In re Stevenson
| Decision Date | 09 January 2013 |
| Docket Number | H037850 |
| Parties | In re JAMES L. STEVENSON, on Habeas Corpus. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. 203910)
Respondent Rick Hill, Warden at Folsom State Prison, appeals from the superior court's December 9, 2011 order granting inmate James L. Stevenson's petition for writ of habeas corpus and compelling the Board of Parole Hearings (Board) to provide petitioner a new parole consideration hearing.1 Petitioner James L. Stevenson is currently serving an indeterminate life term for a 1998 conviction of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)).2
We reverse the court's order granting habeas relief.
On May 20, 2011, James L. Stevenson filed a petition for writ of habeas corpus challenging the Board's June 17, 2010 denial of parole on the grounds that (1) the Board had found him unsuitable for parole without "some evidence" of current dangerousness and (2) the Board had "failed to provide a nexus or reasoning between the negativefactors it found and its conclusion that petitioner is currently dangerous." In support of the first ground, the petition stated among other facts: "The Board claimed my risk assessments were negative, but they placed me in the low/moderate range for risk of violent recidivism, with any elevation beyond low risk being caused by historical factors as explained in the 2009 report." In support of the second ground, the petition stated among other facts: "The Board characterized petitioner's most recent psychological reports as negative, when both assessed petitioner's risk of further violence as low to moderate."
The following documentary evidence was submitted in support of the petition: a transcript of the June 17, 2010 parole consideration hearing, Dr. Black's Comprehensive Risk Assessment prepared for the Board, dated September 21, 2009, Dr. Lehrer's Subsequent Risk Assessment prepared for the Board, dated May 20, 2010, and a superior court order, filed March 25, 2011, vacating a previous parole decision of the Board.3
The superior court issued an order to show cause (OSC), indicating that, in its "experience," an inmate's low to moderate risk for violence if released into the community "has often been based on predomina[nt]ly static factors." The court reasoned as follows: The court then observed: "Because none of the above observations are evidence in this case, it will be necessary to receive declarations from experts, and references to academic materials, in order to evaluate the true significant of a 'Low to Moderate Risk' assessment such as Petitioner's."
Respondent filed a return, alleging, among other facts, that "the Board relied on various factors to deny parole, including Stevenson's past criminality, his history of drug and alcohol abuse and sales, his past and present mental state and attitude towards the crime, unfavorable psychological assessments, institutional disciplinary history, his fairly limited institutional programming, and, to some extent, his commitment offense." The return alleged that "some evidence in the record is probative of Stevenson's current risk to the public, and therefore, the Board's decision satisfies due process." He also averred that "the Board is vested with authority to weigh Stevenson's psychological risk assessments in determining his current dangerousness." It also denied that "the Board's decision was arbitrary, capricious, or contrary to law" and denied that the Board failed to provide a nexus between the factors upon which it relied and its conclusion that petitioner presents an unreasonable risk to public safety.
In support of the return, respondent filed an abstract of judgment of the 1997 commitment offense, the probation officer's report for sentencing on that offense, the life prisoner evaluations for the initial parole consideration hearing and subsequent parole consideration hearings, a rules violation report (RVR) charging defendant with destruction of state property in 2002 and the guilty finding, an RVR charging defendant with possession of a controlled substance in 2000 and the guilty finding, an RVR report charging defendant with improper conduct or excessive contact with his wife during a visit in 1999 and the guilty finding, documented custodial counseling (CDC Form 128-A), a redacted comprehensive risk assessment for a different inmate (submitted to show the definitions presently being used by evaluators in their reports), and two professional articles regarding risk assessment.
Petitioner Stevenson filed a denial (traverse) to the return on October 27, 2011. Although the return admitted that the Board relied on various factors to deny parole, it alleged that none of the Board's reasons constituted some evidence of his current dangerousness. It alleged that the 2009 risk evaluation "erred by scoring him a 'moderate'risk on the LS/CMI, when he scored in the 15th percentile, and the instrument stated that a score below the 30th percentile reflects a low risk." It also alleged that "the HCR-20 is not relevant to him because it is normed on a population of involuntarily confined mental patients, to which he is dissimilar because he has no psychiatric history or serious mental disorder." It further averred that petitioner's moderate risk for violence based on the HCR-20 was due to the fact that half of the items considered were historical and "not subject to reduction despite the passage of time." The return stated that the Board's decision was arbitrary and capricious.
In support of the denial, he filed the declaration of Melvin Macomber, Ph.D., a psychologist, regarding CDCR psychological evaluations. Dr. Macomber stated that Level of Service (LS) inventories were developed to assess recidivism potential, not risk of future violence. He explained in his declaration that a "score of 15% of incarcerated offenders is in the low risk range" while a score of "30% to 70%" would be moderate. Dr. Macomber indicated that the use of the HCR-20 to determine potential for violence was inappropriate because the "normative sample was taken from psychiatric populations" and there were "absolutely no validation studies in the literature" for applying that assessment to life term inmates who have spent years in custody and are not part of that psychiatric population. In his view, petitioner's moderate risk of violence based on the HCR-20 is "irrelevant" and "meaningless" since he has no psychiatric history or current psychiatric problems and impliedly does not "resemble[] the normative population . . . ."
By order filed on December 9, 2011, the superior court granted the petition and directed the Board to provide petitioner Stevenson with "a new hearing, comporting with due process, within 100 days" of its order.
The court provided an extensive statement of decision, ultimately concluding that "the Board did not employ the appropriate analytical framework in reaching itsdecision . . . ." It granted the petition and directed the Board to hold a new hearing that comported with due process within 100 days of its order.
Respondent filed a notice of appeal.
The Presiding Commissioner described the commitment offense for the record. As the victim was returning to his vehicle at almost midnight on November 22, 1997, he was approached by two men, petitioner and a man later identified as Sanders, wearing dark clothing and ski masks. Sanders shoved a semi-automatic weapon into the victim's ribcage and asked if he had any money. When the victim replied in the negative, petitioner reached into the victim's pocket and removed a wallet and a pager. Petitioner then asked the victim how many people were in his house and whether there was any money in the house. Although the victim said there was no money in the house, petitioner told the victim to take them to his residence and the victim was pushed toward the house.
As the group was walking down the sidewalk and approaching an intersection, a police car was observed proceeding southbound. Petitioner said that "the cops are coming" and turned and began walking away from the victim in a westbound direction. Sanders followed petitioner. Petitioner pulled off his mask and the victim saw petitioner's face. When both perpetrators ran northbound on another street, the victim entered his residence and notified authorities. Responding officers apprehended petitioner and Sanders in different locations.
Petitioner acknowledged that Sanders and he followed the victim from the Bay 101 card club. He stated that Sanders had a nine millimeter gun and they were both wearing masks. Petitioner admitted moving the victim against his will but petitioner denied taking the victim to his residence. Petitioner claimed that he had seen someonelooking out a window and had told the victim to move forward because he did not want someone seeing what was going on. He claimed that the victim was moved no more than five feet to an area behind bushes. Petitioner admitted when the police car came, he pulled off his mask, the victim saw his face, and he ran.
Petitioner then acknowledged that he had previously been convicted in 1996 of carrying a loaded firearm in public; h...
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