 48.7 percent.” (Life in Limbo, supra, at p. 17, fns. omitted.)
A recent study of the parole decisions of the Board and reversals of Board grants of parole release dates by Governors observes that Governor Davis’s reversals of Board grants of parole constituted “a virtual nullification of the law.” (Life in Limbo, supra, at p. 13.)
The Adult Authority was abolished in 1976 and replaced by the Board of Prison Terms, now known as the Board of Parole Hearings. (§ 5078.)
The majority of such offenders, who are punishable with life imprisonment with the possibility of parole, are those convicted of murder in the first or second degree (§ 190). Other offenses that may be so punishable are kidnapping for ransom, when the victim does not die, does not suffer bodily harm, and was not intentionally confined in a manner that exposed the victim to a substantial likelihood of death (§ 209, subd. (a)); kidnapping for robbery or certain sexual crimes (§ 209, subd. (b)); train wrecking if no one dies as a result of the defendant’s act (§ 219); willful and malicious explosion of a destructive device which causes mayhem or great bodily injury to any person (§ 18755, subd. (b)); attempted willful, deliberate and premeditated murder (as defined in § 189), provided that the fact that the murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact (§ 664, subd. (a); see § 664, subds. (e), (f) (if victim of the attempt is a designated employee of a law enforcement agency); and aggravated mayhem (§ 205). (5 Cal. Criminal Defense Practice: Sentencing and Probation Posttrial Remedies (2011) § 91.101, pp. 91-368 to 91-370 (rel. 68-12/2011).)
The following sex offenses are also subject to an enhancement of life with the possibility of parole: rape or spousal rape by force, violence, duress, menace, or fear of immediate and unlawful bodily injury (§§ 261, subd. (a)(2), (6), 262, subd. (a)(1), (4)); rape, spousal rape, or sexual penetration, in concert, by force or violence (§§ 261, 262, 264.1); lewd or lascivious act on a child under age 14 or on a dependent person (§ 288, subds. (a), (b)); penetration by a foreign object, by force, violence, duress, menace, or fear of immediate and unlawful bodily injury (§ 289, subds. (a), (k)); sodomy (§ 286, subds. (c)(2), (3), (d); oral copulation (§ 288a, subds. (c)(2), (3), (d)); and continuous sexual abuse of a child (§§ 288.5, 667.61, subd. (c)(9)). (5 Cal. Criminal Defense Practice: Sentencing and Probation Posttrial Remedies, supra, § 91.102, pp. 91-370 to 91-372.1 (rel. 68-12/2011).)
In 1982, section 3041.5 was amended to allow the Board to meet with a prisoner every two years instead of annually. (Former § 3041.5, subd. (b)(2)(A), as amended by Stats. 1982, ch. 1435, § 1, p. 5474.)
This is why a growing number of life prisoners now stipulate to unsuitability or waive the right to a parole hearing. As has been noted, “If an inmate anticipates a high probability of denial of parole at a hearing, s/he often chooses to cancel the hearing as a formal denial by the Board could greatly delay his or her entitlement to a subsequent hearing.” (Life in Limbo, supra, at p. 11.) Board regulations also promulgated in 2008 provide inmates the right to waive a hearing without stipulating to unsuitability. (Cal. Code Regs., tit. 15, § 2253, subd. (b).)
As noted in the majority opinion (maj. opn., ante, p. 914, fn. 4), constitutional challenges to this amendment under the ex post facto clauses of the state and federal constitutions are currently pending before the Supreme Court.
The matrix of base terms for second degree murder—which specifies a range of sentence triads ranging from 15,16, or 17 years at the low end to 19, 20, or 21 years at the high end—is biaxial. The factors included in the first axis all relate to the manner in which the homicide was committed—i.e., whether it was committed (1) indirectly (“e.g., shock producing heart attack, a crime partner actually did the killing”); (2) directly or by the victim (“e.g., victim initiated struggle or had goaded the prisoner”); or (3) death resulted from severe trauma (“e.g., beating, clubbing, stabbing, strangulation, suffocation, burning, multiple wounds inflicted with weapon not resulting in immediate death or actions calculated to induce terror in the victim”). The factors included in the remaining axes all relate to the relationship between the prisoner and his victim; that is, whether the victim (1) “was accomplice or otherwise implicated in a criminal act with the prisoner during which or as a result of which the death occurred”; or (2) “was involved in a personal relationship with prisoner . . . which contributed to the motivation for the act resulting in death”; or (3) “had little or no personal relationship with prisoner or motivation for act resulting in death was related to the accomplishment of another crime.” (Cal. Code Regs., tit. 15, § 2403, subd. (c).)
Under the regulation discussed in the preceding footnote, the fact that Morganti’s homicide inflicted “severe. trauma” on his victim exposes him to three possible base terms ranging from 17, 18, or 19 years to 19, 20 or 21 years; the fact that he and his victim were crime partners limits him to the lowest of the three, which provides for a maximum term of 19 years.
The Dannenberg majority reached this conclusion partly because in 2005 the number of inmates indeterminately sentenced was “but a fraction” of the total prison population, which “diminish[ed] the possibility that the Board’s refusal, under section 3041, subdivision (b), to set parole release dates in individual cases will result in the de facto imposition of constitutionally excessive punishment, or will overwhelm the courts’ ability to assess claims of constitutional disproportionality.” (Dannenberg, supra,
By 2009, the last year for which reliable statistics are available, the number of indeterminately sentenced prisoners in California had grown to 34,160, about one-fifth of the prison population. (Nellis & King, No Exit: The Expanding Use of Life Sentences in America (The Sentencing Project, July 2009) p. 3.) After the reduction in the size of the nonindeterminately sentenced prison population necessary to comply with the directive of the Supreme Court in Brown v. Plata (2011)