In re Gray

• Decision Date: 24 May 2007
• Docket Number: No. B197193.,B197193.
• Court: California Court of Appeals Court of Appeals
• Parties: In re Henry Richard GRAY, on Habeas Corpus.

59 Cal.Rptr.3d 724

151 Cal.App.4th 379

In re Henry Richard GRAY, on Habeas Corpus.

No. B197193.

Court of Appeal, Second District, Division 3.

May 24, 2007.

Rich Pfeiffer, under appointment by the Court of Appeal, for Petitioner.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Heather Bushman, Deputy Attorney General, for Respondent.

KITCHING, J.

INTRODUCTION

In this original writ proceeding, we conclude that the Governor's decision finding petitioner Henry Richard Gray (Gray) unsuitable for parole is not supported by "some evidence." (In re Rosenkrantz (2002) 29 Cal.4th 616, 626, 128 Cal.Rptr.2d 104, 59 P.3d 174 (Rosenkrantz).) We therefore grant Gray's petition for a writ of habeas corpus.

In 1980, a jury found petitioner Gray guilty of second degree murder with the use of a firearm. (Pen.Code, §§ 187, 12022.5.) The trial court sentenced Gray to 15 years to life in prison. The trial court stayed the two-year term for the firearm enhancement.

On January 27, 2005, the Board of Parole Hearings (the Board) determined Gray was suitable for parole. On June 16, 2005, the Governor, Arnold Schwarzenegger, reversed the decision of the Board. Gray filed a petition for a writ of habeas corpus, which the trial court and this court summarily denied. The California Supreme Court ordered this court to vacate the summary denial and to issue an order to show cause returnable in the superior court as to why the Governor did not abuse his discretion by reversing the parole determination of the 2005 Board.¹

On January 12, 2007, the trial court entered an order granting Gray's petition for a writ of habeas corpus. The trial court concluded that the Governor's reversal of the 2005 Board decision to grant parole was not supported by "some evidence." The trial court vacated the Governor's decision, and reinstated the Board's January 27, 2005 decision finding Gray suitable for parole. The trial court remanded the matter to the Governor to review the 2005 Board decision and to issue a new parole determination in accordance with due process.

Based solely upon the nature of the commitment offense, on February 8, 2007, the Governor again reversed the parole suitability determination of the 2005 Board. The Governor concluded that Gray was unsuitable for parole because his release would pose an unreasonable risk of danger to society. The Governor found that Gray's commitment offense was "especially heinous" based upon his findings that the murder was carried out in a cold and calculated manner and that there was evidence showing premeditation.

Gray filed a petition for a writ of habeas corpus in this court asserting that the Governor abused his discretion and violated Gray's due process rights by reversing the 2005 decision of the Board finding Gray suitable for parole. Gray asserts that the Governor's decision is not supported by the "some evidence" standard set forth in Rosenkrantz, supra, 29 Cal.4th at page 626, 128 Cal.Rptr.2d 104, 59 P.3d 174.

We conclude that the Governor's decision's finding Gray unsuitable for parole is not supported by some evidence. There is no evidence in the record to support the Governor's findings that Gray's second degree murder was cold and calculating or premeditated. Thus, the crime was not "especially heinous" under the pertinent Regulation. (Cal.Code Regs., tit. 15, § 2402, subd. (c)(1).)²

FACTUAL AND PROCEDURAL BACKGROUND

In 1980, a jury found Gray guilty of second degree murder with the use of a firearm. (Pen.Code, §§ 187, subd. (a), 12022.5.) The trial court sentenced Gray to 15 years to life, but stayed the two-year term as to the use of the firearm. In 1990, Gray reached his minimum eligible parole date and became eligible for parole consideration.³

In 1993, 2001, and 2002, prior boards found Gray suitable for parole. In 1997, a prior board rescinded the 1993 parole suitability determination. In 2001, the Decision Review Unit of the Board disapproved the 2001 parole suitability determination. In 2002, former Governor Gray Davis reversed the 2002 parole suitability determination.

1. In 2005, the Board Determined Gray Was Suitable for Parole

Following a hearing, on January 27, 2005, a two-member panel of the Board found Gray suitable for parole. An attorney represented Gray at the hearing. The record before us consists, in part, of a transcript of the Board's proceedings.⁴

At the commencement of the hearing, the presiding commissioner indicated the Board had reviewed, among other documents, Gray's "Central File," transcripts from prior parole hearings, as well as other unspecified documents. The presiding commissioner advised Gray that the purpose of the hearing was to determine whether Gray was suitable for parole. The Commissioner advised that Gray would be found unsuitable for parole "if in the judgment of the Panel the inmate would pose an unreasonable risk of danger to society if released from prison."

Below, we set forth in detail the contents of the transcript of the January 27, 2005 parole hearing.

a. Gray's Background and Prior Criminal History

Gray graduated from Whittier College in 1973. He received a Bachelor of Arts Degree in Political Science with a minor degree in Business Administration. Gray was working for the Post Office at the time of the incident.

Gray had no juvenile record and no other offenses as an adult.

b. The Commitment Offense

At the 2005 hearing, the presiding officer explained to Gray that she would read into the record a summary of the commitment offense from the April 2003 report of the Board. She further explained that Gray would then have the opportunity to explain what happened in this own words. The presiding commissioner read the following statement into the record:

"`On 7-30-79 victim Ronnie Waddell ..., age 32, was shot to death by Henry Gray, age 27.... The victim was an acquaintance to Gray through Gray's wife, Jacqueline Gray, the former Jacqueline Waddell.'"

"`On 7-30-79 officers of the Hawthorne Police Department responded to a radio call to assist the fire department in responding to a victim of a gunshot wound.... Upon arrival, officers observed the victim, Ronnie Waddell, lying in a pool of blood in the driveway—blood appeared to be from a gunshot wound to the lower right cheek. Waddell was transported to Hawthorne Community Hospital where he was pronounced dead on arrival.'"

"`Officers at the scene were approached by Jacqueline Gray, Henry Gray's wife. She relayed information that her husband shot Ronald Waddell, Jacqueline's ex-husband, with a handgun that she believed he had (inaudible) in a nearby yard. She informed the officers she last saw her husband driving his vehicle westbound on Broadway.'"

"`Mrs. Gray relayed information to the officers of events leading to the shooting. Earlier that day while at her employment ... on Wilshire Boulevard, Los Angeles, her husband approached her and demanded the keys to her 1978 Ford Thunderbird. She claimed her husband struck her in the face causing a black eye, then left, taking the vehicle that was registered in both of their names. She claims she was in the process of obtaining a divorce and was living with her ex-husband, the victim.'"

"`At approximately 6:30 she left work and went to a motel room she shared with Ronald Waddell. She claimed that at approximately eight o'clock Ronald came home, saw the black eye and became angry. She claimed Ronald obtained her husband's phone number and called him. After a short conversation, she claims Ronald told her to accompany him to her husband's home to pick up the keys. When they arrived at her husband's home, Ronald parked near a phone booth and made two attempts to call Gray. When Ronald observed Gray outside the home, she stated she accompanied Ronald when he confronted her husband. She claims after a short conversation her husband returned the keys, then Ronald stated quote "this shit is bad about you going to her—to her job to beat her up" end quote.'"

"`Jacqueline claimed she tried to get Ronald to leave then, saying, let's go. She claimed Ronald was going to teach her husband a lesson and Ronald started towards Gray. Gray pulled a revolver from his back pocket and Ronald stated, that little gun isn't going to scare me. Jacqueline claims at that time one shot was fired and Ronald fell to the ground. Gray turned himself into the Hawthorne Police Department the following day while accompanied by his attorney.'"

The presiding commissioner then permitted Gray to state what happened in his own words. Gray stated the following: "That's exactly what happened pretty much in that I was called at work and she informed me she needed some money. And this had been going on for a few weeks. We had separated about four weeks earlier.... And so when I arrived at her place of employment, during the course of the conversation I informed her that she had to stop because the way things were going we might as well reconcile and get back together because the separation wasn't a separation, it was actually just a means of being apart. At that time that's when she told [me] she wasn't using the money for herself, that she was giving it to Ronnie. I guess—I guess my ego took over and I did slap her."

Gray continued his testimony before the 2005 Board: "At that time she gave me the keys to the '78 Thunderbird and I told her that I would bring her the keys to the '79 Fiat the next day. Later on that night when I had woken up, getting ready to go to work, is when I got the phone call from Ronnie. And as you can read in the probation officer's report, he made some statements, some threats, and I guess at the time in my mind I took the threats literally, yes, I did. And so I called my younger brother, my only brother, and I told him I was coming over to his house and that's why I was outside. I didn't receive any more phone calls from Ronnie and so—I guess...