Powell, In re

• Decision Date: 27 June 1988
• Citation: 248 Cal.Rptr. 431,45 Cal.3d 894,755 P.2d 881
• Court: California Supreme Court
• Parties: , 755 P.2d 881 In re Gregory Ulas POWELL on Habeas Corpus. Crim. 24441.

Page 431

248 Cal.Rptr. 431

45 Cal.3d 894, 755 P.2d 881

In re Gregory Ulas POWELL on Habeas Corpus.

Crim. 24441.

Supreme Court of California In Bank.

June 27, 1988.

As Modified June 30, 1988.

Dennis P. Riordan and Riordan & Rosenthal, San Francisco, under appointment by the Supreme Court, for respondent.

Martin K. Maurer, as amicus curiae on behalf of respondent.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Ann K. Jensen, Martin S. Kaye and Dane R. Gillette, Deputy Attys. Gen., for appellant.

Robert H. Philibosian and Ira Reiner, Dist. Attys. (Los Angeles), Harry B. Sondheim, Donald J. Kaplan, Patrick Moran and Richard W. Gerry, Deputy Dist. Attys., (Los Angeles), Stapleton & Nachlis, Marvin B. Nachlis, Christopher N. Heard and Kent S. Scheidegger, Sacramento, as amici curiae on behalf of appellant.

MOSK, Justice.

Today we are called upon to determine (1) the standard of review to be applied to a parole date rescission by the Board of Prison Terms (BPT or board) ¹ and (2) the sufficiency of the evidence in the present case when viewed in light of that standard.

In 1977 the BPT granted petitioner Gregory Ulas Powell a 1983 parole release date. About one year before Powell was to be released, the BPT rescinded the parole date. After exhausting his administrative remedies, Powell sought a writ of habeas corpus. The superior court, applying the independent judgment standard of review, concluded the rescission was not supported by cause and granted the writ. As will appear, we reverse the order of the Superior Court.

I. FACTS

A. Powell's History

Powell was convicted of first degree murder and sentenced to death for the 1963 murder of a Los Angeles police officer. After the judgment was reversed (People v. Powell (1967) 67 Cal.2d 32, 59 Cal.Rptr. 817, 429 P.2d 137), he was retried and again convicted and sentenced to death. The sentence was later modified to life imprisonment. (People v. Powell (1974) 40 Cal.App.3d 107, 115 Cal.Rptr. 109.) ²

During the early years of his imprisonment, ³ Powell participated in numerous escape attempts and other disciplinary violations. Thus in January 1967, he obtained hacksaw blades and sawed through the bars of his cell at San Quentin; he eluded officers for several hours before being recaptured. Six months later, while Powell and Smith awaited transfer to Los Angeles for retrial, a guard intercepted notes from Powell to Smith relating to a plan to escape from Los Angeles County jail. In June 1968, while Powell was proceeding in propria persona at the retrial in Los Angeles, a woman acted as his runner to bring him legal documents and supplies. He persuaded her to smuggle guns into the jail; she was apprehended delivering a typewriter in which three loaded guns were hidden. ⁴ In April 1969, still in Los Angeles, Powell and five other inmates obtained a contraband tool and removed the screws holding a large metal plate over a day room window that opened onto the street. Investigating officers found a file and part of a hacksaw blade secreted behind the plate. There were a number of other disciplinary infractions while Powell was on death row.

Following his release from death row to the general prison population in 1972, Powell ceased being a problem inmate. He received favorable reports concerning his handling of money in the prison canteen, his ability to cope with incidents of hostility, and his success in dealing with stressful questioning from the media. His psychiatric reports stated he had improved substantially and was continuing to improve. The record indicates his good conduct has continued to the present time.

B. The BPT's Actions

In 1977 the BPT held a parole consideration hearing and granted Powell a June 1983 parole release date under the Indeterminate Sentence Law. It held a second hearing in 1979 under the Uniform Determinate Sentencing Act, and on that occasion granted him a 1986 release date. Since the earlier of the two dates was controlling, his release date remained that set by the first panel. The BPT held progress hearings in 1979 and 1980, and ultimately advanced his parole date to June 13, 1982.

In April 1980, Powell was transferred from San Quentin to the California Medical Facility at Vacaville, where he was evaluated by a correctional counselor. The counselor's report, in contrast to earlier favorable psychiatric reports, expressed doubt about his suitability for parole. The report stated that although his antisocial personality was "seemingly" improved, his behavior and potential for violence could be unpredictable in stressful situations.

In response to the counselor's report, the BPT postponed a scheduled progress hearing and sought additional information. At the board's request, Vacaville staff psychiatrist Dr. Wilson Yandell interviewed Powell and prepared a report. The report supported his parole. Yandell stated that Powell's psychiatric condition had "improved greatly," that his previous impulsive and unstable behavior had become "less and less characteristic with maturation and change," and that he was likely to hold his psychiatric gains after release into the community. Yandell conceded that psychiatrists could not reliably predict an inmate's potential for violence after release; nevertheless, he stated that Powell's psychiatric improvement, strong personal support system, and plans for a structured lifestyle reduced the likelihood that he would engage in violent behavior if paroled.

One month after Dr. Yandell filed his report, the movie, The Onion Field, depicting Powell's crime, aired on national television. At a progress hearing shortly thereafter, the BPT received communications from the Governor of California, the District Attorney of Los Angeles, and the Los Angeles City Council, opposing Powell's scheduled parole. At the conclusion of the hearing the BPT scheduled a rescission hearing to consider: (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, the BPT learned that previous hearing panels had investigated and rejected the two allegations of sexual misconduct. The first matter, based on a letter by former guard Gravitt, had been rejected by the earlier panels after the deputy warden, acting on the results of his own investigation, removed the report from Powell's file. ⁵ The second matter had also been rejected when the prior panels found no evidence of sexual misconduct. On learning of the earlier investigations and conclusions, the board determined it would not consider these matters further.

The BPT considered two additional psychiatric reports at the rescission hearing. The first, prepared by a team of six psychiatrists and five psychologists at the Northern Outpatient Clinic, favored rescinding Powell's parole. The group did not interview Powell, but thoroughly reviewed his extensive case file. According to the report signed by Chief Psychiatrist Diane Sutton, M.D., the staff unanimously concluded that significant doubt remained regarding Powell's ability to adjust successfully on parole and to refrain from engaging in violent acts or reverting to a criminal lifestyle. The report opined that his improvements, made in an institutional setting, might well be superficial and "not likely to hold once he is released from confinement."

The Sutton report expressed three specific concerns. First, it stated that the Gravitt letter raised questions "about the stability and good influence of [Powell's] family." ⁶ Second, the report asserted that Powell's employment plans--especially in light of his lack of job experience or vocational training--were likely to subject him to considerable stress when he attempted to earn a living. ⁷ Finally, the report expressed concern that no follow-up work regarding possible brain damage had been done since 1964, three years after it was determined Powell had suffered brain atrophy. ⁸ In this connection the report recommended that extensive psychological testing and neurological evaluation be completed prior to any parole.

Dr. Sutton testified that her group did not strongly disagree with Dr. Yandell's earlier more positive report. The difference in viewpoint, she stated, was primarily a result of her group having had access to certain information--i.e., the reports of sexual misconduct and the parole investigation report on Powell's employment prospects--that Dr. Yandell had not seen. She stated the report would have been more positive had her group not assumed the sexual allegations were true; she did not, however, say that the group would have supported parole under those circumstances.

The second report before the BPT, prepared by Vacaville Chief Psychiatrist Dr Edward South, favored Powell's parole. After examining Powell, interviewing his therapist, and studying his file, Dr. South concluded that his violence potential had decreased over time. He stated that Powell showed an increased empathy for and tolerance of others, an improved ability to make rational decisions, and a greater capacity to deal with emotional stress. These factors, according to Dr. South, enhanced "the favorable aspects of the prognosis already set forth on previous reports." He emphasized, however, that psychiatric prediction of violence is subject to significant limitations due to the lack of meaningful comparative data. Dr. South did not recommend further neurological evaluation, because he felt Powell had shown no symptoms indicative of neurological change since his original tests.

The BPT ordered Powell's parole rescinded for two reasons. First, it found that the Sutton report raised significant doubt about his violence potential. The board recognized that the Yandell and South reports supported his release, but stated that the reports' acknowledged inability to predict his...