In re Weider

• Decision Date: 05 December 2006
• Docket Number: No. H030203.,H030203.
• Citation: 52 Cal.Rptr.3d 147,145 Cal.App.4th 570
• Court: California Court of Appeals Court of Appeals
• Parties: In re Bernard John WEIDER, on Habeas Corpus.

52 Cal.Rptr.3d 147

145 Cal.App.4th 570

In re Bernard John WEIDER, on Habeas Corpus.

No. H030203.

Court of Appeal, Sixth District.

December 5, 2006.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Anya M. Binsacca, Supervising Deputy Attorney General, Scott M. Mather, Deputy Attorney General, Attorneys for Plaintiff and Appellant Scott P. Rawers.

William J. Schmidt, Attorney for Defendant and Respondent Bernard J. Weider.

PREMO, J.

In 1987, Bernard John Weider was convicted of second degree murder (Pen.Code, § 187) and two counts of assault with a firearm (id., § 245, subd. (a)(2)). He was sentenced to an indeterminate prison term of 15 years to life. Weider is now 69 years old, a model prisoner with no record of discipline while in prison and no criminal history other than the offenses for which he was incarcerated.

In 2002, the Board of Prison Terms (Board)¹ refused to set a parole date and Weider petitioned the trial court for a writ of habeas corpus. The trial court issued the writ and instructed the Board to conduct a new hearing. This court affirmed the trial court's order in an unpublished opinion filed January 10, 2005. (In re Weider, H027042, 2005 WL 40042 (Weider I).)²

On rehearing, the Board again found Weider unsuitable for parole and Weider again petitioned the trial court for a writ of habeas corpus. The trial court again granted the petition and ordered the Board to hold a further hearing, this time instructing the Board to consider only new evidence. Warden Scott P. Rawers appeals. We granted appellant's request for a writ of supersedeas, staying the order of the trial court pending our decision in this case.

I. SOCIAL HISTORY

Weider was born in 1937. His mother and father separated when he was young and he grew up in a stable home with his mother and maternal grandparents. Weider was in the United States Air Force from 1955 through 1959 and served in the reserves for three more years after that. He was hired by General Electric shortly after leaving the Air Force and worked there for 24 years, advancing to the position of senior software engineer. While working full time he attended night school and earned two associate degrees, one in business and one in business data processing. He has no record of any crime committed while a juvenile and no history of prior convictions other than the crimes for which he was incarcerated. He never used illegal drugs. He had smoked cigarettes occasionally and had used alcohol. Weider had been married only once, for 26 years, and there were four children of the marriage. He is closest to his eldest daughter who lives in Red Bluff, California.

II. THE COMMITMENT OFFENSE

The circumstances of the commitment offense were described in Weider I:

"On Memorial Day 1985, [Weider], then a 49-year-old engineer, and his wife of 26 years, Susan, [footnote omitted] helped her coworker of many years, George Laird, move out of his marital home in the course of separating from his wife. Susan did not come home that night, claiming to have fallen asleep on Laird's couch. The next day, she and the youngest daughter, Camille, 21, moved in with Laird.

"Almost two years later, around 3:00 p.m. on February 15, 1987, Susan and Laird, frequent patrons of the Jubilee Grill in San Jose, [footnote omitted] were at the grand reopening. About 100 persons were there. [Weider], who stopped in to get something to eat, went to Susan's and Laird's table to talk to them. He addressed Laird as `Deacon' which upset Susan. She began yelling and told [Weider] `everything was all [his] fault, [he] should get out of her life and get the hell out of the restaurant.' [Weider], who had made two previous unsuccessful suicide attempts, decided to shoot himself in front of her. He left the bar, went to his car, and came back with a .380-caliber automatic gun loaded with a 5-round clip in his pocket. The gun had been purchased legally and was registered, but [Weider] did not have a concealed weapons permit. [Weider] sat down behind Susan and asked `Do we talk now or do I kill George and myself?' Laird asked Susan if she had gotten the restraining order yet. [Weider] stood up, Laird stood up, [Weider] removed the gun from his pocket, fired twice at Laird, and missed. Laird ran to the back of the bar and Susan started wrestling with [Weider]. [Weider] had put the gun to his head and Susan pleaded with him not to shoot himself while continuing the struggle. Laird came back to the front of the restaurant, grabbed a bottle from the bar, and hit [Weider] over the head with it, shattering it. Susan stepped back, Laird grabbed for the gun, and he and [Weider] struggled over it. Patrons of the bar started to help Laird, and as [Weider] and Laird struggled on the floor, several shots were fired. Laird received two shots, one a contact wound, at `close range' and died. Two other patrons were shot, one twice.

"Susan's departure had been `a bolt out of the blue' which sent [Weider] into a deep depression. However, in the ensuing months, he and Susan `developed fairly cordial relations[]' and he took her to dinner or a movie occasionally, repaired her brakes, gave her a ride to medical appointments, and shared holidays and birthday celebrations with her and their children. Suddenly, however, she stopped accepting invitations and [Weider] got more and more depressed. In January 1986, Susan responded to a dinner invitation with the disclosure that `she never wanted to hear from [Weider] or see [him] again.' He continued to attempt reconciliation with Susan so she applied for a restraining order to stop him from bothering her. They were divorced in June 1986. The next time [Weider] saw Susan after the January 1986 conversation was in the Jubilee Grill on February 15,1987.

"[Weider] had focused most of his anger on Laird. He felt Laird was a hypocrite based on his mistaken belief that Laird was a church deacon while at the same time committing adultery with [Weider]'s wife. At some point, [Weider] told Laird he would like to kill him.

"[Weider] also told Susan he was going to kill himself and he first attempted it on October 10, 1985. He called Susan at work to say `farewell' before shooting himself with a rifle. However, his son came home before he could complete the act. A month or two later, he tried to hang himself with a necktie, but it hurt too much. The incident on February 15 was his third attempt.

"[Weider] had had a handgun at home, but his youngest daughter removed it because she thought he was suicidal. [Weider] bought another which he shot at a pistol range with his son. At first, he kept it at home, but then it occurred to him that his daughter might remove that one also, so he kept it in the trunk of his car with its ammunition."

III. PROCEDURAL BACKGROUND

Weider was charged with murder and two counts of assault with a firearm. Each count included an enhancement alleging that Weider had personally used a firearm in the commission of the offense. (Pen.Code, § 12022.5.) The prosecutor stipulated that the murder charge was for second degree murder and offered to support a sentence of 15 years to life if Weider would plead to the crimes as charged. Accordingly, Weider entered guilty or no-contest pleas to the three counts and was sentenced to prison for 15 years to life. The court did not impose additional time for the enhancements.

Weider's minimum eligible parole date was February 15, 1997. His initial parole consideration hearing was held on May 8, 1996; parole was denied. He stipulated to a two-year denial in lieu of a second hearing on November 10, 1999. His third scheduled hearing was held on May 13, 2002.

A The 2002 Hearing

At the 2002 hearing the evidence showed that Weider had a virtually unblemished record of good behavior while in prison, having received only two form-128-A counseling "chronos," the last in 1992.³ He had participated in vocational training and in stress reduction, anger management, and conflict resolution groups. The examining psychologist reported that "psychological factors are not involved or are not present" and that Weider "would be a low risk" if paroled. The Board noted that Weider had supportive family in the last county of legal residence and elsewhere in California, that he was of retirement age, and that he had sufficient pension and Social Security income to support himself.

In spite of the fact that there was evidence to support every relevant suitability factor listed in the Board's regulations, the Board found Weider unsuitable for parole based upon its finding that "[t]he commitment offense was carried out in an especially cruel and callous manner. Multiple victims were attacked, injured, and killed in the same incident. The incident was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering." The Board also noted that "the prisoner does need continued self-help and therapy programming in order to face, discuss, understand the causative factors that led to this life crime and to explore his culpability into this life crime. Until progress is made, he continues to be unpredictable and a threat to others." The Board noted that the Santa Clara County District Attorney and Laird's next of kin opposed a finding of suitability.

Immediately following the reading of the decision Deputy Commissioner Mackenberg commented, "I'm not going to ask you to do any more therapy. The long and short of it is I'm not sure you can find it in this place at this time, but I'd like to see you finish off that drafting thing" because it would be "a good intellectual exercise." Presiding Commissioner Bordonaro added, "I don't know if therapy is in order, but I believe that if you can get into one of Dr. Tolsen's groups, one of the lifer's groups, one of the process groups he has, I think it would help—be helpful to you. Maybe just to be able...