Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. 75735.
ELIA, J.
In 1980, Stephen Samble (Samble), who is a California state prison inmate, shot and killed Richard Caccamo. He pleaded guilty to first-degree murder. As a result, Samble was sentenced to an indeterminate term of 25 years to life. His minimum eligible parole date was February 14, 1995, over 12 years ago. Appellant, the acting warden of the training facility where Samble is incarcerated, appeals from an order of the Santa Clara County Superior Court granting habeas relief to Samble.
This is the second time this case has come before this court. On January 8, 2007, this court took judicial notice of the record in case number H028334 (Samble I).
Although a habeas petition is generally "directed to the person having custody of or restraining the person on whose behalf the application is made" (Pen. Code, § 1477), Samble challenged the actions of the Board of Prison Terms (now Board of Parole Hearings, Gov. Code, § 12838.4). Accordingly, we refer to appellant as the Board.
Previously, on March 18, 2003, Samble went before the Board for his fourth parole suitability hearing. After the hearing, the Board denied Samble parole. Thereafter, Samble filed a petition for a writ of habeas corpus in the Santa Clara County Superior Court, challenging the Board's decision. The superior court granted the petition.
The Board concluded, "the prisoner is not yet suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison." In so concluding, the Board relied on the following factors. "The offense was carried [out] in an especially violent and cold hearted manner. The offense was carried out in a dispassionate manner. The offense was carried out in a manner that demonstrates an exceptionally callous disregard for a human being -- human suffering. The motive for the crime was inexplicable or very trivial in relationship to the offense that was committed." The Board noted that the basis for this conclusion was "drawn from the Statement of Facts wherein officers discovered the victim's body, Mr. Caccamo . . . in a mountainous area."
Subsequently, on January 12, 2005, A. P. Kane, Warden, Correctional Training Facility Soledad filed a notice of appeal. On February 21, 2006, this court affirmed the superior court's order granting Samble's petition for habeas corpus, but ordered the superior court to modify its order in remanding the matter to the Board.
Specifically, this court made the following disposition. "The case is remanded to the trial court to modify its order granting Samble's petition for habeas corpus and remanding the matter to the Board to reconsider its decision and to conduct a new hearing to reconsider Samble's suitability for parole, using, without restriction, the factors deemed appropriate by the relevant statutes and regulations and in accordance with the requirements of due process. As so modified, the order is affirmed."
On May 3, 2006, the Board held another hearing. Again, the Board denied Samble parole. On September 1, 2006, Samble filed a petition for writ of habeas corpus in superior court. The superior court issued an order to show cause on September 12, 2006. After the parties filed all the pleadings in the case, on November 22, 2006, Judge Condron granted the writ of habeas corpus. Judge Condron ordered the Board to set a date within five days for a new hearing to be held within 30 days at which the Board "may not invoke unsuitability factor 2402(c)(1), the commitment offense itself, as grounds for denying parole on this record."
Between the March 18, 2003 hearing and the May 3, 2006 hearing, the Board held another parole consideration hearing. Again, the Board found Samble unsuitable for parole because "the offense was carried out in a[n] especially cruel and callous manner."
On December 8, 2006, the Board filed a timely notice of appeal. On appeal, the Board frames the issues as follows. "1. The California Supreme Court has established that the some evidence standard applies when reviewing the Board's parole decisions because the Board enjoys great and almost unlimited discretion in this regard. Here the record contains some evidence to support the Board's decision that Samble was not yet suitable for parole. Did the superior court then err as a matter of law in granting the petition? [¶] 2. In light of the potential threat to public safety upon paroling an inmate and the subjective, predictive process of assessing the inmate's risk for future antisocial acts, both the statutes and regulations require that the Board consider all relevant, reliable information. Did the superior court then err as a matter of law in limiting what the Board may consider in Samble's future parole consideration hearings?"
On December 15, 2006, this court issued a temporary stay of the superior court's order. On May 10, 2007, this court granted the Board's petition for writ of supersedeas staying the enforcement of the superior court's order pending the outcome of this appeal.
For the following reasons, we agree with the superior court that the Board's decision cannot stand and that Samble is entitled to writ relief. Furthermore, we agree with the superior court that on this record there is no evidence that Samble poses an unreasonable risk of danger to society if released on parole. Accordingly, we answer both of the Board's questions in the negative.
Samble's Social and Criminal History
Since little has changed from the last time this case was here on appeal, we take the facts of Samble's social and criminal history and the facts of the commitment offense from this court's opinion in case number H028334.
Samble was born on September 13, 1952. He never married, but he has two adult daughters. Samble graduated from high school in San Mateo County and then took some classes at De Anza College. He worked in "all sorts of jobs," including truck driver and gas station mechanic. He was a ceramic tile setter for six years and a maintenance supervisor for seven years.
Apart from a brother "chopping trees down in a game reserve," an act that led to criminal charges that were later dismissed, no one in his family had a criminal record.
Samble's juvenile record consists of two misdemeanor convictions and a felony conviction for possession of drugs, for which he received probation. In addition, Samble was arrested for shoplifting.
Samble experimented with a wide range of illegal substances. During the first six years of his life term, he continued to use drugs. However, he claimed to have stopped on his birthday in 1986, but did not start attending Alcoholics Anonymous (AA) until 1993, when a Board Deputy Commissioner suggested that he attend this program. Samble stopped going to AA in 2000, but returned to the program in 2002. According to his Alcoholics Anonymous/Narcotics Anonymous (AA/NA) sponsor at the facility, Samble had "positively participated and shown his ability to understand and comprehend all aspects of the Twelve Step Programs, through his own self-improvement techniques." Further, Samble was "to be lauded for his continued participation and positive contributions to Alcoholics Anonymous/Narcotics Anonymous . . . ."
Samble's 1989 psychological evaluation listed a diagnosis of poly substance dependence in institutional remission and a diagnosis of adult anti-social behavior. Samble's 2000 psychological evaluation diagnosed him with cocaine dependence in remission and adult anti-social behavior, improved. In 2002, Samble was diagnosed with cocaine dependence in sustained full remission in a controlled environment. Samble's psychological evaluators have recognized that continued sobriety and abstinence from addictive drugs would be a critical factor in ensuring Samble's successful reintegration into society if paroled.
Samble's 2005 psychological evaluation found that Samble had "never received a single disciplinary for violent behavior during his 25 years of incarceration within CDC. He seems to have matured greatly during his incarceration, and his completion of numerous self-help groups appears to have greatly increased his insight and control over his behavior as related to the instant crime. [¶] Therefore, in light of these factors, his violence potential is considered to be below average relative to this level II inmate population. [¶] If released to the community, his violence potential is considered no more than the average parolee in the community. [¶] Cocaine abuse is a risk factor which could be a precursor to violence for this individual."
Since Samble pleaded guilty, the facts are taken from the original probation report in this case.
In 1980, Samble incurred a drug related debt of several hundred dollars. Sometime before April 1, 1980, Richard Caccamo came to Samble's apartment and demanded the $650 that Samble owed to him. Caccamo threatened to put Samble in the hospital if he did not pay his debt. In order to satisfy Samble's debt, Samble arranged a meeting for Caccamo to sell 20 pounds of marijuana to a third person. They were all supposed to meet at a parking lot at 7:30 p.m. on April 1. The purchaser never arrived.
According to the probation officer's report in Samble's case, the amount owed was $650. However, at Samble's 1997 parole board hearing, he recalled that the amount was $200.
Samble and Caccamo ended up traveling in Caccamo's truck through a wooded mountainous area outside of town. Three or four days earlier, Samble had borrowed a double action .357 Magnum from a friend. He had the gun with him in the truck. When Caccamo and Samble were in a secluded portion of the mountain road, Samble shot Caccamo fatally in the face. Then, he shot the lock off Caccamo's toolbox, and took the 20 pounds of marijuana. The truck, with Caccamo's body, was discovered the next day.
The probation report states that Samble "lured" Caccamo to a mountainous area on Kittridge Road near Saratoga. Furthermore, the report notes that after the killing Samble "pushed the vehicle off the road and down the side of the hill." Samble has consistently denied that was what happened.
Sixteen days later Samble was arrested in his hotel room. He was found in possession of a quantity of marijuana seeds and a piece of paper listing names and dollar amounts. A large plastic bag of marijuana and a package of sandwich bags were found in his car.
According to Samble, he pleaded guilty to first-degree murder to avoid the death penalty. He claims, however, that the gun went off accidentally when Caccamo pulled his jacket sleeve. The first two times Samble appeared before the Board, he claimed that he planned to rob Caccamo so that he could sell CacSanta Clara County Super. Ct. No. 75735 camo's marijuana and pay the debt, but he did not plan to kill Caccamo.
The 2006 Parole Hearing
At the 2006 hearing, the Board reviewed Samble's commitment offense, his prior criminal and social history, the progress he had made since his commitment, his counselor's reports and parole plans. After hearing from Deputy District Attorney Rico, who argued that Samble had not adequately accepted responsibility for the crime and lacked sufficient insight into what caused him to commit the offense, from Samble's attorney and from Samble, the Board retired to deliberate.
Shortly thereafter, the Board returned to ask Samble some more questions. Samble's counsel asked the Board to tell her what the questions were and requested a recess so that she could talk to Samble. The Board wanted to know if Samble had any evidence that he had a sponsor when he left prison and whether Samble attempted to call somebody to get medical help for the victim to prevent him from dying. After a brief recess, Samble told the Board that he was aware that AA meetings were offered in Campbell and he would "get into that." The Board asked Samble if he had "documentation to support that?" Samble replied that he did not know he needed to bring anything with him, but if the Board wanted something he would get "a letter." The Board continued to press Samble regarding his plans for AA/NA if he was released. At one point, the Board said to Samble "-- but you never thought about that; how to support yourself to keep yourself drug free when you're out on the streets" Samble replied, "I didn't think I needed it, because I don't need drugs in here. Drugs in here are easier to get than they are on the street." The Board asked Samble if he would continue with AA/NA. Samble replied, "AA, I will." Samble's attorney interrupted the exchange between Samble and the Board to ask Samble if he had thought about AA meetings because he knew about getting a sponsor. Samble replied that he had thought about AA on the street, but did not know that he needed "this." The Board asked Samble to clarify what he was saying asking him, "So you're actually saying you . . . don't need to have any support, because you're not using drugs in the institution. That's what you just told me." Samble replied that he "didn't mean that. Okay, I don't need - - Okay, I am going to go out. Okay, I said - - I think I said this once before. I would go to an AA class out on the street. Okay, I'm not going to deny that. I'll go to it if that's what - - that's what you want. [¶] I'll go to it. I don't have a drug problem though. Okay. Everybody, just because we're in here, you're saying we have drug problems." The Board continued to press Samble by asking him if he was saying that his addiction was no longer present. Samble's counsel interjected pointing out "substance abuse would be a factor" but Samble would be required "to go to AA and be tested." Again, the Board pressed Samble to explain his statement stating that he was telling the Board that he no longer had an addiction. Samble replied,"I've done no drugs in 20 years. [¶] That's what I'm trying to say."
Finally, the Board moved on to the second question concerning the commitment offense. Samble's counsel refused to allow Samble to answer the question.
The Board rendered its decision to deny Samble parole concluding that Samble was "not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison." In denying parole, the Board relied on the "crime and determined that it was done in a calculated manner, such as an execution style . . . as supported by the following facts. The victim was shot in the face after being taken to a remote location under the premise that . . . a drug deal was going to take place with a third party. And that after the victim was shot, the inmate did nothing to assist the victim, but instead shot the lock off of a lock box, where there was 20 pounds of marijuana . . . being stored. Took the marijuana and left the victim in the vehicle and departed the area. The autopsy report revealed the cause of death was a gunshot wound to the head with an entrance to the right face. Bullet fragments recovered on the left brain. There were powder strippings [sic] S-T-R-I-P-P-I-N [sic] on the right side of the face, which in our opinion, indicated that the shots had been fired --. . . [¶] Which indicated that the shots were fired at close range. The victim was vulnerable because he was a friend . . . the Board also finds that it was very difficult for U.S. to determine whether you had remorse or insight into your – into the commitment offense due -- because of the stories that keep changing." The decision went on to say that Samble had "failed to profit from society's previous attempts to correct" his criminality. The Board was concerned that Samble had not provided the Board with the name of his sponsor or "make any attempts to determine locations of NA or AA meetings if [Samble] were given a date. [Samble's] reason was that no one told [him] and it was not required --that no one told [him] that it was required and that [Samble was] no longer addicted because [he had] been free for 19 years. The Board considered this comment as a contradiction to the principles of the NA and AA Twelve Step Program . . . ." The Board noted that the district attorney indicated his opposition to parole. Finally, the Board commended Samble for remaining disciplinary free, his excellent work reports and completion of a vocation. The Board noted, however, that these positive aspects of Samble's behavior did not outweigh the factors of unsuitability.
The Habeas Proceeding Below
In granting Samble's petition for writ of habeas corpus the court below noted that this court's opinion in Samble I " 'show[s] no more than the premeditation and deliberation required for first degree murder.' The contrary conclusion of the Board, without any articulated basis, is also unsupported in the record." As to the other factors cited by the Board to deny parole, the court below stated that they "reflect a complete disregard of [Samble]'s excellent behavior while incarcerated and the favorable psych reports, in favor of the negative fact that the District Attorney voiced opposition." The court went on to say that the " 'some evidence rule' requires a two-step process. First, is there 'some evidence' for a finding. Second, whether there is 'some evidence' that supported finding still and currently indicates the inmate is an 'unreasonable risk.' " The court ordered the Board to set a date within five days for a new hearing to be held within 30 days. In so doing, as noted, the court precluded the Board from relying on the commitment offense as grounds for denying parole because there is "no evidence to support doing so and facts of the crime are not going to change."
Standard of Review
The California Supreme Court addressed the judicial review standard that applies to parole decisions by the Board in In re Rosenkrantz (2002) 29 Cal.4th 616 (Rosenkrantz). Our Supreme Court held that "the judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law, but that in conducting such a review, the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based on the factors specified by statute and regulation. If the decision's consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner's petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law. [Citations.]" (Id. at p. 658, italics added.)
It appears that the superior court's findings were based solely on documentary evidence. Accordingly, we independently review the record to determine if there is some evidence to support the Board's findings. (Rosenkrantz, supra, 29 Cal.4th at p. 677.)
Discussion
Essentially, the Board contends that its decision to deny Samble parole complied with due process requirements and was supported by some evidence. Accordingly, its decision must be upheld and the superior court's order must be reversed.
"One of the Board's functions is to set parole dates for prisoners serving indeterminate sentences. (Pen. Code, §§ 3040; 3041, subd. (a); 3000, subds. (b)(4) & (b)(7).) Penal Code section 3041, subdivision (b) requires the Board to 'set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.' This statute creates a conditional liberty interest for a prospective parolee. (Cf. Rosenkrantz, supra, 29 Cal.4th at p. 661; McQuillion v. Duncan (9th Cir. 2002) 306 F.3d 895, 901-902.) The Board has broad discretion, sometimes called ' " 'great' " ' and ' " 'almost unlimited,' " ' to identify and weigh the factors relevant to predicting 'by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts.' (Rosenkrantz, supra, 29 Cal.4th at p. 655.) However, 'the requirement of procedural due process embodied in the California Constitution (Cal. Const., art. I, § 7, subd. (a)) places some limitations upon the broad discretionary authority of the Board.' (Ibid.) A prisoner is entitled to 'an individualized consideration of all relevant factors.' (Ibid.)" (In re DeLuna (2005) 126 Cal.App.4th 585, 591.)
The California Supreme Court reached the issue whether there was "some evidence" supporting a parole suitability determination in In re Dannenberg (2005) 34 Cal.4th 1061, 1094-1095. Thus, the California Supreme Court implicitly indicated that due process requirements still apply to parole determinations in California.
California Code of Regulations, title 15, section 2402, subdivision (b) sets forth the manner in which suitability determinations are to be made. Section 2402, subdivision (a) states that "[r]egardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison."
Unless noted, all undesignated regulation and section references are to title 15 of the California Code of Regulations.
Section 2402, subdivision (c) identifies six nonexclusive circumstances tending to show unsuitability, the relative importance of which "is left to the judgment of the panel." One of the specified circumstances is "(1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner." Relevant here, "[t]he factors to be considered include: . . . [¶] (B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder. . . ."
The remaining circumstances are "(2) Previous Record of Violence. The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age. [¶] (3) Unstable Social History. The prisoner has a history of unstable or tumultuous relationships with others. [¶] (4) Sadistic Sexual Offenses. The prisoner has previously sexually assaulted another in a manner calculated to inflict unusual pain or fear upon the victim. [¶] (5) Psychological Factors. The prisoner has a lengthy history of severe mental problems related to the offense. [¶] (6) Institutional Behavior. The prisoner has engaged in serious misconduct in prison or jail." (Cal. Code Regs., tit, 15, § 2402, subd. (c).)
The other factors to be considered include "(A) Multiple victims were attacked, injured or killed in the same or separate incidents. . . . [¶] (C) The victim was abused, defiled or mutilated during or after the offense. [¶] (D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. [¶] (E) The motive for the crime is inexplicable or very trivial in relation to the offense." (Cal. Code Regs., tit, 15, § 2402, subd. (c).)
Section 2402, subdivision (d), identifies nine circumstances tending to show suitability for release. "Circumstances tending to indicate suitability include: [¶] (1) No Juvenile Record. The prisoner does not have a record of assaulting others as a juvenile or committing crimes with a potential of personal harm to victims. [¶] (2) Stable Social History. The prisoner has experienced reasonably stable relationships with others. [¶] (3) Signs of Remorse. The prisoner performed acts which tend to indicate the presence of remorse, such as attempting to repair the damage, seeking help for or relieving suffering of the victim, or indicating that he understands the nature and magnitude of the offense. [¶] (4) Motivation for Crime. The prisoner committed his crime as the result of significant stress in his life, especially if the stress has built over a long period of time. [¶] (5) Battered Woman Syndrome. At the time of the commission of the crime, the prisoner suffered from Battered Woman Syndrome, as defined in section 2000(b), and it appears the criminal behavior was the result of that victimization. [¶] (6) Lack of Criminal History. The prisoner lacks any significant history of violent crime. [¶] (7) Age. The prisoner's present age reduces the probability of recidivism. [¶] (8) Understanding and Plans for Future. The prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release. [¶] (9) Institutional Behavior. Institutional activities indicate an enhanced ability to function within the law upon release."
The precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Board. However, the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary and capricious. (Rosenkrantz, supra, 29 Cal.4th at pp. 655, 677.) Furthermore, in applying the "some evidence" standard, we are precluded from independently resolving conflicts in the evidence, determining the weight to be given the evidence, or deciding the manner in which the specified factors relevant to parole suitability are to be considered and balanced, because these are matters exclusively within the discretion of the Board. Indeed, " '[i]t is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole.' " (Id. at p. 677.) Nevertheless, the inferences that the Board draws from the evidence must be supportable. (In re Dannenberg, supra, 34 Cal.4th at p. 1095, fn. 16.)
When the Board considers whether an inmate is suitable for release on parole, the "overarching consideration" in determining whether to grant parole "is 'public safety.' " (In re Scott (2005) 133 Cal.App.4th 573, 591.)
In Rosenkrantz, the Supreme Court explained that the denial of parole can be based upon the nature of the commitment offense. (Rosenkrantz, supra, 29 Cal.4th at p. 683.) Nevertheless, the Rosenkrantz court cautioned, "a denial of parole based upon the nature of the offense alone might rise to the level of a due process violation--for example where no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction for that offense. Denial of parole under these circumstances would be inconsistent with the statutory requirement that a parole date normally shall be set 'in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public. . . .' [Citation.] 'The Board's authority to make an exception [to the requirement of setting a parole date] based on the gravity of a life term inmate's current or past offenses should not operate so as to swallow the rule that parole is "normally" to be granted. Otherwise, the Board's case-by-case rulings would destroy the proportionality contemplated by Penal Code section 3041, subdivision (a), and also by the murder statutes, which provide distinct terms of life without possibility of parole, 25 years to life, and 15 years to life for various degrees and kinds of murder. (Pen.Code, § 190 et seq.) [¶] Therefore, a life term offense or any other offenses underlying an indeterminate sentence must be particularly egregious to justify the denial of a parole date.' " (Id. at p. 683, italics added.)
In Dannenberg, supra, 34 Cal.4th 1061, the Supreme Court clarified when a commitment is "particularly egregious" under Rosenkrantz. The Dannenberg court explained: "Our discussion [in Rosenkrantz ], including our use of the phrase 'particularly egregious,' conveyed only that the violence or viciousness of the inmate's crime must be more than minimally necessary to convict him of the offense for which he is confined." (Id. at p. 1095.)
As noted, the Board relied on the commitment offense, determining that it was done in a calculated manner, such as an execution-style murder, to deny Samble parole. In addition, the Board found that it was very difficult to determine whether Samble had shown remorse or insight into why he committed the murder and that Samble had failed to profit from society's previous attempts to correct his criminality. The Board was concerned that Samble had not provided the Board with the name of his sponsor or made any attempts to determine the locations of NA or AA meetings.
Accordingly, the main issue before this court is whether the Board's finding that the commitment offense was an "execution-style murder" is properly characterized as such and, if so, whether this commitment offense given its nature and the passage of time as well as the other reasons the Board gave for denying parole provide "some evidence" supporting a conclusion the release of Samble on parole would represent an "unreasonable risk" of danger to public safety. (In re Lee (2006) 143 Cal.App.4th 1400, 1408; In re De Luna, supra, 126 Cal.App.4th at p. 598: "In reviewing a decision denying parole, we first determine whether some evidence supports each of the factors stated by the Board to justify the denial of parole. [Citations.] If one or more of the factors lacks evidentiary support, the next questions are whether the Board would have denied parole based upon the supported factors and whether this result 'satisfies the requirements of due process of law' because the factors for which there is some evidence 'constitute a sufficient basis supporting the . . . discretionary decision to deny parole.' [Citation.].")
The Board argues that the murder was execution-style because the victim was lured to a remote area and was shot in the face at close range as indicated by the powder stippling on the victim's face.
The regulation upon which the Board relied provides one example of when a crime is especially heinous, atrocious or cruel. That is, when it is carried out in a dispassionate and calculated manner, such as "an execution-style murder." (§ 2042, subd. (c)(1)(B).) Nowhere in the California Code of Regulations do we find a definition of what constitutes an execution-style murder.
Accordingly, we turn to case law to determine if Samble's commitment offense can be described as an "execution-style murder." An analysis of these cases shows that it is the manner of the killing that is the guiding factor.
In People v. Bloyd (1987) 43 Cal.3d 333, the defendant shot to death Martha Jones and her father William North in the early morning hours of April 27, 1981. The bodies were found in the hallway of a motor home. (Id. at pp. 340-341.) North's body was slumped forward with his legs bent under his body. His head was down on the threshold of the bathroom. There were vertical gouge marks running downward on the wall heater next to North's head. The marks or striations, one of which tested positive for lead, ran downward from 17 to 14 inches from the floor. There was blood below the striations and near North's head on the wall heater, and there was blood, later determined to be his, on his slacks just below the left knee. His body was between Martha's body and the door of the master bedroom. Jones's body lay outside the door of the other bedroom, which was next to the living room. Each victim had been shot in the head. The forensic pathologist testified that Jones (46 years old, 5 feet 8 inches tall, and 107 pounds) died from a pointblank gunshot wound to the head that entered the brain. The wound started at the left eye and went across her head from left to right. The bullet went through the nose and right eye and came out through the right side of the skull. There was no physical evidence of a struggle, no bruises on wrists or on other parts of her body. The entry wound in North's head was in the back, to the top and left. The track went down, back to front, and left to right, through the mid-portion of the brain, and exited just below the ear lobe on the right side. The size of the hole suggested a large caliber weapon such as a .357 magnum, fired within a foot of the head. The pathologist concluded from North's size and the position of his body, combined with the closeness of the shot, the angle of the bullet track, and the blood going forward from the wound toward the wall heater, that North could not have been standing when the wound was inflicted unless the killer held the gun above the victim's head and pulled the trigger with a thumb. The doctor opined that the killer was standing and North's head was down low as if kneeling. (Id. at pp. 341-342.)
In rejecting defendant's challenge to the sufficiency of the evidence of premeditation and deliberation to support a verdict of first-degree murder, the Supreme Court concluded that the "manner of killing . . . was very strong evidence of deliberation and premeditation: The evidence described actions that were cold and calculated-execution-style killings, shots to the head while Martha was lying on her back and North was kneeling. Martha had been shot pointblank, while North was shot by a standing killer from a distance of one foot." (People v. Bloyd, supra, 43 Cal.3d at p. 348, italics added.)
In People v. Walker (1988) 47 Cal.3d 605, during commission of a liquor store robbery, the defendant shot three people, including a 15-year-old boy. Present in the liquor store were co-owner Jerry Romero and two young employees, Joe Vasquez and Andy Zamora. During the robbery the defendant said that he was " 'not going to leave any witnesses.' " (Id. at. pp. 618-619.) At one point, defendant walked toward Vasquez and Zamora and ordered them to "Get on your knees." They complied. Romero testified he heard the boys crying and pleading for their lives. Three shots were then fired in rapid succession. Joe Vasquez died of a .32 caliber gunshot wound, which entered his forehead and exited through the back of his head. Andy Zamora was also shot in the head but survived. Romero was shot in the abdomen; the bullet ricocheted off his hip and traveled through several major organs, lodging in his chest. (People v. Walker, supra, 47 Cal.3d at p. 619.) In rejecting Walker's instructional error challenge, the Supreme Court noted that as "the victims pleaded for their lives three shots were fired off in rapid succession; Vasquez and Zamora were each shot through the front of the head. The execution-style shooting clearly evinces an intent to kill." (Id. at p. 632.)
In People v. Stankewitz (1990) 51 Cal.3d 72, the Supreme Court described the murder of a carjacking victim as "execution-style" where a ballistics expert confirmed that the victim had been shot from a distance of six to 12 inches, the coroner who performed the autopsy confirmed that the victim had been killed by a single gunshot wound to the neck, severing the spinal cord and causing immediate paralysis and death and a witness testified that the victim, who had been forced to travel with the carjackers, was facing away from the car when the defendant raised a gun in his left hand, braced it with his right hand, and shot her once in the head from a distance of about one foot. (Id. at pp. 83-84.)
In People v. Lewis (1990) 50 Cal.3d 262, the Supreme Court described a murder as execution-style where the victim was found in his home with his hands and legs tied together with neckties; yellow toilet paper was stuffed in his mouth and he was gagged with a necktie. There were three stab wounds in the victim's chest and a bullet hole in his back. Two pillows were near the body, one of which had a contact bullet hole in it. Two knives were lying next to the body. The stab wounds were later determined to have been the cause of death. (Id. at pp. 272, 285.)
In People v. Hawkins (1995) 10 Cal.4th 920, the unrefuted testimony of a forensic expert showed that the victim was shot twice, once in the back of the head near the base of the skull and once in the back of the neck. According to the pathologist's examination of the burned and unburned gunpowder residues found on the victim's body, one of the shots was fired from a close range, between three and 12 inches away. The angle of entry and the downward trajectory of the bullets through the victim's body suggested that the position of the gun was somewhere above his head. (Id. at p. 956.) The Supreme Court surmised that as the defendant was several inches shorter than the victim, the victim may have been crouching or kneeling at the time the shots were fired. Accordingly, the Supreme Court concluded, "[t]he manner of the killing clearly suggest[ed] an execution-style murder." (Ibid.)
Overruled on another ground in People v. Lasko (2000) 23 Cal.4th 101, 109-110.
In People v. Hawkins, supra, 10 Cal.4th 920, the Supreme Court concluded that an execution-style killing may be committed with such calculation that the manner of killing will support a jury finding of premeditation and deliberation, despite little or no evidence of planning and motive. (Id. at p. 957.)
In People v. Williams (1997) 16 Cal.4th 635, the Supreme Court described multiple murders as "execution-style" where three of the murder victims were shot in their beds. One victim had three gunshot wounds to the head and neck, while two others each died from a single gunshot wound to the head. (Id. at p. 649.)
In In re Lowe (2005) 130 Cal.App.4th 1405, this court described a similar murder as execution-style where the defendant entered his victim's bedroom in the middle of the night while he was asleep, unsuspecting, and in a special relationship of confidence and trust with his killer, " 'shot him five times in the head and chest . . . .' "(Id. at p. 1414.)
In People v. Ramos (1997) 15 Cal.4th 1133, the defendant and a co-defendant killed Katharyn Parrott and Kevin Pickrell, two workers at a Taco Bell restaurant in Santa Ana, California. It was just before the restaurant was due to close when the co-defendant placed a large food order. While Pickrell was preparing the order, defendant entered. Pickrell recognized defendant as a coworker employed at the Taco Bell as a janitor. Defendant asked to check his schedule, and Pickrell admitted him behind the front counter. Approximately a minute later, defendant emerged from the back carrying a rifle partially covered with a jacket. Thinking it was a joke, Pickrell began laughing; but defendant informed him that he was not kidding. Defendant told his co-defendant to hop over the front counter and then directed both Pickrell and Parrott inside the restaurant's walk-in refrigerator. Defendant entered and left the refrigerator several times. He asked about the keys to the safe and repeatedly told Pickrell and Parrott to keep quiet. When defendant entered for the last time, he told the two employees to kneel on the floor and remove their hats. He had Parrott place a rag in her mouth. Pickrell testified that the next thing he remembered was feeling Parrott fall toward him. Almost simultaneously, he felt a sharp blow to the back of his head. He fell over; another blow followed. He stayed on the floor until he could hear no movement in the building. When he got up, he discovered Parrott's body next to him and called the police. Parrott was dead when the police arrived. The autopsy performed on Parrott's body indicated she had died of a gunshot wound to the head. The examination also disclosed two lacerations to the back of the head, inflicted at or near the time of death, most probably caused by a blow from a blunt, heavy object. (Id. at p. 1148.)
In rejecting defendant's challenge to the trial court's admission of two photos of the crime scene and two of Parrott's head, the Supreme Court found that the trial court properly found the photographs relevant because they depicted the " 'circumstances of the crime.' " (People v. Ramos, supra, 15 Cal.4th at p. 1170.) According to the Supreme Court, "[t]hese circumstances included the execution-style form of the killing and the manner in which defendant inflicted victim Parrott's wounds, both fatal and nonfatal." (Ibid.)
In People v. Taylor (2001) 26 Cal.4th 1155, defendant Taylor, together with two co-defendants, burgled, robbed, shot and killed Ryoko Hanano and attempted to kill her husband Kazumi Hanano, leaving him a quadriplegic. (Id. at p. 1163.) The victims had advertised their automobile for sale. After a co-defendant test-drove the automobile, while the victims were engaged in paperwork to complete the sale, Taylor directed one co-defendant to leave the scene. Then, Taylor and another co-defendant each displayed handguns. They handcuffed the Hananos together and took them into their bedroom. Taylor pulled the mattress partly off the bed, searching for hidden jewelry or money, then forced the victims to kneel face down with their heads on the mattress. After inquiring about money in the house, Taylor pulled the mattress over the Hananos' heads, telling the co-defendant to search for twine to bind the victims' legs. Someone then shot each victim. The victims' son found his parents a few hours later, still handcuffed and kneeling next to the bed. (Id. at p. 1164.) In response to Taylor's challenge to his sentence of death as disproportionate in light of his crimes and background, the Supreme Court concluded that for "defendant's brutal execution-style murder and attempted murder" the defendant had failed to convince the court that a sentence of death was a grossly disproportionate penalty. (Id. at p. 1177.)
There is no indication exactly where the bullets entered the victims.
In People v. Stewart (2004) 33 Cal.4th 425, defendant Stewart shot to death his mother and his stepfather, along with Murray Lucas, a boarder who was living with them. (Id. at p. 432.) The police found the body of Murray Lucas face down on the floor of a bedroom near the kitchen. He had been shot in the head. (Id. at p. 433.) Gunpowder "stippling"-small fragments of gunpowder caused by the near proximity of a discharged firearm-was evident on Lucas's single wound. Based upon the characteristics of the firearm and the stippling on Lucas's wound, the forensic pathologist estimated that the stippled shot to Lucas was fired from a distance of three feet or less. (Id. at pp. 433-434.) On appeal, Stewart asserted that although the record supported findings of premeditation and deliberation with respect to the killings of his mother and stepfather, it did not reflect sufficient evidence of premeditation and deliberation with respect to the killing of Murray Lucas. In rejecting Stewart's argument, the Supreme Court concluded that evidence of the manner of killing and the planning activity both supported the jury's finding of premeditation and deliberation in the killing of Murray Lucas. "The killing was accomplished by a single execution-style shot fired from close range into the victim's forehead, in circumstances showing no evidence of a struggle." (Id. at p. 495, italics added.)
In People v. Robinson (2005) 37 Cal.4th 592, defendant Robinson shot Brian Berry and James White in a "Subway" store. When the police arrived at the scene at approximately 2:00 a.m. they found Berry lying dead in a pool of blood near the counter. White, a Subway employee, was found lying face down in a pool of blood behind the cash register, alive but mortally wounded. Berry had been shot twice, once in the cheek from 12 to 18 inches away and a second time while the gun was in contact with his head, just above the right ear. White had been shot with a gun that was in contact with the crown of his head when fired. A forensic pathologist testified that the trajectory of the bullet that struck White was consistent with the victim having been shot while kneeling. (Id. at pp. 600-601.) Robinson challenged the admission of expert testimony regarding the manner of the shooting of the two victims. (Id. at p. 630.) In rejecting Robinson's challenge, the Supreme Court concluded, "the challenged evidence was relevant to prove one of the prosecution's theories of the homicides-that of premeditated and deliberated murder. An execution-style shooting of a kneeling victim clearly supported that theory and was relevant to prove it." (Ibid, italics added.) The Supreme Court noted that the forensic pathologist's testimony "provided the jurors with an informed context, letting them know that, 'although the shooter might have assumed any number of positions when necessarily placing the gun perpendicular to the crown of the victim's head, the least awkward position would be that of the victim kneeling.' " (Id. at p. 631.)
Over defense objection, the forensic pathologist testified concerning the probable respective positions of the shooter and the two victims at the time of the shootings. On direct examination, he was asked to consider the height of defendant (5 feet 10 to 11 inches), the height of victim White (6 feet 1 inch), and the location and trajectory of the entry wound in White's forehead, and to consider three possible scenarios relating to that victim. First, assuming White had been standing, Dr. Rogers testified that the shooter's hand might have been positioned essentially even with and slightly above the victim's head-which would have meant that the shooter either had held the gun over his head or stood on something so as to be higher than the victim's head. Second, assuming White had been lying on the floor at the time of the shooting, the pathologist testified that, based upon the physical evidence, the shooter might have been lying on the floor or crouched next to him. Third, assuming that White had been shot while he was kneeling on the floor, the pathologist testified that shooter would have been standing next to him. (People v. Robinson, supra, 37 Cal.4th at pp. 629-630.)
In the foregoing cases not only were the victims shot at close range (mostly in the head), they were either kneeling or lying when shot (People v. Bloyd, supra, 43 Cal.3d at p. 348; People v. Walker, supra, 47 Cal.3d at p. 619; People v. Hawkins, supra, 10 Cal.4th at p. 956; People v. Williams, supra, 16 Cal.4th at p. 649; People v. Ramos, supra, 15 Cal.4th at p. 1148; People v. Robinson, supra, 37 Cal.4th at pp. 600-601), or were tied up (People v. Lewis, supra, 50 Cal.3d at p. 272, 282; People v. Taylor, supra, 26 Cal.4th at p. 1164), or shot from close range in the forehead in circumstances showing no evidence of a struggle (People v. Stewart, supra, 33 Cal.4th at p. 495), or in the back of the head while facing away from the shooter (People v. Stankewitz, supra, 51 Cal.3d at pp. 82-83). Without any disrespect to the victims of these crimes, they are the arche typical execution style killings of a conscious victim where the perpetrator kills, at close range, a victim who is under his or her complete physical control and who has been left with no way to resist or escape.
To hold otherwise we would make a mockery of the requirement that the inmate's crime be especially heinous, atrocious or cruel.
Samble's crime does not measure up to the foregoing instances of an "execution-style murder." Essentially, the Board found that the murder of Samble's victim was execution style because "the victim was shot in the face" and "the shots were fired at close range." There is nothing in the record to support the inference that the victim was under Samble's complete physical control as with a kneeling or prone victim. There is no indication of the directionality of the shot, i.e. if the bullet was fired from above the victim, or how close Samble was to the victim when he shot him. Accordingly, the Board's recitation of the facts of the crime as leading to the conclusion that this was an execution style murder lead U.S. to conclude that the Board's decision was arbitrary and capricious. As we have said before, the facts of Samble's crime show no more than the premeditation and deliberation required for first-degree murder. We reiterate that the "inmate's crime must be more than minimally necessary to convict him of the offense for which he is confined." (Dannenberg, supra, 34 Cal.4th at p. 1095.)
In Samble I we stated, "The circumstances of Samble's offense shown by the record . . . cannot reasonably be considered more aggravated or violent than the minimum necessary to sustain a conviction for first-degree murder."
Moreover, we fail to see how the Board's finding that the victim was vulnerable because he knew Samble, makes Samble unsuitable for parole. "The commitment offense can negate suitability only if circumstances of the crime reliably established by evidence in the record rationally indicate that the offender will present an unreasonable public safety risk if released from prison." (In re Tripp (2007) 150 Cal.App.4th 306, 319.) Under the Board's own regulations, the circumstances of the life crime are least serious when the victim was "a crime partner, drug dealer, etc." (§ 2403, subd. (b).)
The Board stated that it was hard for them to determine if Samble had remorse or insight into his commitment offense because he kept changing his story over the years. However, Samble's psychological evaluation repeatedly stated that Samble has expressed remorse and had good insight into his crime. Specifically Dr. Stack observed, "Inmate Samble's current level of insight and judgment are good and support a positive prediction of successful adaptation to community living." Further, Dr. Stack noted that Samble seemed "genuinely penitent for his crime, acknowledging how he had hurt both the victim and the family of the victim, stating that [the victim] did not deserve to die, and it was a mistake to have had the gun." Moreover, Dr. Stack noted that Samble had "obtained a good level of insight into the causes of this crime." Accordingly, we can only conclude that Board's decision was arbitrary, a decision in search of a reason to deny Samble parole.
"While 'failure of recollection is a common experience and innocent misrecollection is not uncommon' might be regarded as a gratuitous observation, it is nevertheless a truism . . . ." (Dodds v. Stellar (1946) 77 Cal.App.2d 411, 426.) What is more, Samble's different versions of the events are not wholly inconsistent with each other. The Board noted that at first Samble said he was going to rob the victim. Then, Samble said he was going to rob the victim and sell the marijuana in order to pay the debt he owed to the victim. Then, Samble said that he took the gun along because the victim had a reputation for being crazy and violent. Further, we fail to see how Samble's different versions of the events can lead to the conclusion that Samble poses an unreasonable risk of danger to the public if released.
The Board's next reason for denying parole was that Samble had "failed to profit from society's previous attempts to correct" his criminality. "To deny parole, the reason must relate to a defendant's continued unreasonable risk to public safety." (In re Lee, supra, 143 Cal.App.4th at p. 1414.) As this court pointed out in Samble I, the Board noted in 2003 that Samble "didn't have much of a prior criminal history." According to the 2003 Life Prisoner Evaluation Reports (LPER), "Samble has a minimal arrest history." Furthermore, Samble's 2000 Psychological Evaluation indicates that Samble's "completion of numerous self-help groups appears to have greatly increased his insight and control over his behavior as related to the instant crime." Accordingly, we conclude that there is no support in the record for the Board's conclusion that Samble has failed to profit from society's previous attempts to correct his criminality.
Finally, the Board showed concern that Samble had not shown proof of plans for attending AA/NA meetings upon his release and that the Board considered Samble's comments during the parole hearing to be "a contradiction to the principles of the NA and AA Twelve Step Program." Notwithstanding the Board's attempt to twist Samble's words, the record indicates that Samble "has been actively attending Alcoholics Anonymous/Narcotics Anonymous" and "has been a contributing member of this group since December 2002" Further, Samble "has positively participated and shown his ability to understand and comprehend all aspects of the Twelve Steps Programs, through his own self-improvement techniques." The report goes on to say that Samble is to be "lauded for his continued participation and positive contributions to Alcoholics Anonymous/
Narcotics Anonymous . . . . " Accordingly, we find no support in the record for the Board's conclusions. Furthermore, Samble did state that he knew of a program in Campbell that he could attend and offered to provide the Board with the information.
As noted, the factor overshadowing any determination of whether an inmate is suitable for parole is whether the inmate poses an unreasonable risk of danger to society if released from prison. (§ 2281, subd. (a).) Samble's most recent psychological evaluation concludes that if released to the community, Samble's violence potential is considered to be no more than the average parolee in the community. Further, Samble's correctional counselor opined that Samble would pose only "a moderate degree of risk to the public if paroled at this time." As we have said before, "the record provides no reasonable grounds to reject or even challenge, the findings and conclusions of the psychologist and counselor concerning [Samble's] dangerousness."
In conclusion, we find no evidence in the record that Samble poses an unreasonable risk to public safety even under the deferential "some evidence" standard.
We recognize as have our sister courts that "All murders represent the basest form of human behavior. Our laws, however, provide for mechanisms by which even murderers, in limited circumstances, are entitled to be paroled. The judiciary has an obligation to execute those laws." (In re Lee, supra, 143 Cal.App.4th at p. 1414; In re Barker (2007) 151 Cal.App.4th 346, 377.) Since the record establishes that Samble does not pose an unreasonable risk to public safety, we will affirm the lower court's decision.
Finally, when the superior court ordered Samble's case remanded to the Board, the court went further and ruled that the Board "may not invoke unsuitability factor 2402(c)(1), the commitment offense itself, as grounds for denying parole on this record." (Italics added) The Board argues, "By limiting the factors that the Board may consider and prescribing what should happen at future parole consideration hearings the superior court transgressed its authority and interfered with the Board's broad discretion. We acknowledge that section 2402, subdivision (b) provides in part: "All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Here, however, the superior court was not limiting the Board's exercise of discretion. Rather, the superior court was pointing out that on the record before it, there is no evidentiary support for the Board's conclusion that Samble's commitment offense was done in a calculated manner, such as an execution style murder. "If there is evidentiary support for a finding currently lacking it, the Board may make that finding again." (In re DeLuna, supra, 126 Cal.App.4th at p. 599.) Nevertheless, as guidance for the Board, we reiterate that on the record before this court, there is no evidence that Samble poses an unreasonable risk of danger to society if released on parole.
The Board stated in passing that the District Attorney of Santa Clara County indicated his opposition to parole. As we have said before, "We find nowhere in the statutes or regulations where it states that parole should be granted or denied based on the position of the District Attorney's office. The decision to grant parole rests on the guidelines listed in section 2400 et seq and Penal Code section 3041. (Rosenkrantz, supra, 29 Cal.4th at p. 658 [there must be "some evidence in the record before the Board [that] supports the decision to deny parole, based upon the factors specified by statute and regulation" (italics added)].)"
Disposition
The superior court's order granting Samble's petition for writ of habeas corpus is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.