In re Rosenkrantz

• Decision Date: 27 April 2000
• Docket Number: No. B138635.,No. B132370.,B132370.,B138635.
• Citation: 95 Cal.Rptr.2d 279,80 Cal.App.4th 409
• Court: California Court of Appeals Court of Appeals
• Parties: In re Robert ROSENKRANTZ, On Habeas Corpus. C.A. Terhune, as Director, etc., et al., Petitioners, v. The Superior Court of Los Angeles County, Respondent; Robert Rosenkrantz, Real Party in Interest.

95 Cal.Rptr.2d 279

80 Cal.App.4th 409

In re Robert ROSENKRANTZ, On Habeas Corpus.

C.A. Terhune, as Director, etc., et al., Petitioners, v. The Superior Court of Los Angeles County, Respondent;

Robert Rosenkrantz, Real Party in Interest.

No. B132370.

No. B138635.

Court of Appeal, Second District, Division 1.

April 27, 2000.

Rehearing Denied May 23, 2000.

Review Denied July 12, 2000.^*

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Paul D. Gifford, Senior Assistant Attorney General, Darrell L. Lepkowsky, Supervising Deputy Attorney General, Rita Lane Medellin and Robert D. Wilson, Deputy Attorneys General, for Petitioners.

No appearance for Respondent Superior Court.

Rowan K. Klein, for Respondent Robert Rosenkrantz and Real Party in Interest.

MIRIAM A. VOGEL, J.

In 1986, Robert Rosenkrantz was convicted of second degree murder, with a gun use allegation found true. He was sentenced to state prison for a term of 15 years to life, plus 2 years for his use of a gun. Following a series of hearings at which Rosenkrantz was found "unsuitable" for parole, he filed a petition for a writ of habeas corpus in which he asked the superior court to compel the Board of Prison Terms to find him suitable for parole. Over the Board's opposition, the superior court granted Rosenkrantz's petition on the ground that there was no evidence to support the Board's findings of unsuitability. The superior court ordered the Board to hold a new hearing and later issued other orders in furtherance of the enforcement of the earlier orders. The Board of Prison Terms filed an appeal, and later filed a petition for a writ of mandate. In substance, we affirm.

FACTS

The Circumstances of the Offense. Robert Rosenkrantz graduated from high school on June 21, 1985. That night, he hosted a party at his parents' beach house. Rosenkrantz's brother (Joseph) and Joseph's friend (Steven Redman), acting to confirm their suspicion that Rosenkrantz was homosexual, went to the beach house, surreptitiously watched through a window for about an hour, then burst into the house, screaming "faggots" and attacking Rosenkrantz and his friends. In the ensuing melee, Rosenkrantz's nose was broken. The next day, Joseph and Redman (knowing that Rosenkrantz did not want his parents to discover their son's homosexuality) told Rosenkrantz's parents that Rosenkrantz was gay. Rosenkrantz asked Joseph and Redman to tell Rosenkrantz's parents that it had all been a joke. Joseph agreed but Redman refused.

Rosenkrantz's father ordered him out of the house, and Rosenkrantz slept in his car that night. He was devastated. His father hated homosexuals, and they lived in a community where gays were considered "fair game," a view shared by Joseph and Redman. The next day (Monday), Rosenkrantz practiced his shooting at a firing range. He purchased an Uzi, which he picked up on Wednesday. On Thursday evening, Rosenkrantz parked in front of Redman's residence and slept in his car. On Friday morning, when Redman came out of his house, Rosenkrantz confronted Redman, displayed the Uzi, and demanded that Redman retract the statements he had made to Rosenkrantz's parents. Redman refused, laughed, and called Rosenkrantz a "faggot." Rosenkrantz shot Redman 10 times, then drove off.

Three weeks later, Rosenkrantz turned himself in to the police. He was charged with first degree murder. In 1986, a jury expressly acquitted him of first degree murder but found him guilty of second degree murder (and found true an allegation that he had personally used a firearm). Rosenkrantz was sentenced to state prison for a term of 15 years to life plus two years. We affirmed his conviction. (People v. Rosenkrantz (1988) 198 Cal. App.3d 1187, 244 Cal.Rptr. 403.)

The June 1996 Parole Suitability Proceedings. Rosenkrantz was received by the Department of Corrections in 1986. His first parole hearing was held in December 1994, and his minimum parole eligibility date was fixed at January 23, 1996. (Pen.Code, §§ 3040 [the Board of Prison Terms has the power to allow prisoners serving indeterminate sentences "to go upon parole outside the prison walls and enclosures"], 3041 [in the case of prisoners except those serving terms of life without the possibility of parole, the Board of Prison Terms "shall normally set a parole release date" one year prior to the prisoner's minimum eligible parole release date].)¹ Rosenkrantz's next parole suitability hearing was held in June 1996, at which time the Board of Prison Terms hearing panel (Commissioners Ron Koenig and Manuel Guaderrama, and Deputy Commissioner Patricia Cassady) found Rosenkrantz suitable for parole and recommended a release date for the reasons set out in the margin.² In August, the Decision Review Unit (comprised of Commissioners Thomas Giaquinto and Arthur Van Court, and another commissioner) disapproved the recommended action for the reasons set out in the margin.³ As a result, no parole date was set.

The December 1996 Parole Suitability Proceedings. A rehearing was held in December 1996. At that time, the panel had before it a letter from Sergeant William P. McComas, the Sheriffs Department Homicide Bureau detective who had conducted the 1985 investigation. Excerpts from that letter, which explain the discrepancies noted by the Decision Review Unit, are set out in the margin.⁴ Commissioner Van Court, a member of the Decision Review Unit panel that disapproved the earlier suitability recommendation based on "additional information," was a member of the rehearing panel. The other members were Commissioner John Gillis and Deputy Commissioner Mike Douglas. When Rosenkrantz's lawyer questioned the propriety of Commissioner Van Court's participation, counsel was told there was no conflict because the Decision Review Unit had not decided whether "the prisoner was suitable for parole," and had reviewed only "the administrative portion" of the prior proceedings. (See § 2250 [a prisoner is entitled to a hearing by an impartial panel].) For the reasons set out in the margin, the rehearing panel found that Rosenkrantz was not suitable for parole.⁵

The August 1997 Parole Suitability Proceedings. Another hearing was held on August 7, 1997. The members of the panel were Commissioners Van Court, Giaquinto (who, with Van Court, had sat on the Decision Review Unit that disapproved Rosenkrantz's earlier grant of parole), and Carol Bentley. Commissioner Giaquinto presided. In addition to the information presented for the previous hearings, the August 1997 panel had before it a current recommendation for parole from Rosenkrantz's correctional counselor,⁶ a June 1997 "Psychological Council Evaluation for the Board of Prison Terms" that was wholly favorable to Rosenkrantz,⁷ and several letters of support.⁸ Through a representative, District Attorney Gil Garcetti informed the Board that he was "not opposed to this man receiving a parole date." There was no negative information presented.⁹ For the reasons set out in the margin, the panel concluded that Rosenkrantz was not suitable for parole.¹⁰

August 1998 Parole Suitability Proceedings. Another suitability hearing was held on August 18, 1998. Commissioner Giaquinto was on the panel again, this time joined by Commissioner Manuel Ortega and Deputy Commissioner Cassady. By a vote of two to one (the dissenter was Deputy Commissioner Cassady), Rosenkrantz's request for a suitability finding was again denied.¹¹ Presiding Commissioner Ortega stated the decision this way: "[T]he Panel has reviewed all the information received from the public and has determined that you're not suitable for parole. You would pose an unreasonable risk of danger to society. The number one reason was the offense was carried out in a manner which exhibits a callous disregard for the life and the suffering of another. These conclusions are drawn from the Statement of Facts where the prisoner laid in wait for the victim to come out. ... He confronted him and, during the course of the confrontation, an argument ensured [sic ] and the victim was subsequently shot ten times...." (Emphasis added.) Deputy Commissioner Cassady then explained her reasons for finding Rosenkrantz suitable for parole; after which Commissioner Giaquinto explained his reasons for joining with Commissioner Ortega.

At the conclusion of the commissioners' remarks, Rosenkrantz's lawyer expressed concern that "some Commissioners, either consciously or subconsciously, [were] trying this man as a first degree...." Commissioner Giaquinto interrupted to say, "We're not here to do that." Presiding Commissioner Ortega said, "We're going to go off the record now," then denied counsel's request to remain on the record. There were no further recorded proceedings.¹²

The Habeas Corpus Proceedings. Meanwhile, in June or July 1998, Rosenkrantz had filed a petition for a writ of habeas corpus in which he sought review of the parole suitability decisions made in December 1996 and August 1997. The Board of Prison Terms answered. The petition was put over from time to time and ultimately heard after the August 1998 hearing at which Rosenkrantz had once again been found unsuitable. In March 1999, the superior court granted Rosenkrantz's habeas corpus petition and ordered the Board of Prison Terms to set a date commensurate with Rosenkrantz's conviction of second degree murder. The superior court's findings and reasons were stated in a 17-page opinion, excerpts of which are set out in the margin.¹³

The Board of Prison Terms sought reconsideration. On April 30, after a further hearing, the superior court issued a modified order directing the Board of Prison Terms that, "[u]nless there are changed circumstances or new information ... that was not previously presented to the Board," the Board was "to set a parole date" for Rosenkrantz. The order states that the parole date is to be commensurate with Rosenkrantz's conviction of second degree murder, not...