In re Caswell

• Decision Date: 10 October 2001
• Docket Number: No. A093799.,A093799.
• Citation: 112 Cal.Rptr.2d 462,92 Cal.App.4th 1017
• Court: California Court of Appeals Court of Appeals
• Parties: In re Steven CASWELL, on Habeas Corpus.

112 Cal.Rptr.2d 462

92 Cal.App.4th 1017

In re Steven CASWELL, on Habeas Corpus.

No. A093799.

Court of Appeal, First District, Division 5.

October 10, 2001.

As Modified on Denial of Rehearing November 8, 2001.

Review Denied January 23, 2002.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Paul D. Gifford, Supervising Deputy Attorney General, Sara Turner, Deputy Attorney General, Barbara Sutliffe, Deputy Attorney General, for Appellant.

Michael Satris, Bolinas, under appointment by the Court of Appeal, for Respondent.

STEVENS, J.

Respondent Steven Caswell (Caswell) was granted parole by appellant Board of Prison Terms (Board) in 1986, with a release date in September 2000. In 1999, the Board found cause to rescind the prisoner's unexecuted grant of parole. After the trial court granted Caswell's petition for writ of habeas corpus, overturning the rescission and reinstating Caswell's parole release date, the Board appealed, contending the court erred because sufficient evidence supported its decision rescinding Caswell's parole. We reverse the judgment.

I. FACTS AND PROCEDURAL HISTORY

Caswell is serving an indeterminate life sentence with the possibility of parole, following his 1976 conviction of four counts of kidnapping for the purpose of robbery (Pen.Code, § 209); he was also convicted of four counts each of first degree robbery (Pen.Code, § 211), assault with a deadly weapon (Pen.Code, § 245, subd. (a)), and attempted murder (Pen.Code, §§ 664/187), as to which prison sentences were stayed. The Board is the executive agency authorized to grant parole and set release dates for prisoners serving life sentences, and in certain circumstances it may rescind an unexecuted grant of parole. (Pen.Code, §§ 3040, 3041.)

A. Caswell's Offenses

The 1978 appellate decision affirming Caswell's convictions summarizes the offenses as follows: "On the evening of May 20, 1976, at approximately 9:00 p.m., [the victims] college students Eanswythe Leicester, Jeremy Grainger, James McCabe and Laura Goldman were in the vicinity of Redding, California, on a camping trip. The [victims] stopped at campsite 14 of the Antlers Campground to eat and go swimming. On their way to the lake the [victims] met [the prisoner] Caswell and spoke with him briefly. After finding that they could not reach the lake from their campsite, the [victims] crossed campsite 16 on their way back to the car, and there talked with both [Caswell and his crime partner, David Englund] who were occupying that campsite. [¶] The [victims] then returned to their car and left the campsite, and as they passed campsite 16 [Caswell and Englund] came out to the road and waved for them to stop. [Caswell and Englund] asked for a ride out of the campground, then [] Englund pointed a gun at the [victims] and ordered them out of the car. The [victims] were ordered to the campsite 16 picnic benches as Englund pointed the gun at them and Caswell pushed them along, saying that Englund had `a hole in his leg.' Caswell drove the car into the campsite. [¶] [Caswell and Englund] demanded money from the [victims]; Jeremy and Laura gave their money to [Caswell and Englund] and James went to the car with Caswell and gave his money to him. Eanswythe had left her money in her backpack in the car and she told [Caswell and Englund] she did not have money. When [Caswell and Englund] wanted more money[,] Jeremy told them they were students and did not have much. Englund struck him with the gun. [Caswell and Englund] indicated that they were going to take the car, and again stated that Englund was wounded. [¶] [Caswell and Englund] attempted to tie the [victims] at the picnic bench, but then took them through the bushes to a meadow where they were forced to lie on the ground. [Caswell and Englund] decided that the [victims] were too close to the road and might be able to shout for help, so they ordered them to get up and took them farther from the road. [Either Caswell or Englund] stated that Jeremy's political T-shirt would make a good target. The gun was fired, but no one was shot at that time. [¶] The victims were taken to a cliff and ordered to undress. Eanswythe was then tied by the ankles with Jeremy's T-shirt, and Laura and Jeremy were tied together with rope [Caswell and Englund] had brought along. [Caswell and Englund] tied Eanswythe's ankles to Laura and Jeremy using the same rope that Laura and Jeremy were tied with. While tying the victims, Caswell indicated that he wanted to take sexual advantage of one of the girls, but Englund was in a hurry and the matter was dropped. When the victims were tied [Caswell and Englund] debated whether to shoot them, Englund arguing that they should and Caswell saying they should not. [¶] After tying three of the victims [Caswell and Englund] ran out of rope, and so they tied James' [sic] legs with some clothing. Englund struck James with the gun[,] and Caswell pushed him off the cliff. [Caswell and Englund] shot at James and rolled rocks down at him until they believed he was dead. Caswell attempted to push the others off the cliff but failed, due to the manner in which they had been bound. The following discussion then took place: `Englund: "Okay, let's just gag them." Caswell: "Shoot them." Englund: "Okay."` Englund then shot Laura in the stomach and Jeremy in the chest. Eanswythe realized that it was her turn, and she held her hand in front of her face to prevent her glass lens from shattering into her eyes. She was struck with the gun four or six times, and two shots were fired at her, one passing by her ear and the other striking her finger. She then fell backwards. [¶] [Caswell and Englund] ran back to the car and drove off."

B. Board's Grant of Parole in 1986

Caswell became eligible for release on parole in April 1983, but was denied a parole date on four occasions between May 1982 and March 1985, due at least in part to the seriousness of his offenses and, on most of these occasions, unfavorable psychiatric evaluations.

In March 1986, Caswell again appeared before the Board for parole consideration. In addition to the summary of the offenses from the appellate decision, the 1986 panel had before it other material depicting the crimes, including transcripts of the 1982 and 1985 parole hearings. Based on this information, it appeared the appellate court had attributed the statement, "Shoot them," to Caswell due to the testimony of one of the female victims. The two male victims had testified that Caswell repeatedly disagreed with Englund's suggestion to shoot them. According to the attorney who represented both Englund and Caswell at the 1985 hearing, Englund represented that Caswell had never suggested shooting the victims.¹

The 1986 panel found Caswell suitable for parole, based on: his minimal criminal record and lack of significant history of violent crimes; his stable social history; his participation in education programs, self-help programs, and vocational programs while in prison; his maturity and age; his parole plans, including job offers and family support; his positive institutional behavior; and favorable psychological evaluations. The panel stated: "Based on the information contained in the record and considered at this hearing, the panel states as required by [Penal Code section] 3043 that the prisoner would not pose an unreasonable threat to public safety if released on parole."

The 1986 panel calculated an aggregate term of sentence of 36 years, minus 41 months of post-conviction credits, and set a parole release date in December 2006. Caswell's period of confinement was based on the four counts of kidnapping for the purpose of robbery. The panel set an aggravated term on two of these four counts, a middle term on another, and a mitigated term on the count pertaining to victim McCabe. The panel justified the mitigated term by pointing to the fact that, although Caswell pushed McCabe off a cliff and attempted to kill him, McCabe's injuries were minor. Caswell's term was later reduced, with a release date in September 2000.

The Board, sitting en banc, reviewed the grant of Caswell's parole release date in August 1998. Although this review was undertaken without a transcript of the 1986 hearing, the hearing at which a panel found the prisoner suitable for parole, the Board ordered that a parole rescission hearing be conducted to determine whether there was good cause to rescind Caswell's parole. Three reasons were identified for ordering the parole rescission hearing: (1) the extreme seriousness of the crime; (2) Caswell's minimization of his involvement in the commitment offenses; and (3) Caswell's lack of remorse.

C. The Board's Rescission of Parole in 1999

At the rescission hearing in March 1999, the panel relied exclusively on the transcript of the 1986 hearing and did not receive any new evidence. For example, the 1999 panel was not in possession of transcripts of the 1982 and 1985 hearings, which would have provided full descriptions of the crimes and Caswell's involvement, as well as Caswell's testimony on those points.

Following the hearing, the 1999 panel unanimously found good cause to rescind Caswell's parole, citing the extreme seriousness of the crimes and Caswell's minimization of his involvement. In particular, the 1999 panel concluded that: (1) "[A]n in depth discussion of the life crime was not conducted by the [1986] Panel and the prisoner clearly minimized his role in this horrific crime"; (2) "[t]he [1986] Panel never mentioned]" the stayed convictions; (3) the [1986] Panel's mitigation of the term for McCabe "missed the point in that the prisoner acted alone in attempting to murder the victim by pushing him over a cliff and then with Englund "pushed boulders down on him to further do harm to the victim"; (4) Caswell minimized the "sexual overtures" he made to one of the female victims; and (5) the [1986] Panel should have found aggravation in the...