In re Lee

• Decision Date: 17 October 2006
• Docket Number: No. B188831.,B188831.
• Citation: 143 Cal.App.4th 1400,49 Cal.Rptr.3d 931
• Court: California Court of Appeals Court of Appeals
• Parties: In re Wen LEE on Habeas Corpus.

49 Cal.Rptr.3d 931

143 Cal.App.4th 1400

In re Wen LEE on Habeas Corpus.

No. B188831.

Court of Appeal, Second District, Division 8.

October 17, 2006.

Roger S. Hanson, Santa Ana, for Petitioner.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Heather Bushman and Amanda Lloyd, Deputy Attorneys General, for Respondent The People of the State of California.

RUBIN, J.

Petitioner Wen Lee seeks a writ of habeas corpus ordering his release on parole after Governor Arnold Schwarzenegger reversed the Board of Parole Hearings' recommendation to grant him parole. We grant the writ and order his release.

FACTS AND PROCEDURAL HISTORY

In 1989, Wen Lee pleaded guilty to second degree murder and attempted premeditated murder. Because there was no trial ending in a verdict, we rely on the probation report for the details of his crimes.

Sometime around 1987, Wen Lee sold his restaurant to Johnny Soong in return for Soong's promise to make periodic payments toward the purchase price. Lee intended to support his retirement from the sale proceeds. Soong repeatedly failed to make payments, however, causing Lee hardship and forcing him to renegotiate Soong's debt a number of times. Some renegotiation meetings were heated. During one meeting, Soong pulled a knife on Lee, forcing Lee to flee.

The next time Lee visited Soong at the restaurant to collect a payment, Lee went armed with a gun and box of ammunition. He had decided that, if Soong refused to pay, he would kill Soong and then himself. Lee entered the restaurant and asked Soong for his money. Soong shook his head and said he did not have time to talk. Lee pulled out his gun and fired five times before it jammed. He hit Soong twice, who survived the shooting, but one of the bullets hit Soong's wife, Tuai Li-Chun, in the head, killing her.

Lee pleaded guilty to attempted premeditated murder of Soong, second degree murder of Mrs. Soong and two firearm enhancements. In 1989, the trial court sentenced Lee to state prison for 17 years to life with the possibility of parole for murder, and life with the possibility of parole for attempted premeditated murder.

Nearly sixteen years later, in January 2005, Lee had a parole hearing before the Board of Parole Hearings (hereafter board).¹ At the hearing, the board concluded that Lee would not pose an unreasonable risk of danger to public safety if he were released. The board therefore concluded Lee was eligible for parole. In support of its decision, the board cited multiple factors. They included Lee's lack of a criminal record before his crimes against the Soongs; his excellent behavior in prison, including his effort to improve himself through prison education and the absence of any discipline for misconduct; his advanced age of 81 years and poor health, including difficulty walking, hypertension, diabetes, increasing renal failure, and cardiovascular disease; his mental health evaluations showing "little risk of recidivism" and "very low risk of violence in the community"; his realistic plans for supporting himself outside prison by living with his family; and finally, his signs of remorse and acceptance of responsibility for his crimes.

The board's recommendation went to the Governor for his review. In June 2005, he reversed the board. He acknowledged the many factors the board cited in support of parole, but concluded Lee was nevertheless ineligible for two reasons. First, the Governor viewed Lee's acts in committing his crimes as "atrocious" and beyond the "the minimum necessary to sustain" his convictions. Second, Lee had accepted responsibility for his crimes less than one year earlier in late 2004, which the Governor concluded was too recent to "tip[] the scale in his favor"; up to then, the Governor noted, Lee had claimed he shot Soong in self-defense and denied shooting Mrs. Soong at all.

Lee filed in superior court a petition for writ of habeas corpus. The superior court found the record contained "some evidence" to support the Governor's decision that Lee was unsuitable for parole. The court thus dismissed the petition. Lee then filed a petition for writ of habeas corpus in this court, which we summarily denied in March 2006.

Lee thereafter filed a petition for review by our Supreme Court. In June 2006, the Supreme Court granted review and transferred the case to us with an order to vacate our summary denial. It also ordered us to issue to the Director of Corrections and Rehabilitation an order to show cause why the Governor did not abuse his discretion in reversing the board's finding that appellant was suitable for parole, why "some evidence" in the record supports the Governor's determination, and why Lee is not entitled to release on parole. We issued the order and set the matter for argument.

DISCUSSION

1. The Board Grants Parole

A defendant sentenced to an indeterminate life term is normally entitled to parole if the Board of Parole Hearings finds he does not pose an unreasonable risk to public safety. (Pen.Code, § 3041, subd. (a).) California Code of Regulations, title 15, section 2402 establishes the "general guidelines" for determining whether a defendant poses such a danger. Section 2402 sorts the factors relevant to assessing a defendant's risk into two categories: those that tend to show unsuitability for parole, such as an especially atrocious crime by the defendant and a history of violence; and those factors that tend to show suitability, such as lack of a criminal history, good prison behavior, and remorse.²

At Lee's parole hearing, the board found every factor supported his suitability for parole. He was born in 1924 and, until his crimes against the Soongs when he was 65 years old, had no prior criminal history. He acknowledged his guilt by having entered into the plea bargain that sent him to prison for 17 years to life. At his parole hearing, he reiterated, "I admit that I was wrong and I don't want to recall but everyday I confess to the Lord because I'm so painful inside my heart. I'm so sorry because I did wrong to the Soong husband and wife and also to the government of California."

In addition, while serving his prison sentence, Lee had a spotless discipline record except for one smoking violation in 1998. He also improved himself by taking adult education classes, including English as a second language. Every prison psychological evaluation of him, stretching back more than a decade, found he posed little, or no, danger to public safety if released. A 1992 report described him as harboring "less of a risk of violence than the average inmate." His 1997 evaluation stated it was "likely that his potential for repeating a violent crime is exceptionally low[,]" and a report in 1999 stated his risk was in the "very low range." A 2003 evaluation noted Lee's nature as "consistently a very low level of risk for future violence." And the most recent report prepared in November 2004 for Lee's January 2005 parole hearing found "a very low risk of violence to the community," reinforced by his deteriorating health and limited physical capabilities.

Lee's health problems were numerous, resulting in his total disability. He suffered from diabetes and high blood pressure. His left eye was blind and he had blurred vision in his right. He could not get around easily and often required assistance. Lee's healthcare providers noted that although he was not likely to die within six months, which would entitle him to compassionate release, they believed he "wouldn't live more than a year in his current conditions the way that they are and they don't believe that there's anything that they can do to assist him in that process."

Finally, the board noted, Lee had realistic plans for the short time remaining to him after his release. The Immigration and Naturalization Service had placed a hold on him as a deportable alien. If ordered deported, he was willing to accept voluntary deportation and return to his Chinese homeland to live with his brother. If, on the other hand, he were allowed to remain in the United States, he planned to live with his son.

2. The Governor Reverses the Board

In reviewing the board's decision, the Governor must consider the same factors as the board. (Cal. Const., art V, § 8, subd. (b); In re Rosenkrantz (2002) 29 Cal.4th 616, 676, 128 Cal.Rptr.2d 104, 59 P.3d 174 (Rosenkrantz).) The Governor did so here and accepted the factual underpinnings of the board's findings. He noted, for example, that Lee had no criminal record other than his crimes against the Soongs, had no history of substance abuse, and had been discipline-free while in prison. The Governor acknowledged Lee's efforts to improve himself in prison through adult education and English language classes. The Governor also noted Lee's poor health, realistic plans for himself after parole, and supportive family. Finally, the Governor also observed that "mental-health professionals have assessed his current potential for violence . . . as being low and indicate there is little risk of recidivism due to his age, health problems, and maturity."

Although the Governor must consider the same factors as the parole board, he may weigh those factors differently than did the board. (Cal.Code Regs., tit. 15, § 2402, subds. (c) & (d).) Thus, he has the discretion to be "more stringent or cautious" in determining whether a defendant poses an unreasonable risk to public safety. (Rosenkrantz, supra, 29 Cal.4th at p. 686, 128 Cal.Rptr.2d 104, 59 P.3d 174.) Here, the Governor exercised his discretion to reverse the board despite his agreement with its other findings. In doing so, he cited two reasons. First, Lee's crimes were in the Governor's view "atrocious," involving more than the minimum conduct needed to commit his offenses. Second, Lee's admission of culpability was too recent to count much in the Governor's estimation.

The Attorney...