In re Barker

• Decision Date: 24 May 2007
• Docket Number: No. A114686.,A114686.
• Citation: 59 Cal.Rptr.3d 746,151 Cal.App.4th 346
• Court: California Court of Appeals Court of Appeals
• Parties: In re David BARKER, on Habeas Corpus.

59 Cal.Rptr.3d 746

151 Cal.App.4th 346

In re David BARKER, on Habeas Corpus.

No. A114686.

Court of Appeal, First District, Division 2.

May 24, 2007.

Marc Elliot Grossman, Upland, for Petitioner.

William Lockyer, Attorney General of the State of California, Mary Jo Graves, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Jennifer A. Neill, Supervising Deputy Attorney General, Denise A. Yates, Deputy Attorney General, for Respondent.

RICHMAN, J.

In 1977, 16-year-old David Barker participated with his friend Barry Braeseke in the killing of Braeseke's parents and grandfather. Braeseke shot his parents and Barker shot the grandfather, after first hitting him several times on the head with a chisel. Tried as an adult, Barker was convicted of two counts of second degree murder and one count of first degree murder. Now almost age 47, Barker has been in state prison for 29 years, during which time he has participated in numerous self-help programs, obtained his General Education Diploma (G.E.D.), earned 45 units of college credit, acquired several vocational skills, and has been discipline-free since 1995. And Barker's development in prison culminated in a September 2005 mental health evaluation that confirmed earlier evaluations: "risk for recidivism on a violent crime while in the free community is within the low range."

Against that background, Barker appeared on November 14, 2005, before a two-person panel of the Board of Parole Hearings (Board),¹ in his ninth attempt to obtain parole. Barker was sworn and answered questions from the Board members and from his counsel. No other witnesses appeared. Following a relatively brief hearing,² the Board orally announced its two decisions: it refused Barker parole and deferred his next parole hearing for three years.

In this petition for writ of habeas corpus Barker makes five arguments, the first of which is in essence that the Board's denial of parole violated his due process rights because it was based on findings supported by no evidence, based on grounds supported solely on the unchangeable facts of his commitment offenses, and/or based on grounds inherent in the elements and definitions of the commitment offenses. We conclude that this contention has merit, and thus grant the petition and order a new parole suitability hearing.

BACKGROUND

1. Procedural Background

Although 16 years old at the time he committed the crimes, Barker was tried as an adult.³ He was convicted by a jury on April 14, 1977, and received three concurrent sentences—five years to life for each of the second degree murder convictions for the killing of Braeseke's parents, and life for the first degree murder conviction for the killing of Braeseke's grandfather. Barker's minimum parole eligibility date was set at August 25, 1983. The Board has denied Barker parole ten times: in 1982, 1984, 1986, 1987, 1988, 1991, 1994, 1997⁴, 2000 and, most recently, 2005.⁵

On February 28, 2006, Barker filed a petition for a writ of habeas corpus in Alameda County Superior Court challenging the Board's most recent denial of parole. The superior court denied that petition on July 13, 2006. Barker filed his petition for habeas corpus in this court on July 31, 2006, accompanied by 13 exhibits. On October 4, 2006, we issued an order to show cause directed at the Director of the Department of Corrections and Rehabilitation, pursuant to which respondent John Marshall, Warden at the California Men's Colony (Warden), filed a return, accompanied by 22 exhibits of his own.⁶ Barker filed a denial and traverse.

2. The Crimes

The following description of the crimes comes from the Board's initial decision in 1982 denying parole, part of which the Board quoted in its decision at the November 14, 2005 parole hearing (Parole Hearing): In June of 1976, Barker and co-defendant Braeseke met over citizens' band (CB) radio. Soon after they met, Braeseke asked Barker to help kill Braeseke's parents. The two talked of living and traveling together with the money they would get after the parents were dead.

Barker often boasted to Braeseke he had killed chickens before. Several times, Barker had tied a bag around some chickens' heads and thrown them up in the air to watch them hit the ground. He had also buried a chicken up to its head, then put hay in a circle around the chicken and lit it on fire.⁷ Based on these experiences, Barker suggested the best way to kill Braeseke's parents would be by hitting them on the head and choking them.

On August 23, 1976, after Barker and Braeseke had spent the day together, they went to Barker's garage and selected weapons. Barker chose a chisel and Braeseke chose a heavy mug. They then went to Braeseke's house. In Braeseke's bedroom they discussed their plan. The discussion was interrupted when Braeseke was called to dinner. After dinner, Braeseke returned to Barker, who had waited in the bedroom. They went downstairs to the family room where Braeseke's mother, father and grandfather were watching television. After being in the family room a brief period, Barker and Braeseke went back upstairs where Braeseke said he wanted to use his .22 rifle rather than choke his parents and grandfather. The two agreed. Barker then went back downstairs. Braeseke remained in his room for a few more minutes then went downstairs. At approximately 8 p.m., Braeseke walked up behind his father and shot him in the head three times. Braeseke then shot his mother two times, once in the head and once in the stomach. Barker struck the grandfather on the head with a chisel three-to-four times.⁸ After shooting his mother and father, Braeseke came over to help Barker by throwing the grandfather on the floor next to the mother. Barker then picked up the .22 rifle and shot the grandfather twice in the head. All these events, Barker said, happened in very quick succession.

Afterwards, Barker and Braeseke ransacked the house to make it look like a burglary. Afraid of leaving finger prints, Barker and Braeseke removed some of the objects they had touched while ransacking the house, along with the .22 rifle. While driving towards Hayward, they stopped at a gas station to wash blood off of their clothes. They went to a secluded road where Barker threw the .22 rifle under a bridge. Barker hid the objects they had removed from the house in his backyard.⁹

3. Barker's Background

According to a September 2005 psychological assessment, Barker grew up in a stable family without serious problems. He described his parents as supportive. While his brother was an alcoholic, there was no other family history of alcoholism or drug abuse. There was no domestic violence, no mental disorders, and no legal problems. Barker has maintained contact with his half-sister and his mother while in prison. His father and brother are deceased.

Barker's criminal record consists of the commitment offenses and one arrest, in 1973, when Barker was 13 years old. Barker was arrested (along with four other juveniles) for burglary and vandalism of items from an apartment complex storage locker. He received a reprimand and his parents paid for his share of the damage. At the Parole Hearing Barker testified no charges were ever filed. In a separate incident almost two years later, Barker's parents reported him to the sheriffs department when he did not return home on time. This incident did not lead to any arrest.

The April 2004 life prisoner evaluation report indicated that "[neighbors described [Barker] as a troublemaker and stated they saw him torture animals and light fire to a neighboring property that resulted in $45,000 worth of damage." Regarding the fire, Barker admitted at the Parole Hearing that he and a neighbor boy his age had been playing with bottle rockets in his backyard, and they may have accidentally started the fire in the house across the street, but it was not intentional or malicious. No charges were ever filed and Barker was not arrested in connection with this incident.

Regarding torturing animals, Barker admitted during the Parole Hearing he had been cruel to chickens as a young teenager. However, he has since told a psychologist that his behavior was "senseless and stupid, and he is ashamed that he behaved that way." His background otherwise shows he was able to take care of animals, as Barker was an active member in the 4-H club for some seven years (including three years as club president), and he raised cattle, pigeons, rabbits, and chickens.

4. Barker's Conduct While In Prison

The California Department of Corrections and Rehabilitation received Barker on June 14, 1977, when he was 17 years old. He had not yet completed his high school diploma and had "virtually no work experience or skills." While in prison, Barker has had numerous jobs for which he has received consistent above-average to exceptional ratings. He also obtained his G.E.D. on August 14, 1980 and has completed 45 units in college courses. He completed vocational and on-the-job training as an airframe mechanic, auto mechanic, carpenter, plumber, and clerk. Since 1987, he has participated in numerous therapy and self-help programs. These include the Category T therapy program, Anger Management, House of Healing, Hands of Peace, Four Agreements (a personal development and maturity course), and Advanced Alternatives to Violence. In March 2005, he completed ah inmate peer education program to become a peer HIV educator.

Barker has not had any disciplinary problems since 1995, and none of the six earlier disciplinary problems involved violent behavior. The disciplines were: in February 1978 for possessing contraband (five dollars belonging to another inmate); in March 1979 for possessing 12 marijuana joints; in April 1979 for allowing another inmate in his cell; in October 1983 for possessing contraband; in September 1990 for manipulating staff; and in June 1995 for smoking in bed. Barker also received four counseling...