Powell, In re
| Decision Date | 29 December 1986 |
| Citation | 232 Cal.Rptr. 553,42 Cal.3d 1075 |
| Court | California Supreme Court |
| Parties | Previously published at 42 Cal.3d 1075 42 Cal.3d 1075, 728 P.2d 1188 In re Gregory Ulas POWELL on Habeas Corpus. Crim. 24441. |
Dennis P. Riordan, San Francisco, under appointment by the Supreme Court, for respondent.
John K. Van de Kamp, Atty. Gen., Martin S. Kaye, Ann K. Jensen and Dane R. Gillette, Deputy Attys. Gen., for appellant.
Ira Reiner, Dist. Atty., Harry B. Sondheim and Richard W. Gerry, Deputy Dist. Attys., Los Angeles, Christopher N. Heard, San Jose, Marvin B. Nachlis and Stapleton & Nachlis as amici curiae on behalf of appellant.
In 1977 the Board of Prison Terms (BPT) 1 granted Gregory Ulas Powell a 1983 parole release date. The record before us shows that from 1977 his conduct was exemplary. Nevertheless, just before he was to be released on parole, the BPT rescinded the parole date. The Solano County Superior Court granted a writ of habeas corpus directing the BPT to release him on parole. On the People's appeal from the order granting the writ, the Court of Appeal reversed the order with directions to deny the writ of habeas corpus, and we granted a petition for hearing.
The issues presented are the standard of review to be applied to BPT rescissions of parole dates and the sufficiency of the record to support rescission when tested under the appropriate standard.
Powell was convicted of first degree murder and sentenced to death for the 1963 murder of a Los Angeles police officer. After reversal, he was again convicted and sentenced to death. The sentence was modified to life imprisonment. (People v. Powell (1967) 67 Cal.2d 32, 59 Cal.Rptr. 817, 429 P.2d 137; People v. Powell (1974) 40 Cal.App.3d 107, 115 Cal.Rptr. 109.) The crime and the trial are the subject of a book entitled The Onion Field by Joseph Wambaugh. 2 In January 1967, Powell and three inmates on death row used hacksaw blades which he had obtained to saw through the bars of his cell. He eluded searching officers for several hours before recapture. In June 1967, while Powell and Smith were on death row awaiting transfer to Los Angeles for retrial, a guard intercepted notes from Powell to Smith relating to a plan to get into the pro per tank at the Los Angeles County jail, apparently to facilitate an escape plan. In June 1968, while Powell was proceeding in propria persona with respect to the retrial, a woman acted as his runner to bring him legal documents and supplies. He prevailed upon her to smuggle guns into the prison. She was apprehended with three loaded guns hidden in a typewriter which was to be delivered to Powell for his use. (The hacksaw blades in the January 1967 incident were smuggled into San Quentin in Powell's typewriter which earlier had been sent out for repairs.) In April 1969 Powell and five other jail inmates obtained a contraband Allen wrench which they used to remove the screws holding a large metal plate covering a day room window which could provide access to an adjacent street. Investigating officers also found a small file and a portion of a hacksaw blade secreted behind the metal plate. In addition, there were a number of disciplinary violations while Powell was on death row.
Following his release from death row to the general prison population in 1972, Powell's conduct changed dramatically. There were numerous favorable chronos concerning his work handling money in the canteen, dealing with incidents of hostility, and dealing with the media under stressful questioning. Psychiatric reports stated that Powell had improved substantially and continued to improve.
In 1977 the BPT held a parole consideration hearing and granted Powell a June 1983 parole release date under the Indeterminate Sentence Law (ISL). A second parole consideration hearing apparently under the Determinate Sentence Law (DSL) was held in 1979, and the panel again found Powell suitable for parole and gave him a 1986 release date. Since the earlier of the two dates was controlling, his release date remained that set by the first panel. After progress hearings in 1979 and 1980, that date was advanced ultimately to June 13, 1982.
The transcripts of the 1977 hearing refer to the 1967 escape attempt. Powell's file contained references to the other 1967 incident and the 1969 incident. There was an investigator's report stating that the file did not refer to the prior smuggling incident.
In April 1980 Powell was evaluated by a correctional counselor at the California Medical Facility at Vacaville, shortly after his transfer there from San Quentin. In contrast to earlier favorable psychiatric reports, the counselor's report raised some question. The report stated that Powell's antisocial personality was "seemingly" improved, that his behavior could be unpredictable in a stressful situation, and that his violence potential is estimated to be unpredictable if unduly stressed.
In response to that report a scheduled progress hearing was postponed to obtain additional information. The report of psychiatrist Wilson Yandell, M.D., who interviewed Powell, was supportive of parole and release. He suggested that Powell's diagnosis be changed from sociopathic personality to borderline personality disorder and listed features of that disorder that had been demonstrated by Powell in the past: impulsivity and unpredictability with potentially self-damaging acts, unstable interpersonal relationships, inappropriate intense anger and loss of control, identity disturbance, and effective instability. Dr. Yandell's review of Powell's record convinced him that Powell had "psychiatrically improved greatly," with the listed features "becoming less and less characteristic with maturation and change." He opined that Powell was likely to hold present gains in the less controlled setting of the community.
Dr. Yandell stated that he saw Powell Dr. Yandell observed that his interview with Powell
In response to the board's specific questions to him about "potential for violence in a free community," Dr. Yandell first noted psychiatrists' poor record in predicting violence. Nevertheless, he enumerated conditions mitigating against the likelihood of future violence by Powell: (1) his "[p]rolonged confrontation with the consequences of past violence and sustained demonstration of a capacity for self-discipline; ..." (2) a strong support system including meaningful relationships to significant others; and (3) plans for a structured lifestyle for organization of his time and energy. Yandell noted that the breakdown of the last two factors would place stressful demands on Powell, as it would on others, but emphasized that his report was intended to support parole and release.
One month after Dr. Yandell filed his report, the movie, "The Onion Field," depicting Powell's crime, was shown on national television. Two weeks later, in February 1982, at the conclusion of a progress hearing where the BPT received communications from the Governor, the District Attorney and the Board of Supervisors of Los Angeles, as well as others, the BPT scheduled a rescission hearing to consider the following matters: (1) psychiatric evaluations as to Powell's violence potential if released; (2) five attempted escapes or escape-related incidents between 1967 and 1969; and (3) two allegations of sexual misconduct in 1978.
At the rescission hearing it appeared that the two incidents indicating possible sexual misconduct had been previously investigated by the BPT. Powell denied any sexual misconduct, and the matters were dismissed. The first, based on a letter by former guard Gravitt, had been investigated by the deputy warden. Gravitt did not claim to have observed misconduct but only circumstances suggesting misconduct may have occurred. After receiving conflicting stories from the staff, he removed the report from the file. On two occasions in 1979, the BPT investigated the report, rejected it, and advanced Powell's parole date for good conduct. The second incident was also rejected when the BPT could not find any evidence indicating sexual misconduct. When, in the midst of the rescission hearing, the BPT became aware of the earlier investigations and the conclusions that there was nothing negative in these matters, the BPT determined that it would not consider them further.
The Northern Outpatient Clinic staff consisting of six psychiatrists and five psychologists reviewed Powell's extensive case file and submitted a report based on the file. That staff did not interview Powell. According to the report signed by Chief Psychiatrist Diane Sutton, M.D., the staff unanimously concluded that questions remained about Powell's ability to adjust successfully on parole and to refrain from violent acts and a criminal life style. The report stated that, although Powell had made some improvement in the institutional setting, the staff believed that improvement might well be superficial and "not likely to hold once he is released from confinement."
The Sutton report expressed three levels of concern: First, the Gravitt letter raised questions "about the stability and good influence of his family."
Second, the Sutton report relied upon a parole investigation report which stated that Powell intended to engage in a dog grooming business but that no such business existed and that Powell had no training or experience in dog grooming. 3 Powell had not received any vocational training and had very little job experience outside of prison,...
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