In Re Charmaine Petit On Habeas Corpus.

• Decision Date: 15 December 2010
• Docket Number: Super. Ct. No. A915177,Super. Ct. No. BH006689,B224261
• Parties: In re CHARMAINE PETIT on Habeas Corpus.
• Court: California Court of Appeals Court of Appeals

In re CHARMAINE PETIT on Habeas Corpus.

B224261

Super. Ct. No. A915177

Super. Ct. No. BH006689

COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE.

Filed: December 15, 2010

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Peter P. Espinoza, Judge. Remanded to Board of Parole Hearings for new hearing.

Michael J. Brennan for Petitioner.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kathleen R. Frey and Michael Rhoads, Deputy Attorneys General, for Respondent.

Petitioner Charmaine Petit is an inmate confined at the California Institution for Women, following a sentence to state prison for 16 years to life upon her 1987 conviction of second degree murder. She began serving her term in prison on August 20, 1987, and had a minimum parole eligibility date of January 1, 1998.

At the time of the parole hearing, she was 52 years old.

On June 25, 2009, the Board of Parole Hearings determined that Petit was not suitable for parole, setting forth various factors, as discussed, infra. The determination became final on October 23, 2009. Petit sought review in the Los Angeles Superior Court, which denied her petition for writ of habeas corpus on March 26, 2010. Petit sought review in our court, and we issued an order to show cause why she should not be granted relief.

Because we hold that the Board's 2009 decision is not supported by any evidence, we grant the petition, vacate the Board's decision, and remand the matter to the Board to conduct a new parole suitability hearing consistent with due process and the Supreme Court's decision in In re Prather (2010) 50 Cal.4th 238.

FACTS

The commitment offense

In 1986, Petit went to the residence of Oliver Williams to retrieve money she had given him to purchase drugs for her. She went into the bedroom of Williams's roommate, Victor Benjamin. Williams heard noises from Benjamin's bedroom and went in to investigate. He found Benjamin and Petit, armed with a knife, struggling. Benjamin told Williams that Benjamin had been stabbed; Williams took the knife from Petit and Benjamin threw her on the bed and struck her. Williams left the room to put the knife in the kitchen; when he returned, he saw that Benjamin was on the floor and Petit was bent over him, going through his pockets. As Williams pulled her out of theapartment, Petit struck Williams with an ashtray. Benjamin died as a result of the knife wounds.

Petit has consistently maintained that Benjamin struck her and attempted to assault her sexually; she defended herself with a knife she always carried for protection. She has consistently denied going through Benjamin's pockets, explaining that she had bent over Benjamin because he was "'breathing funny.'" Petit has always insisted that she was frightened and did not know what she was doing when she hit Williams with an ashtray.

Petit was convicted by jury of second degree murder; the allegation that the murder was committed with a deadly weapon (a knife) was found true. We affirmed the conviction on December 21, 1989, in appeal No. B030073.

Petit's social history

Petit grew up in a violent neighborhood. When she was "a little kid," one brother was shot in the back at a liquor store after an argument and the other was found hanged on a Navy ship. Petit's juvenile record includes a sustained petition for attempted robbery in 1973. Petit had a long history of substance abuse, including alcohol, cocaine and phencyclidine. Before imprisonment, Petit participated in two rehabilitation programs, from which she relapsed. At the time of the commitment offense, she was working for the County of Los Angeles.

Petit has two grown children, who call, write and visit her.

Petit's in-prison disciplinary history

Although her early prison history demonstrates great difficulty in adjusting to prison life, Petit's last serious disciplinary report ("CDC 115") was for mutual combat, 10 years ago, in 2000.¹ Her last rule violation ("CDC 128-A"), for smoking, occurred in 2003.

Since then, Petit's record has been exemplary.

Although in 2005 she was attacked physically by another inmate after leaving church services, she did not fight back. Instead, she appropriately reported the attack to the authorities.

2006 parole hearing

In 2006, the Board denied parole for two years, recommending that Petit remain disciplinary free, participate in self-help therapy, earn positive "chronos," and "refine" her parole plans. Petit has fully complied with these directions.

Petit's institutional programming

Petit's institutional programming has been excellent.

Petit has acquired skills in Word Processing, Vocational Upholstery, Janitorial Maintenance and Nursing. She is also a certified phlebotomist.

Having completed 50 credits at the University of La Verne, Petit is close to finishing an Associate of Arts degree in Human Services.

The psychological evaluation completed in 2008 reports that Petit has worked full time in the Substance Abuse Program (SAP) as a peer mentor, with extensive training in substance abuse treatment and relapse prevention. The 2008 evaluation sets forth the plaudits she earned since the 2006 parole hearing: ²

"February 20, 2008 "12 Step Codependency Self Help Group [CODA]. Petit was facilitator and 'demonstrated original and independent thinking, ' participated in twenty out of twenty-five groups between September 6, 2007 and February 20, 2008, signed by J. Evans, CODA sponsor"

"February 12, 2008 "Twenty months as Peer Mentor, showed 'Personal growth' and 'assisted in organization, ' signed by Cherie Ballesteros, Transition Counselor/Forever Free"

"February 11, 2008 "Participant and Peer Mentor, 'Progress within herself and with others, ' 'positive attitude, ' SAP, signed by Octavia Howard, Journey Counselor/Forever Free"

"February 7, 2008 "'Positive attitude' SAP, signed by Arleen Evans, Entry Counselor/Forever Free"

"February 6, 2008 "Commendation for being a 'strong leader, ' 'dependable, ' 'humbly teaches her peers, ' 'learning to incorporate kindness with a gentle touch, ' SAP"

"January 30, 2008 "Alcoholics Anonymous (AA), Narcotics Anonymous (NA), six meetings between September 19, 2007 and December 5, 2007"

"January 14, 2008 'Peer mentor' since May 16, 2006, 'everything there is to do as a mentor, ' 'reliable, dependable, capable, ' 'definitely an asset to the Forever Free Therapeutic Community, ' signed by Eula B. Charles, Program Manager"

"October 2, 2007 Special guest for PATCH Inmate Ministry Team, part of team of praise dancers, 'dedicated to this ministry... commended for her devotion to serve others, ' signed by Reverend Lois M. Woodard, Protestant Chaplain"

"September 18, 2007 "'Valued member of Hyssop Praise Dancing Troupe... lead dancer, choreographer, and background dancer, ' 'dedicated, 'outstanding commitment, ' signed by C. Munerlin, CCI, Mass Choir Sponsor"

"August 23, 2007 "Young Adult Networking Group (YANG), 'Chrono of excellence, ' 'successfully completed "Seven Habits of Highly Effective People" a three session course sponsored by Franklin Covey International, ' July 2-16, 2007"

"August 17, 2007 "Forever Free, 'asset to peer mentor programs, ' signed by Michele Peters, Forever Free Counselor"

"August 6, 2007 "CODA, Co facilitated November 2, 2006-June 28, 2007, signed by Lupe Quiroz, AA/NA Sponsor"

"June 28, 2007 "Participation in CODA, November 2, 2006 through June 28, 2007"

"June 28, 2007 "Participation in AA/NA, attending 6 meetings per month, November 2, 2006 through June 28, 2007"

Petit's rehabilitation is both intensive and extensive. Not only has she been commended by her teachers, she has become a leader, helping others with the same problems she has had to face and overcome.

Petit's parole plans

Crossroads Program and two different Walden House locations, which have accepted Petit into their transition programs, will assist Petit in securing work in one of her vocational fields. Petit plans to continue her academic education at a community college and to continue to participate in both Alcoholics Anonymous and Narcotics Anonymous.

Upon release, Petit will have the support of family and friends.

Petit's insight

The 2008 psychological report concludes that Petit has been active in Substance Abuse Program, Alcoholics Anonymous, Narcotics Anonymous, and the 12-Step Codependency Self Help Group, "and her work with them has assisted her in the development of a better understanding of how violence occurs. Ms. Petit appears to have given some thought and attention to the underlying causes of her offense, and... she recognizes that her choice to abuse substances was a contributor to her life offense. She appears to have developed the ability to be assertive and to deal with potential destabilizers without any regression to aggressive thoughts or actions or to the use of alchohol."

During the parole hearing, Petit told the Commissioners, in part, that at previous parole hearings, "I didn't want to say anything bad about Victor [Benjamin], because his dying was already too much for me. I have never said it here before, and the only reason I'm getting ready to say this now is to show the personality I was dealing with that night, along with my own personality. This came out in my bail hearing and trial, and that's Victor was a gangbanger, Victor was a dope dealer, Victor had a police record and Victor was under the influence that night.... This also doesn't come up, even though it's in your packet and the police report, and that's my face had bruises on it.... "

Petit went on to say: "I also thought that...