In re Palmer

• Decision Date: 13 September 2018
• Docket Number: A147177
• Citation: 238 Cal.Rptr.3d 59,27 Cal.App.5th 120
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE William M. PALMER, on Habeas Corpus.

27 Cal.App.5th 120

238 Cal.Rptr.3d 59

IN RE William M. PALMER, on Habeas Corpus.

A147177

Court of Appeal, First District, Division 2, California.

Filed September 13, 2018

O’Melveny & Myers, Cara Gagliano, Megan L. Havstad, Geoffrey Yost, San Francisco, for Petitioner.

Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Jessica N. Blonien and Julie A. Malone, Acting Assistant Attorneys General, Phillip J. Lindsay, Senior Assistant Attorney General, Sara J. Romano and Denise A. Yates, Deputy Attorneys General for Respondent.

Kline, P.J.

This case returns to us from the California Supreme Court for reconsideration in light of its opinion in In re Butler (2018) 4 Cal.5th 728, 230 Cal.Rptr.3d 736, 413 P.3d 1178. For the reasons we will explain, we find Palmer entitled to a new parole hearing due to the failure of the Board of Parole Hearings to comply with a statutory mandate to give "great weight" to certain factors related to Palmer having been a minor when he committed his crime, a matter we found unnecessary to address when the case was first before us.

PROCEDURAL BACKGROUND

In 1988, when he was 17 years old, petitioner William Palmer pled guilty to kidnapping for robbery. Sentenced to life with the possibility of parole, Palmer has appeared before the Board of Parole Hearings (Board) 10 times, without success. At the most recent hearing, on June 2, 2015, the Board denied parole and deferred Palmer’s next parole hearing for five years.

Palmer requested reconsideration pursuant to California Code of Regulations, title 15 (Regs.), sections 2028, subdivision (b), 2041, subdivision (h), and 2042, on the grounds the Board had: (1) wrongfully refused to set a base term and an adjusted base term for Palmer’s commitment offense, and (2) applied the incorrect standard at Palmer’s parole hearing by failing to give "great weight" to the statutory youth offender factors: "the diminished culpability of youth as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased maturity of the individual." ( Pen. Code, §§ 3051, subd. (f)(1), 4801, subd. (c).)¹ In connection with both arguments, Palmer maintained that the Board did not (and cannot) identify substantial countervailing evidence outweighing the three youth offender factors or showing him to be currently dangerous.

The Board denied Palmer’s request for reconsideration in a letter stating that appropriate weight had been given to the youth offender factors at his hearing and that a separate letter would respond to the base term issue. No separate letter was forthcoming.

On December 31, 2015, Palmer filed an original petition in this court based on the stipulation and order regarding settlement filed in In re Butler (2015) 236 Cal.App.4th 1222, 1234, 187 Cal.Rptr.3d 375, which required the Board to adopt and implement procedures for setting life prisoners’ base and adjusted base terms at the initial parole hearing (or, if that hearing had already taken place, the next one), and provided that this court "shall retain jurisdiction of this case until the amended regulations, conforming to the base term setting practices as described in this order, become effective." In an informal response, the Attorney General argued that the Butler settlement did not apply to Palmer because he was a youth offender, and that the Board’s decision to deny parole comported with the requirements of the youth offender statute.

We issued an order to show cause. Six days later, the Board calculated Palmer’s base and adjusted base terms. After receiving the parties’ return and traverse and holding oral argument, we issued our opinion on July 26, 2017, holding that the June 2, 2015, hearing did not comport with the settlement and stipulated order of our court in Butler , and ordering the Board to conduct a new hearing within 120 days in light of the terms it had set for Palmer.

The Board set a hearing date of October 26, 2017, which it then postponed to November 17. On November 15, 2017, the California Supreme Court granted the Board’s petition for review of our ruling, deferred further action on the matter pending consideration of a related issue in the Board’s appeal from our order denying its motion to modify the settlement and stipulated order in Butler . The court also denied as moot Palmer’s motion to compel the Board to hold a parole hearing on October 26, 2017, and stayed our order requiring the Board to conduct a parole hearing for Palmer.

On April 2, 2018, the Supreme Court issued its decision in In re Butler, supra, 4 Cal.5th 728, 230 Cal.Rptr.3d 736, 413 P.3d 1178. Finding that sufficiently material postsettlement changes to section 3041 required modification of the Butler settlement agreement, the court reversed our judgment and ordered the settlement modified to relieve the Board of its obligations to calculate base terms and adjusted base terms. ( Butler , at pp. 747-748, 230 Cal.Rptr.3d 736, 413 P.3d 1178.)

On June 27, 2018, the Supreme Court remanded the present appeal to our court with directions to vacate our decision and reconsider the cause in light of its decision in In re Butler, supra, 4 Cal.5th 728, 230 Cal.Rptr.3d 736, 413 P.3d 1178. Palmer then filed a supplemental brief acknowledging that the Supreme Court’s decision in Butler required us to revise our decision in this case but contending that he remained entitled to relief due to the Board’s failure to afford "great weight" to the youth offender factors, the alternative ground for his petition. The majority of our court had felt it unnecessary to reach the alternative claim because it agreed with Palmer’s contention that the Board violated the Butler settlement. Considering that the ground upon which we initially granted Palmer’s petition has now been rejected by the Supreme Court, and that the alternate claim was fully briefed by the parties but not decided by us, we deem it appropriate to now address Palmer’s claim that the Board failed to give "great weight" to the youth offender factors at his hearing.

FACTUAL BACKGROUND

Palmer was raised primarily by his mother, with only sporadic contact with his father. At some point, his family moved from a low income area to one with "predominantly wealthier kids"; Palmer related that his self-esteem suffered and he committed crimes and used drugs in order to be accepted by his peers, "have the things that they had" and "do the things they were doing." He admitted his first offense, driving without a license, in July 1985. In February 1986, he admitted a violation of Penal Code section 288a, a felony, for his conduct with three minors.² He was placed on probation, which he then violated with two charges of robbery, burglary, and attempted burglary.

Palmer committed his life offense in 1988. His face covered with a ski mask, Palmer lay in wait in a parking garage in an apartment complex with which he was familiar (having previously committed burglaries there). He had taken a bus to this location because he "knew rich people lived there" Brandishing an unloaded .357 revolver he had stolen in a previous burglary, Palmer confronted Randy Compton, and ordered him to turn over his wallet. Compton said he did not have one, and Palmer "spur of the moment" decided to ask if he had a bank card; Compton said he did, and Palmer ordered him to drive to an ATM and withdraw $200. When they arrived at the bank, Compton, an off-duty police officer, drew his gun and fired 15 rounds at Palmer, who was hit in the knee and fled. Palmer was captured shortly thereafter, waived his Miranda rights, and confessed to the crime in an account fully corroborated by Compton.

During his 30 years in prison, Palmer, a high school dropout, obtained a General Education Diploma (GED) and, in 2007 an Associate of Arts Degree from Palo Verde College. The deputy commissioner at the 2015 hearing commented that Palmer had done a "really good job" with his educational upgrade. Palmer learned to paint in prison, joined "Arts in Corrections," and has become an accomplished artist: He has sold some of his art work and has painted three murals on the prison grounds. one of which the deputy commissioner described as "very beautiful," and another of which the presiding commissioner described as "very good work."

With regard to self-help, Palmer was described as "working steadily," his volume of progress "just fine." He has participated in a range of self-help programs, including substance abuse and victims’ impact programs included in the "Long-Term Offender Pilot Program"; courses on conflict resolution and anger management; faith-based self-improvement programs; Narcotics Anonymous (NA); and the "Criminal Gangs and Violence Prevention Program." Palmer has also contributed to the prison community, including tutoring other youth offenders, volunteering as an inmate peer health educator, and participating in the "Visiting Beautification Project."

Palmer’s parole plans were discussed at length at the 2015 hearing and deemed satisfactory. His ultimate plan was to move to Washington State to be with the family of his girlfriend, Alicia Newbill. The Board received many letters of support for Palmer, including letters from his sister, his cousin, his uncle; a person who volunteered to be his Alcoholic Anonymous (AA) sponsor, several people who had known him since elementary school, Newbill and her father and brother. Newbill’s father, who had met Palmer in prison, spoke highly of Palmer’s character, as did her brother, a painting contractor who said he was willing to offer Palmer a job.

At the parole hearing preceding the one now before us, on April 11, 2013, the Board denied parole primarily because of Palmer’s disciplinary violations in prison, which were described as reflecting "serious misconduct while incarcerated." The denial was for five years, but Palmer was successful in having that time advanced. At the present hearing on June 2, 2015, Palmer acknowledged that while he...