In re Poole

Petitioner was arrested, pursuant to an arrest warrant, on December 3, 1988. He initially denied participating in the murder, going to San Francisco that night, being on the 880 Freeway or knowing Knox, then admitted being in the car but claimed Knox fired the shot, then later admitted shooting in the direction of the Ellingsens' car and seeing the windshield shatter and the car speed away and then pull over.

Petitioner was convicted on February 8, 1990, after a jury trial. His first parole suitability hearing was in 2002. He was denied parole at that hearing and in 2007 and 2011. In 2014, a petition to advance his next hearing was granted but the hearing was then postponed twice, and in 2015 he was denied parole for three years. An administrative review on September 12, 2016, resulted in his next hearing being held on April 5, 2017.

As related in his 2017 Comprehensive Risk Assessment, petitioner grew up with a mother who was verbally abusive and a stepfather who was both physically and emotionally abusive toward the entire family, and until age 15 or 16 felt "invisible, insecure and unworthy." His older brothers ran away and were then placed in foster care when petitioner was seven or eight years old, leaving him feeling abandoned. Though a friendship with his stepfather's nephew, petitioner had begun to engage in criminal activity, and by 16 he was selling cocaine. At age 16 he intervened in an incident of domestic violence between his stepfather and his mother, striking his stepfather in the head with the leg of a chair, and he began to feel "untouchable and invincible." His criminal behavior escalated as he hung around with antisocial and criminal peers, sold narcotics and carried weapons. His mother moved to Minnesota, leaving petitioner to live with his brother and contributing to petitioner's

Petitioner gradually began to change his behavior. Since 1997, he had participated in, completed or facilitated numerous self-help programs; had become a mentor in the Substance Abuse Program (SAP) and Long-Term Offender Program, become a certified alcohol and substance abuse counselor, with over 6000 internship hours accumulated, and earned an AA degree from Lassen Community College. He had completed several vocational programs and taken numerous courses, and had "numerous laudatory Chrono's in his file commending him for his positive attitude, helpful and respectful demeanor, and leadership qualities." His work supervisors' reports had been "quite favorable, reflecting exceptional, above average, and satisfactory performance ratings throughout his incarceration."

The psychologists who assessed petitioner in 2010, 2015 and 2017 all concluded his risk of violence in the community was low. The 2017 risk assessment stated that petitioner "presents with no clinical risk factors." While he "presents with nearly every historical risk factor," "all of them are considered to be of low relevance to the current assessment of risk" because

The deputy commissioner told petitioner that all the things to which he initially attributed his problems, such as worries about people not liking him, being unworthy, and not asking for help as a youngster, were things he had no control over, while the factors he later acknowledged under questioning-desire for power, money and sex-were things he did have control over. Petitioner's response reflects his understanding of how the things he could not control contributed to the development of his criminality: "I didn't have no control over ... domestic violence in the household ... dealing with ... violence. Dealing with ... CPS coming in the house. ... And a lot of that ... had to do with me stuffin' my feeling and holdin' 'em in. So the feelings that come up on ... a lot of that is dealing with ... abandonment,

It is unclear what greater insight the Board could have been looking for. The commissioners saw petitioner as insisting on explanations for the shooting that were untrue and eventually, under questioning, changing his story to acknowledge they were not true. Despite his failure to make the point clear at the outset, however, petitioner's acceptance at the hearing that his desire to evade the police or retaliation from the truck occupants was not the true motivator for his choice to shoot into the Ellingsens' car was not a "new" insight discovered at the hearing: The 2010, 2015 and 2017 risk assessments related petitioner's awareness of factors such as his anger, impulsivity, low sense of self-worth, desire to impress others and failure to consider or care

The record clearly demonstrates that petitioner has long since disavowed the criminal conduct and values of his youth and dedicated himself to improvement of his own skills and internal resources and to providing help to others. He has expressed understanding of what caused him to commit a heinous crime as a 19-year-old, over 28 years ago, and remorse for taking an innocent life and the resulting pain he inflicted on the victim's family. Even without reference to the directives of Penal Code section 4801, this record reflects no support for the Board's finding of "no insight," and no evidence petitioner poses a current threat to public safety. Considering the contrast between the irrationality, impulsivity and recklessness of petitioner's offense as a 19-year-old, and the evidence of his subsequent development of maturity

At the time of the life crime, petitioner was supporting himself through narcotics sales. He testified at the hearing that he was neither a big nor a small dealer: He made enough money to pay rent, buy guns, alcohol and drugs to sell, and have two people work for him selling drugs. He was living with his girlfriend, who gave birth to their daughter in January 1989, after petitioner's arrest and incarceration. He had a history of arrests for possession of narcotics for sale, carrying a concealed weapon, domestic violence, and driving under the influence; he admitted that he had " 'no regard for human life' " and was " 'recklessly violent.' " He had a history of alcohol dependence beginning at age 14, with occasional use of marijuana and experimentation with cocaine, which he saw as influencing his violent behavior in that he felt " 'bolder' " when he was drinking.

Petitioner's misconduct continued during his incarceration, with seven rules violations, four of which were for violence-fighting

The sole issue of concern at the hearing was petitioner's reason for the shooting. As will be described, petitioner related shooting because he needed to evade the police, or retaliation from the occupants of the truck Grant had shot at, and the Ellingsens' car was in his way. He also described motivations including wanting to impress Grant and prove himself as a leader to his criminal associates. The commissioners dismissed most of petitioner's explanations and concluded-contrary to the psychologists who evaluated him in 2010, 2015, and 2017-that he lacked insight into the "real" reasons for his crime.

DISCUSSION

" ' "Subdivision (b) of [Penal Code] section 3041 provides that a release date must be set 'unless [the Board] determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual,' " ' and mandates that the Board 'normally'

"The nexus to current dangerousness is critical. ' Lawrence and Shaputis I "clarified that in evaluating a parole-suitability determination by either the Board or the Governor, a reviewing court focuses upon 'some evidence' supporting the core statutory determination that a prisoner remains a current threat to public safety-not merely 'some evidence' supporting the Board's or the Governor's characterization of facts contained in the record." ( Prather , [ supra, 50 Cal.4th] at pp. 251-252, 112 Cal.Rptr.3d 291 , 234 P.3d 541 .)' ( Stoneroad, supra, 215 Cal.App.4th at p. 615, 155 Cal.Rptr.3d 639 .) ' "It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public." ( Lawrence, [ supra , 44 Cal.4th] at p. 1212, 82 Cal.Rptr.3d 169 , 190 P.3d 535 , italics added.) The Board "must determine whether a particular fact is probative of the central issue of current dangerousness when considered in light of

The deputy commissioner, agreeing, told petitioner his credibility suffered because the commissioners at his hearing in 2015 made it clear they did not believe "the story about fleeing from something chasing you on the freeway" but petitioner repeated that story at the present hearing and "stuck with it until I basically had to corner you into admitting ... there was no truth in that." The deputy commissioner viewed this as minimization "because you're suggesting that there was some real reason that you had to get down the freeway at 100 miles an hour." The commissioner found petitioner had not identified or addressed the causative factors of the crime and criticized petitioner's description of his "character defects" as "criminal, violent, sarcastic, pariah, angry and procrastination"; the commissioner suggested an applicable list might be "greedy, devious, deceptive, cruel, uncompassionate, intolerant, manipulative, vengeful, self-indulgent, destructive, selfish."

As we explained in Perez , the California Supreme Court made clear in Shaputis II that " '[c]onsideration of an inmate's degree of insight is well within the scope of the parole regulations. The regulations do not use the term "insight," but they direct the Board to consider the inmate's "past and present attitude toward the crime" ( [Cal. Code] Regs., [tit. 15,] § 2402, subd. (b) ) and "the presence of remorse," expressly including indications that the inmate "understands the nature and magnitude of the offense." (Regs., § 2402, subd. (d)(3) ). These factors fit comfortably within the descriptive category of "insight." ' ( Shaputis II , [ supra , 53 Cal.4th] at p. 218, 134 Cal.Rptr.3d 86 , 265 P.3d 253 .) '[T]he presence or absence of insight is a significant factor in determining whether there is a "rational nexus"

Petitioner testified at the 2017 hearing that his criminality began because he wanted to "fit in," having "always felt like the oddball out" and that he "wasn't strong enough to be by myself." He also began drinking alcohol to "fit in," but later he drank "to hide and get away" and then because "drinking made me feel bolder" and "made it easy for me to, um, run around with the people that were anti-social and criminal." He had a lot of guns because "in the drug trade, the more guns was ... status" and had an "AK" because it was "the biggest gun that I can buy and I knew that would do more damage," which he wanted because, as a drug dealer, he knew he had to be the "baddest" and "craziest one."

Discussing the murder, petitioner referred frequently to the "person he was" at the time: An angry, impulsive and violent drug dealer with no value for life and a perceived need to enhance his stature in the eyes of his criminal associates. Throughout the hearing, the commissioners rejected petitioner's explanations of his thoughts and actions as illogical and petitioner agreed that they were in fact illogical, but returned to the person he was and way he thought then.

Describing the course of events leading up to the murder, petitioner testified that he felt panicked when his car became stuck in traffic after Grant shot at the truck, and sped across the Bay Bridge, because he wanted to "flee," thinking the police might be coming or the truck might come back. To various questions and comments expressing the commissioners' disbelief that petitioner actually thought he was being pursued, petitioner acknowledged that in fact neither the police nor the truck were after him, but said these were things in his mind at the time, due to his criminal mind set. For example, petitioner explained, "why I always say that because I-and I speak on that is the person who I was then. If somebody would of shot at me, I would have somehow tried to turn around and come after 'em. So I have these thoughts that thinking they might and evade capture 'cause I don't know if, um, after

Asked for his "insight" on the crime, petitioner again said he was trying to prove himself to Grant, and the commissioner again dismissed the point. When petitioner referred to "the person I was then" and "underlying anger that I had back then that dealing with conflict," the commissioner questioned why Grant would have been impressed by petitioner killing an innocent driver. Petitioner said, "that was my warped thinking at the time ...

At this point, the deputy commissioner challenged petitioner's testimony that he was afraid of being pursued as "unrealistic" and elicited petitioner's acknowledgment that he knew at the time that neither the police nor the people in the truck were coming, that shooting at the Ellingsens' car would not be likely to get him anywhere faster and that he had already proved to Grant that he was "with him" by chasing the truck. In response to further questions, petitioner acknowledged he was not in a panic, not afraid of the police and not afraid of the truck, that it took a lot of effort to shoot the assault rifle as he did, and that when he told his passengers, "[I'm a] make these motherfuckers speed up" he "basically meant to say I think I'll shoot at these motherfuckers ... [b]ecause that's the kind of guy you were."

After telling petitioner that his explanations about being in a panic and needing to speed up because of the police and the truck were "nonsense" that he should not repeat in the future, justifications for what he did rather than actually what he was thinking, the deputy commissioner asked petitioner about his character defects. Petitioner said he was "a criminal,"

Rather than recognize that petitioner was trying to explain how he came to be a violent person, the presiding commissioner told petitioner that what he was describing-an "unstable social life" growing up-was "an aggravating factor" for violence and unsuitability because "[t]he studies show that those are factors that don't change and ... lead to increased violence." When petitioner stated that this would be mitigated by his long history of "doing self-help," "dealing with pro-social people" and the support he would have in the community, the commissioner dismissed his point, again saying that having an unstable social history predicted the violence that petitioner engaged in. The presiding commissioner said they were trying to determine whether petitioner had "really identified what got you here in the first place" because petitioner's repeated references to needing to get away from the police and truck were "wrong," and petitioner tried to explain that he knew this was not actually the reason he shot into the Ellingsens' car. Petitioner agreed when the deputy commissioner told him the "bottom line" was that "somebody died because you were putting on a show for your friends and you thought that was gonna enhance your leadership role."

In sum, petitioner told the Board that he fired the assault rifle into the Ellingsen's car because he perceived it to be an obstacle, he had grown up learning to respond to problems with violence, he did not value life, he wanted to impress his associates that he was as tough as Grant, and shooting into a stranger's car was something that he saw as enhancing his image as a tough, violent drug dealer. He recognized that none of this made logical sense, but it was the way he thought at the time, which he attributed to his need to overcome the lack of self-esteem and self-worth he had felt as a child by making himself a powerful

The 2017 risk assessment described petitioner as having "demonstrated enhanced insight into the causative and contributory factors to his past behaviors including the Life crime." observing that "[i]t seems he really took to heart what the last hearing panel said, and has been working to gain a deeper understanding of what factors drove his behavior in the Life crime." Petitioner told the evaluator that he was trying to prove himself to Grant, and "attributed his extreme violence to wanting to 'fit in' with his peer group." He saw his "underlying anger and low self-worth as factors driving his behaviors": "He recalled his parents always telling him that he was stupid, and that he would never amount to anything, well here he was now, and he wanted to be recognized." He said he had learned from childhood that "the best way to handle conflict was through violence," "mentioned impulsivity as a factor" and said "he didn't care about human life, and even though [his] intention was not to kill necessarily, [he] didn't see anyone else as value because nobody saw [him] as valuable." Petitioner recognized that "taking a high-powered rifle anywhere was not protecting [himself]" but rather "being a danger." He told the evaluator, "[a]t 19, I didn't have any values, I was not thinking about the harm I could have caused." When he saw a report about the crime on the news, he "felt ashamed and guilty, but more so, I didn't want to get caught. I realize that I murdered an innocent person, took him away from his wife and family. I didn't have problem solving skills, and when I came to prison, I was still angry and felt abandoned. Whenever I couldn't express myself appropriately I just lashed out." Petitioner said he now recognized "warning signs of anger, and other emotions, like racing heart, feeling sweaty, etc. In the past I always thought that was the bell to go and do something (like fight or flight-but choosing to fight). Now I recognize those as warning signs to become introspective and realize what is going on within

The commissioners' only explanation for rejecting the consistent view of the psychologists that petitioner demonstrated insight into his offense and presented a low risk of future violence was the presiding

The Board paid lip service to the requirement that it consider youth factors, but the record gives no indication the Board actually did so, much less that it gave these factors "great weight." ( Pen. Code, § 4801, subd. (c).) The commissioners rejected petitioner's attempts to explain his perceived need to prove himself and lack of regard for the value of life or consequences of his actions, seeking logical, rational reasons for petitioner's conduct that failed to allow for, much less give great weight to, the mindset of a 19-year-old drug dealer immersed in a violent, criminal lifestyle.

Penal Code section 4801, subdivision (c), also required the Board to give great weight to "any subsequent growth and increased maturity of the prisoner." In the opinion of the psychologist who evaluated petitioner in 2017, the "dramatic attitudinal and behavioral changes he implemented and has sustained for a protracted period