In re Richard SHAPUTIS on Habeas Corpus., S155872.

• Citation: 44 Cal.4th 1241,82 Cal.Rptr.3d 213,190 P.3d 573
• Decision Date: 22 October 2008
• Docket Number: No. S155872.,S155872.
• Court: United States State Supreme Court (California)
• Parties: In re Richard SHAPUTIS on Habeas Corpus.

44 Cal.4th 1241

190 P.3d 573

82 Cal.Rptr.3d 213

In re Richard SHAPUTIS on Habeas Corpus.

No. S155872.

Supreme Court of California

Aug. 21, 2008.

Rehearing Denied Oct. 22, 2008. ^*

COPYRIGHT MATERIAL OMITTED.

Law Offices of Marc Elliot Grossman, Marc Elliot Grossman, Upland; and Monica Knox, Assistant Federal Defender, for Petitioner Richard Shaputis.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Anya M. Binsacca, Heather Bushman and Amanda Lloyd, Deputy Attorneys General, for Respondent State of California.

John R. Poyner, District Attorney (Colusa); Bonnie M. Dumanis, District Attorney (San Diego); Albert C. Locher, Assistant District Attorney (Sacramento); Richard J. Sachs, Deputy District Attorney (San Diego); and W. Scott Thorpe for California District Attorneys Association as Amicus Curiae on behalf of Respondent State of California.

GEORGE, C.J.

In 1987, Richard Shaputis (petitioner) was convicted of the second degree murder of his wife, Erma, and was sentenced to an indeterminate term of imprisonment of 15 years to life in prison, and an additional two years because of his use of a firearm in the commission of the offense. In 2006, after several unfavorable parole hearings before the Board of Parole Hearings (Board) ¹ and rulings by the superior court and the Court of Appeal, the Board, in compliance with the mandate of an earlier judicial decision, reluctantly found petitioner suitable for parole and set a parole date. The Governor, however, reversed the Board's decision, concluding petitioner constituted a threat to public safety.

In a petition for writ of habeas corpus, petitioner challenged on several grounds the Governor's decision denying parole. The superior court denied the petition. The Court of Appeal, in a split decision, reversed the superior court and granted the writ, concluding that neither the circumstances of petitioner's crime, nor petitioner's “method of coping with his guilt,” provided evidence supporting the conclusion that petitioner currently would pose an unreasonable risk to public safety.

We granted review to consider the Attorney General's contention that the Court of Appeal majority improperly applied the deferential “some evidence” standard of review. We conclude that the appellate court erred in reversing the Governor's decision. Applying the “some evidence” standard of review as clarified in the companion case, In re Lawrence (2008) 44 Cal.4th 1181, 1190-1191, 82 Cal.Rptr.3d 169, 173, 190 P.3d 535, 539 ( Lawrence ), we conclude that some evidence in the record supports the Governor's conclusion that petitioner remains a threat to public safety in that he has failed to take responsibility for the murder of his wife, and despite years of rehabilitative programming and participation in substance abuse programs, has failed to gain insight into his previous violent behavior, including the brutal domestic violence inflicted upon his wife and children for many years preceding the commitment offense. By statute, it is established that the gravity of the commitment offense and petitioner's current attitude toward the crime constitute factors indicating unsuitability for parole, and because in this case these factors provide evidence of the risk currently posed by petitioner to the community, they provide “some evidence” that petitioner constitutes a current threat to public safety. Accordingly, we reverse the judgment rendered by the Court of Appeal.

I

The facts underlying the commitment offense and the history of petitioner's parole hearings are not in dispute.

A

Petitioner's mother deserted her husband and children when petitioner was nine years of age. Petitioner's father worked long hours and frequently was absent from the home, leaving petitioner to raise himself and his six younger siblings. Petitioner's probation report and 1997 life prisoner evaluation report (LPER) reflect that petitioner stated his father physically abused him. During his 2004 mental health evaluation and at his parole consideration hearing held that year, petitioner denied that any abuse took place.

Petitioner has been married three times. His first marriage lasted nine years, and before ending in divorce the union produced four daughters, one of whom, Annette, remained in her father's custody after the dissolution of the marriage. She recounted that petitioner severely abused her mother, herself, and her sisters. Annette recounted that petitioner once jumped on her mother's stomach, causing her mother to miscarry. If petitioner felt Annette or her sisters had misbehaved, he would hold a knife to their throats. Annette also explained that petitioner was a different person behind closed doors than he was in the presence of other persons, and that he singled out one daughter in particular for abuse because she was the weakest emotionally. Annette reported that her mother divorced petitioner because of this physical abuse.

Petitioner subsequently married his second wife, the victim, Erma, ² and although this marriage lasted 23 years, it too was beset by violence. ³ Petitioner's probation report reflects that Annette told the authorities that before moving out of petitioner's home in 1978, she saw petitioner beat Erma on several occasions and observed large bruises on Erma's body. The 1987 probation officer's report also states that 15 years prior to the murder, petitioner beat Erma so “terribly” that she needed plastic surgery. Two years prior to the murder, Erma complained to petitioner's daughter Sheryl ⁴ that petitioner had beaten her and cracked her ribs. Linda Nguyen, a friend of Erma's, stated that between 1981 and 1986, she observed bruises on Erma every four to six months, and that Erma told her that petitioner flew into rages and beat her. Petitioner's daughter Terry stated that petitioner had threatened Erma with a knife. During petitioner's trial, Erma's parents testified that petitioner had threatened to send Erma “ home in a box.” Approximately 18 months prior to the murder, when they had been drinking and arguing, petitioner discharged a firearm at Erma. ⁵ In the probation report, petitioner is quoted as stating that when Erma slapped him, he “slapped her back.” This information was discussed in detail at both petitioner's 2004 and 2006 parole consideration hearings. None of these incidents resulted in criminal charges.

Petitioner's employment history showed greater stability. He worked for San Diego Gas & Electric as an electrician and fabricator for seven years, owned his own welding business, and worked for Bechtel Corporation as a supervisor for the 13 years preceding the murder.

On the night of the murder, petitioner telephoned 911 at approximately 10:00 p.m., stated he had fought with his wife and killed her, but claimed it was an accident. When the police arrived at petitioner's home, he surrendered without incident. Petitioner, a problem drinker with a history of violence when drunk, was drinking heavily the night of the murder. His blood-alcohol level was between .14 and .24 percent at the time of the shooting. Nevertheless, petitioner appeared completely aware of his surroundings. When the police entered his house, they found Erma's body in the living room with a handgun lying nearby. The arrest report relates that an open box of ammunition was present on a table near the body. The report also states that the gun could not have been fired accidentally, because the hammer was required to be pulled back into a cocked position to enable the trigger to function, and the gun had a “transfer bar” preventing accidental discharge. The coroner's report concluded Erma was killed sometime after 8:30 p.m. by a gunshot wound to the neck. The autopsy examiner concluded that the shot, which entered the neck between the junction of the neck and the jaw, had been fired from close range. ⁶

Although the commitment offense was petitioner's first felony conviction, his record reflects a long and sometimes violent criminal history. Petitioner was arrested in 1966 for check fraud or writing checks on a closed account in violation of Penal Code section 476; this charge was dismissed. In 1975, petitioner was charged with and convicted of failing to make child support payments, in violation of Penal Code section 270, and was placed on three years' formal probation. In 1978, petitioner was arrested for pandering, convicted of an unspecified offense, and sentenced to “30 days work furlough.” Also in 1978, petitioner was charged with raping his 16-year-old daughter, who reported that petitioner raped her twice while he was intoxicated. ⁷ Although petitioner was charged under Penal Code sections 261.3 and 285 with rape by threat and with incest, the charges were reduced to a misdemeanor of soliciting or engaging in a lewd act. He pleaded no contest and was placed on three years' formal probation. This conviction was expunged in 1982. In 1979, petitioner failed to register as a sex offender as required by his 1978 conviction. Petitioner also admitted having once been arrested and fined for driving a motor vehicle while under the influence of alcohol (DUI) when he was 25 years of age, although his 2005 mental health evaluation update states that there is “a history of several arrests for DUI.” ⁸

As reflected in the background discussed above, petitioner has a substantial problem with alcohol. He began consuming alcoholic beverages when he was 18 years of age and describes himself as an alcoholic. Nevertheless, he considers himself to be a “mellow ... outgoing” drinker.

As reflected in the transcript of his 2006 parole consideration hearing, petitioner has had difficulty forming enduring bonds with his family. Petitioner has no contact with his siblings, his four daughters, or his first wife. He has difficulty discussing his daughters' allegations of rape, incest, and domestic violence, finding the...