ECC NEWSLETTER #4 JANUARY 2013 JUSTICE FOR ALLeccherchandlerconsulting.com/uploads/ECC_4.pdf · the Work Opportunity Tax Credit (WOTC) program by hiring ex-felons. An ex-felon under

ECC NEWSLETTER #4 JANUARY 2013

JUSTICE FOR ALL

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HELPING EVERYONE REGARDLESS ECC, 532 N. MAGNOLIA AVE. #333, ANAHEIM, CA 92801

$ means these court orders are available to purchase for U.S. currency or stamps. See last page for details.

MERRY CHRISTMAS AND HAPPY NEW YEAR TO ALL OUR READERS

ECC would like to wish everyone a belated Merry Christmas and a very Happy New Year in 2013. We would

like to thank everyone for their love and support the last six months regarding our new business. We really

appreciate it and look forward to 2013 and all the happiness and success we are going to have. Looking

forward into our 2013 crystal ball, we see many successful cases being granted in the courts against the Board,

Governor, Recall of Sentence not to mention more 1045A petitions. By April 8 2013, the California Supreme

Court should render a decision on In re Michael Vicks (S194129), concerning the ex post facto claim about the

“Victims’’ Bill of Rights Act of 2008 Marsy’s Law.” The court held oral arguments on January 8, 2013. By

rule of court, a decision should be handed down within 90-days. In addition, by June 2013, the state is required

to have the inmate population reduced to 137%, the minimum required by the three judge federal court order.

That is a look at the first six months of 2013.

REENTRY MYTH BUSTER? This Myth Buster is one in a series of fact sheets intended to clarify existing

federal policies that affect formerly incarcerated individuals and their families. Each year, more than 700,000

individuals are released from state/federal prisons. 9 million more cycle through local jails. When reentry fails,

the social and economic costs are high--more crime, more victims, more family distress, and more pressure on

budgets.

MYTH: Employers have no federal income tax advantage by hiring an ex-felon?

FACT: Employers can save money on their federal income taxes in the form of a tax credit incentive through

the Work Opportunity Tax Credit (WOTC) program by hiring ex-felons. An ex-felon under WOTC is an

individual who has been convicted of a felony under any statute of the United States or any State, and has a

hiring date which is within one year from the date of conviction or release from prison. The main objective of

this program is to enable certified employees to gradually move from economic dependency to self-sufficiency

as they earn a steady income and become contributing taxpayers. At the same time, participating employers are

compensated by being able to reduce their federal income tax liability. The Work Opportunity Tax Credit

program (WOTC) joins other work force programs that help incentivize work place diversity and facilitate

access to good jobs for American workers. THE WOTC: For each new ex-felon hired, the credit is 25% of

qualified first year wages for those employed at least 120 hours, or $1,500; and 40% for those employed 400

hours or more, or $2,400. TARGET GROUPS: The WOTC is a federal tax credit used to reduce the federal tax

liability of private for profit employers. Employers can hire individuals from the following 9 target groups,

which have traditionally faced significant barriers to employment: (1) Qualified TANF Recipients; (2) Qualified

Veterans; (3) Qualified Ex-Felons; (4) Qualified Designated Community Residents (DCR); (5) Qualified

Vocational Rehabilitation Referrals; (6) Qualified Summer Youth; (7) Qualified Food Stamp Recipients; (8)

Qualified Supplemental Security Income Recipients; (9) Qualified Long Term Family Assistance Recipients.

APPLICATION PROCESS: There is no limit to the number of new ex-felons an employer can hire to benefit

from these tax savings. Employers apply for and receive a WOTC certification for each new hire from their

State Work force Agencies. There’s minimal paper work needed to qualify and claim the tax credit!

FOR MORE INFORMATION: go to-http://www.doleta.gov/wotc; http://www.irs.gov.

YOUR NEWS YEARS RESOLUTION SHOULD BE TO BUY A SUBSCRIPTION TO ECC NEWSLETTER

SUBSCRIPTION RATES FOR THE ECC NEWSLETTER: If you would like to subscribe to the ECC

Newsletter, rates are $20.00 or 80-postage stamps, (.45¢ or forever). One year subscriptions are offered and

include six issues per year. Rates apply to everyone.

PLEASE EVERYBODY BUY ONE TO HELP OFFSET THE COSTS OF THIS SERVICE.

http://www.doleta.gov/wotc

http://www.irs.gov/


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BROWN CHALLENGES COURT OVERSIGHT OF CALIFORNIA PRISONS (By DON THOMPSON, Associated Press; Published: Tuesday, Jan. 8, 2013.) SACRAMENTO, Calif. -- Declaring that

California's long-running prison crisis is over, Gov. Jerry Brown on Tuesday challenged a federal court order by saying

the state has done all it can to safely relieve overcrowding and improve medical and mental health care for inmates.

Meeting further demands by the courts to reduce the inmate population, he said, would require ignoring state sentencing

laws and putting the public at risk by releasing violent offenders. He urged the judges to end court oversight of inmate

medical and mental health care, and vowed to press his fight to the U.S. Supreme Court if necessary. "There's no question

that there were big problems in California prisons," the Democratic governor said at a Capitol news conference, adding

that "after decades of work, the job is now complete." Attorneys representing inmates countered that while conditions

have improved, inmates still are needlessly dying of neglect and mentally ill inmates still go untreated. It was those sorts

of dismal conditions that prompted mentally ill inmates to sue the state in 1991, eventually leading a panel of federal

judges to order the state to reduce the population of its 33 adult prisons by about 33,000 inmates, to a total of 110,000

inmates, by June. The court's 2009 order was upheld by the nation's high court in 2011. The state won't meet that deadline

despite sending thousands of less-serious offenders to local jails instead of state prisons under a 14-month-old state law

designed to reduce crowding and prison spending. The change has reduced California's inmate population so much that

Texas now has a larger prison population, though Texas has about 12 million fewer residents. The law alone reduced the

prison population by nearly 25,000 inmates. In addition, corrections officials say as many as 2,800 third-strike career

criminals could be released after voters required that the third strike be a violent or serious felony. Brown argued the state

can't do more without endangering public safety, and shouldn't have to comply with an arbitrary cap. Brown's

administration said in court documents filed overnight Monday that it could meet the court's current population cap only if

the federal court waives numerous state laws and "orders the outright early release of inmates serving prison terms for

serious and violent felonies." That includes granting early release credits to "second strike" inmates who have serious

prior convictions. Sentencing laws would have to be changed, and inmates who would normally serve nine months or less

in state prison would spend their time in county jails. The state also could lower the threshold for sending inmates to

firefighting camps, expand work furlough, restitution centers and alternative custody programs, and keep more inmates in

private prisons in other states. Attorneys representing inmates' welfare said the state could adopt those money-saving

changes without endangering the public. Brown said such a strategy would not be in the public interest. "We are not

letting them out without a fight," he said during an afternoon news conference in Los Angeles. Stanford University law

professor Joan Petersilia, co-director of the Stanford Criminal Justice Center, expects the judges to reject Brown's

challenge, but said the judges would do well to consider the state's improvements as well as the more violent criminals left

in state prisons. "We've kind of let out the low-hanging fruit and this next bunch is a much different group," said

Petersilia, who has been studying the transition of lower-level criminals to county jails. Brown said the state can no longer

afford to spend billions of dollars on "gold plate" prisons that could be going to education, child care and other priorities.

Salaries soared under a federal overseer with the power to hire and set pay levels, with some prison medical staff paid

more than twice the statewide average. "We've gone on a hiring binge. We've thrown out the civil service book, we've

thrown out the salary restrictions. Pay them more than the governor! Do whatever you have to satisfy these problems,"

Brown said. "Common sense says, 'Enough.'" A federal judge is already moving slowly to end a court-appointed receiver's

control of prison medical care because of improved conditions, Brown noted. The administration filed a court motion to

also terminate a different judge's oversight of inmate mental health care, arguing in part that further federal involvement

tramples on state sovereignty. Brown ended a 2006 emergency proclamation by former Republican Gov. Arnold

Schwarzenegger that let the state send thousands of inmates to private prisons in other states. Brown's move cleared the

way for them to be returned to California starting in July. "California is a powerful state. We can run our own prisons.

And by God, let those judges give us our prisons back. We'll run them right," Brown said.

GILMAN V. FISHER (2:05-CV-00830, LKK-GGH) Whether Marsy’s Law is Ex Post Facto. On 12/17/12, the court’s

web page had these minutes posted as follows: “MINUTES (Text Only) for proceedings held before Judge Lawrence K.

Karlton: FINAL PRETRIAL CONFERENCE held on 12/17/2012. The parties are to meet on January 3, 2013 to go over

the designated disputed facts. Updated Pretrial Conference Statements are due January 10, 2013. A Further Pretrial

Conference is set for January 22, 2013 at 02:00 PM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton.”


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ORDER TO SHOW CAUSE (OSC) CORNER

AND INFORMAL RESPONSE (IR) ORDERS This corner is intended to list OSC’s and IR’s across the

state to help keep hope alive for prisoners. If you would

like your OSC or IR listed in the ECC, just send us a copy

and short summary of the proceeding. All OSC’s and

IR’s in bold are the help of ECC.

MICHAEL CARL DEAKINS (OSC) (2012) C.D.Cal.

Criminal conviction actually innocent.

MICHAEL ADAMAR (OSC) (2012) E.D.Cal. CDC-115

for mutual combat. KEEP HOPE ALIVE

ECC is happy to announce that two BPH-1045(A)’s

that we worked on were granted for Chris Paonessa

and Toby Rash. Congratulations guys, you deserved it.

SELF HELP TRAINING COURSES: Reformation Academy has helped 100's of inmates

receive a favorable review at their parole hearing by

providing them with sufficient self-help training

courses. Let us help you increase your suitability for

parole. JACQUELINE MOORE, RA 716 N.

VENTURA RD., # 180 OXNARD, CA 93030;

SEND SASE FOR FREE INFORMATION.

BOARD PREPARATION Wouldn’t it be nice to know what to say to the Board

before your parole hearing? We help lifers prepare for

their parole hearings. This is listed in our ad below as

Board Preparation. Preparing for your parole hearing is

one of the most critical stages in the fight for your

freedom. We have read hundreds of parole hearing

transcripts and see the errors that lifers make in their

parole hearings. In addition, we have gained knowledge

about what is actually needed for parole plans, i.e., letters

of support, relapse prevention plans, and substance abuse

meetings, etc. We also have contacts for transitional

housing in some cases. More importantly, we provide

you with 10-15 answers that you need for those difficult

questions on an individual basis. We also review your last

parole hearing transcript, page by page, and show you in

writing where you made mistakes and how to improve

your answers next time. THIS IS CRITICAL. Going into

your parole hearing 99% prepared is critical to your

success during the hearing in two major respects. First,

you stand a better chance in receiving a parole date.

Second, if you are denied, you have prepared a great

record that a judge is going to read and possibly grant

your petition when you file in court. E.g., look at some of

the cases in this issue and the answers they gave.

ECCHER &

CHANDLER

CONSULTING

HELPING

EVERYONE

REGARDLESS

GARY ECCHER &

KEITH CHANDLER

532 N. MAGNOLIA AVE. #333

ANAHEIM, CA 92801

PHONE: (714) 381-0694

(916) 869-1156

EMAIL: [email protected]

[email protected]

HABEAS CORPUS PETITIONS

V. BOARD & GOVERNOR & CDC

CRIMINAL MATTERS

SENTENCING ERRORS

PLEA BARGAINS

INEFFECTIVE ASSISTANCE OF COUNSEL

CIVIL MATTERS

3-STRIKES PETITION TO RECALL SENTENCE

BPH 1045A PETITIONS & CDC-602 APPEALS

BOARD PREPARATIONS

WE ARE NOT ATTORNEYS

mailto:[email protected]



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Eccher & Chandler Consulting (ECC) Newsletter is

published to provide everything from A to Z in prison

news from pre-post-conviction, to parole and life

thereafter. Our specialty is indeterminate life sentences.

In short, LIFERS-R-US, however, we help everyone

regardless. The ECC is not intended as legal advice, but

provides prison legal news, articles, comments, and the

like. This information is the opinion of the Editors of the

ECC, unless otherwise indicated. We are not attorneys.

The ECC is authored, published, and circulated by Gary

Eccher and Keith Chandler the partners in Eccher &

Chandler Consulting, 532 N. Magnolia Ave. #333,

Anaheim, CA 92801. Gary Eccher (AKA, Red or

Reddog) a former lifer who obtained his parole through

the courts after successfully litigating his own case

against the Board of Parole Hearings (Board) and

Governor. Gary/Red obtained two paralegal degrees

while incarcerated and worked for approximately 10-

years in the law library at Old Folsom. He also worked

for approximately 10-years as a disciplinary clerk at Old

Folsom and Avenal. During Gary/Red’s prison term, he

helped many lifers obtain their freedom through the courts

or by consulting with them on strategy to be employed

during their parole hearings. A list of 34-granted writs of

habeas corpus follows. 15-guys released.

Jimmie Sole (2001) Sonoma County (Cty.) v. Board

Javier Cortinas (2002) Santa Clara Cty. v. Board

David “Benny” Taylor (2003) Santa Clara Cty. v. Board

released 1-2004 Miguel “Rooster” Martin (2003) Sacramento Cty. v.

Board (Restraint Policy Ruled Underground Reg.)

$Gary Eccher (2004) Orange Cty. v. Board


$Julian Moreno (2008) L.A. Cty. v. Governor released 1-

2009 $Paul Gaul (2009) CA2/7 v. Board 170 Cal.App.4

th 20

released 2-2010

Onesimo Haro (2009) Santa Clara Cty. v. Board

$Maurice (Mo) Williams (2009) L.A. Cty. v. Board

released 4-2012


$Hassan Cromwell (2009) L.A. Cty. v. Governor

released 10-2009

$Luis Ayala (2009) CA2 v. Governor released 11-2009

$Donald Furtado (2009) Santa Clara Cty. v. Board

$Luis Espinosa Morales (2009) Ventura Cty. v. Board

Granted From Informal Response Order

$Jesse Martinez (2009) E.D.Cal. v. Governor

$Jesse Martinez (2010) L.A. Cty v. Governor released 2-

2011

$Arnold Trevino (2010) E.D.Cal. v. Governor released 4-

2011


$Scott Breverman (2010) L.A. Cty. v. Board

$Timothy Casey (2010) L.A. Cty. v. Board released 2-

2011

$Mark Jeffery Jones (2010) L.A. Cty. v. Governor

$Mario Estrada (2010) E.D.Cal. v. Board

$Javier Pacheco (2010) C.D.Cal. v. Governor

$Donald Furtado (2010) Santa Clara v. Governor

$Ismael Rivero (2010) E.D.Cal. v. Board

$Javier Pacheco (2010) L.A. Cty. v. Governor released

11-2010

$Gary Eccher (2011) Orange Cty. v. Governor

$Thanh Nguyen (2011) v. Board

$Mark Jeffery Jones (2011) CA2/5 v. Governor released

6-2011

$Donald Furtado (2011) CA6 v. Governor released 10-

2011 $Derrick Taylor (2011) L.A. Cty. v. Governor released

11-2011

$Scott Breverman L.A. Cty. v. Board (about matrix)

released 3-2012

$Gary Eccher (2012) CA4/3 v. Governor released 6-2012

Keith Chandler was released from Folsom Prison via

Federal Court Order in 2004 after serving 21 years (the

last 9 unconstitutionally) for second degree murder. Once

exposed to the injustices of the prison and parole systems,

Keith became a zealous advocate for change, working

nearly his entire term in the DVI and Old Folsom Law

Libraries, helping hundreds of inmates through the years.

Upon release, Keith serves as a political and legal

consultant for many clients, but has predominately

worked with attorney Steve Sanders and Sanders &

Associates, a West Sacramento Law Firm specializing in

parole and politically sensitive litigation. Sanders &

Associates, with Keith in a lead role, managed the

corporation that controlled the 2004 Prop. 66 Campaign

which sought to reform the Three Strikes Law. Keith,

working with Taxpayers for Improving Public Safety

(TIPS), was instrumental in litigation which blocked the

California Department of Corrections and Rehabilitation

from using 7 Billion Dollars of AB 900 prison

construction bonds for a two year period. Keith’s


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political experience and grasp of the Three Strikes Law

found him working with FACTS and Stanford University

in the formative stages of Proposition 36, the 2012 effort

to reform Three Strikes. Keith’s consultation has resulted

in parole grants, reduced sentences, or outright release,

for dozens and dozens of inmates through the years.

Some of Keith’s meaningful cases are listed below:

Nick Swanson L.A. Cty. v. Gov. client released

Gil Fuentes S.D. Cty. v. Board initial parole hearing, 25

to life case, denied shooting, client released

$Robert Watson multiple habeas victories, S.D. Cty. and

CA4/1 v. Board and Governor client released

Manual Cass multiple habeas victories, S.D. Cty. v. Board

and Governor client released

An Nguyen Orange Cty. v. Governor client released

K. Register E.D.Cal. inmate claims actual innocence

Paul Crowder four habeas victories, Orange Cty. and

CA4/3

PF Lazor Sonoma Cty. and CA6 v. Board, he had more

than 30-115’s, published 172 Cal.App.4th 1185

Mark Chandler Amador Cty. v. Board and Governor

client released

Jack McGarey multiple habeas victories, Sacramento Cty.

v. Board

Dale Crapo E.D.Cal. v. Board

Dave Bertagna E.D.Cal. v. Board, client released

Taxpayers for Improving Public Safety (TIPS) v.

Schwarzenegger, was a lawsuit alleging AB 900’s 7-

billion dollars of prison construction bonds were an

unconstitutional manipulation of the lease-revenue bond

process. Initial victory in Sacramento County later

overturned, and ultimately the case was lost. See $TIPS v

Schwarzenegger (2009) 172 Cal.App.4th 749.

Chandler v. Wilson, 9th

Circuit Court of Appeal. Keith

sued various government officials for his 9-years of

unconstitutional confinement based upon the Al Leddy

documented political conspiracy to rescind all prior grants

of parole in the early 1990’s by then Gov. Wilson. Even

though represented by counsel, Keith was granted the rare

privilege of orally arguing the case before the 9th Circuit

himself. All defendants were ultimately held to be

immune.

UPDATE ON IN RE MICHAEL VICKS,

(S194129), (as of January 20, 2013). The California Supreme Court granted review

regarding this ex post facto claim as: “Can Penal

Code section 3041.5, as amended by the ‘Victims'

Bill of Rights Act of 2008: Marsy's Law,’ which

decreased the frequency of parole consideration

hearings, be applied to life inmates convicted before

the effective date of the amendments without

violating the ex post facto clauses of the state and

federal Constitutions?” There are only 3-cases

waiting in line for the Vicks decision; In re RUSSO,

(S193197); In re ARAGON, (S194673); and In re

SMITH, (S194750). The California Supreme Court

held oral arguments on January 8, 2013. The buzz

about the oral arguments within our legal

community, from two sharp attorneys we work with

and who were present at the hearing, is that based on

the questions asked, they believe the California

Supreme Court will uphold Marsy's law. Justices

Liu and Werdegar asked the most probative

questions while Chin and Baxter asked none just like

during the Shaputis II oral arguments. General

consensus was that Chin and Baxter already have

their minds made up on upholding the law. Liu

made an interesting comment on how hard it is to

win a facial challenge on an initiative such as this

case.

ECC PROVIDES TWO (2) COPIES OF STATE

OR FEDERAL CASE LAW, (40-PAGES OR

LESS), FOR $5.00 OR 20-POSTAGE STAMPS,

(.45¢ OR FOREVER). IN ADDITION, ANY

CURRENT JUDICIAL COUNCIL FORMS

NEEDED CAN BE PURCHASED AT THE SAME

PRICE. ANY OTHER INFORMATION THAT

YOU MIGHT NEED CAN BE PURCHASED

FROM ECC AT A RATE OF (40-PAGES OR

LESS), FOR $5.00 OR 20-POSTAGE STAMPS, (.45¢ OR FOREVER).

SEE LAST PAGE FOR MORE SERVICES.

ECC MOTTO: “Most things in life are chimpanzee stuff, but

every once in a while you need a gorilla. That’s what we’re for.”

http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=1979745




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IN RE NELSON GAMEZ, WL6635047, CA6, (12-21-12), NON-PUBLISHED. Governor Brown reversed the grant of

parole issued by the Board. The Governor denied parole because of the heinousness of Gamez's crime and lack of insight

into the offense. The court of appeal found the Governor's decision is supported by the modicum of evidence required

under the "some evidence" standard. ($In re Shaputis (2011) 53 Cal.4th 192, 198, 220.) Gamez murdered his wife Martha

Gamez, by stabbing her to death because of a protracted conflict between Gamez, his wife, and his in-laws. Gamez had an

affair with his sister-in-law and his sister-in-law told him that Martha was cheating on him. On the day of the murder,

Gamez and Martha were arguing in Gamez's car. Gamez told Martha that he was cheating on her and then accused her of

infidelity. Martha began hitting Gamez with her purse. Gamez then repeatedly stabbed Martha. In 2010, the Board

granted Gamez parole because of his "exceptional" behavior in prison, involvement in self-help programs, "very good

parole plans," and "overall low risk for recidivism." The Governor reversed; in September 2011, the trial court reversed

the Governor, constituting the matter before the court of appeal. The Governor found Gamez's description of the crime in

his 2007 psychological evaluation "utterly unbelievable." According to the Governor, Gamez's description implies that

someone else came along and stabbed Martha 24 to 25 additional times. Additionally, by stating that he used a "small

knife" and Martha's "wounds were not deep," the Governor contends Gamez further minimizes his role in the crime, and

such minimization provides evidence of lack of insight. This lack of insight, as well as the heinousness of Gamez's crime,

the Governor maintains, provides evidence of Gamez's continued dangerousness. The appeals court found the Governor's

decision is supported by the modicum of evidence required under the "some evidence" standard. The Governor could

justifiably find the circumstances of Gamez's crime to be "aggravated" or "particularly vicious." Here, Gamez stated he

repeatedly stabbed his wife, pushed her out of the car, and left her "standing" by the side of the road as he drove away.

The Governor may not, however, rely solely on the circumstances of a crime committed long ago to establish the required

"some evidence" of current dangerousness; there must be some linkage between those (Continued next page)

MARC ERIC NORTON ATTORNEY AT LAW

BOLD - COMPETENT - PASSIONATE

LEGAL REPRESENTATION

● Representing Term-to-Life Clients at Parole Suitability Hearings Since 2006 ● Practice Exclusively Limited to Parole Hearing and Related Matters; Including Petitions for

Writs of Habeas Corpus on Board Denials and/or Governor Reversals of Parole Grants ~~~~

--“The Board’s psychologist rated me as Moderate/High Risk for violent recidivism, but Marc tore that report apart piece by piece and got me a parole date on November 8, 2012. Marc is the best lawyer I’ve ever seen.” Glenn Bailey, B-47535

--“Marc fought for me like I paid him a half million dollars!” Edwin “Chief” Whitespeare, CMF (R.I.P.)

--“Marc made the D.A. look like an idiot by pointing out all his lies and got me a parole date!” ‘Cooter’ Munoz, Mule Creek

~~~~

PO Box 162 Zamora CA 95698 phone: 530.669.7999 -- collect calls gladly accepted (please be patient)

email: [email protected]

I have experienced much success in “lifer” hearings--arguing for 74 findings of suitability; that is 74 grants of

parole for “lifers” since August 2006 (60 of the 74 grants I obtained were PC 187 Murder 1st and 2nd cases).

http://scholar.google.com/scholar_case?case=6048435831724877431&hl=en&lr=lang_en&as_sdt=2,5&as_vis=1



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SINCE THE ADVENT OF $In re Shaputis II (2011)

53 Cal.4th

192, THERE ARE AT LEAST 40-MUST

KNOW CASES LISTED BELOW. STAY IN THE

GAME BY KNOWING ALL THE CASES.

$In re Elizabeth Ozerson 3-27-12

$In re Christopher Morganti 3-28-12

$In re Mary Farrar 3-28-12

$In re Victor Sousa 3-28-12

$In re Dameion Brown 4-11-12

$In re Emilio Sanchez 4-30-12

$In re Vincent Motley 4-30-12

$In re Harold Hawks 5-2-12

$In re Gary Eccher 5-10-12

$In re Cole Bienek 5-16-12

$In re James Hunter 5-18-12

$In re David Peaslee 6-22-12

$In re Alex Tapia 6-25-12

$In re James Rovida 6-29-12

$In re Johnny Lira 6-29-12

$In re Michael Adamar 7-2-12

$In re Frederick Davidson 7-20-12

$In re John Batie 7-20-12

$In re Mark Ouellette 7-23-12

$In re James Mackey 7-31-12

$In re Brian Montgomery 8-2-12

$In re Manolo Tolentino 8-6-12

$In re Saterial Thomas 8-13-12

$In re Harjot Takhar 8-28-12

$In re Arcadio Acuna 8-30-12

$In re Adam Sanchez 8-31-12

$In re George White 9-6-12

$In re Denise Shigemura 9-27-12

$In re Roger Sundberg 10-12-12

$In re James Grisso 10-23-12

$In re Donnell Jameison 10-25-12

$In re Steven C. Martinez 10-26-12

$In re Erika Schomberg 10-31-12

$In re Gilbert Coronel 11-6-12

$In re Hall 11-28-12

$In re Denham 12-6-12

$In re Ferguson 12-19-12

$Warden v. Sup.Ct. & Carpenter 12-20-12

$In re Gamez 12-21-12

$In re Stevenson 12-21-12

(GAMEZ Continued) circumstances and current

dangerousness. Indeed, the Governor concluded that

Gamez lacks insight because Gamez continues to

minimize his role in the murder of his wife by failing to

accept responsibility for the full extent of his actions. To

support this conclusion, the Governor relied on alleged

conflicts between Gamez's description of the crime and

the record. The relevant elements of Gamez's description

of the crime may be divided into two categories: (1) a

quantitative one, the number of times Gamez stabbed

Martha; and (2) a qualitative one, the severity of Martha's

wounds. The court concluded, they do not find that

Gamez's description of the number of stabbings is

inconsistent with the record, but did find that his

description of the severity of the stab wounds in this

heinous offense provides the Governor with "some

evidence" to conclude Gamez is currently dangerous.

Regarding the qualitative factor—the severity of the stab

wounds—during his 2007 psychological evaluation,

Gamez stated that he stabbed Martha with a "`little knife

to cut electrical cables and oranges.'" He noted that since

the knife was small, Martha's wounds were not deep. The

Governor may fairly read this description as inconsistent

with the record and reflective of a material deficiency in

Gamez's understanding of the crime. The record

establishes that four of Martha's stab wounds punctured

her lung and one stab wound entered her throat. Each of

these wounds individually was of sufficient depth to cause

death. Gamez stated that the mortal wounds he inflicted

were not deep. The Governor could conclude that

Gamez's continued inability to appreciate the gravity of

his offense reflects a material deficiency in his

understanding of the crime, which provides evidence of

Gamez's lack of insight into this terrible crime. As such,

the Governor's finding of Gamez's current dangerousness

is supported by the modicum of evidence required under

the "some evidence" standard. The court noted the

Governor may rely on the 2007 psychological evaluation

because more recent evidence does not render the

evaluation irrelevant. Gamez himself does not provide a

subsequent account of the pertinent details of the crime.

As such, the 2007 psychological evaluation remains

probative of Gamez's current psychological state.

Current Title 15 Division II Board

of Parole Hearings $10.00 or 40-

postage stamps, (.45¢ or forever).


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$IN RE JENNIFER HALL, WL5937499, CA2/4, (11-28-12,) NON-PUBLISHED. This is an appeal by the Board

from a Superior Court order granting her application for a writ of habeas corpus. The court of appeal affirmed as follows.

In 1992, Hall shot and killed her boyfriend, Christopher Guerrero. The day of the shooting Hall's ex-husband was in a car

accident, and she called Guerrero to come pick her up and take her to the hospital. Later that day, while at her apartment,

the two got into an argument over Guerrero's drug use and suspected infidelity. Hall demanded that he leave and retrieved

a handgun. As he turned to exit the house, Hall shot him through the lower back. Although she initially claimed that the

gun's discharge was accidental, she admitted at her most recent parole hearing that she purposefully pulled the trigger.

Hall called 911, but Guerrero died in the hospital the following day. Hall was convicted of second degree murder, 15

years to life with a four-year enhancement for the gun. Hall was denied parole at a Board hearing in 2007 and was given a

set of recommendations to prepare herself for parole. She followed through on those recommendations by actively

participating in self-help groups, improving her parole plans, earning positive marks in her file, and remaining discipline

free. In fact, during her almost 20 years of incarceration, she has never received a "CDCR-115 Rules Violation Report"

(for non-minor prison infractions) and "only two 128 A Custodial Counseling Chronos" (minor infractions), achieving the

lowest possible classification score for an inmate with an indeterminate life sentence. She also has maintained steady

work assignments with "above average to exceptional" reviews from her supervisors. Her programming has included

vocational training in dentistry, electronics and graphic arts, and she has participated in programs for stress management,

anger management and life skills. She also has signed up to be a mentor in the prison's long termer's organization. The

court of appeal found, the Board's decision to deny Hall parole was based on the commitment offense and lack of insight.

The Board found that the crime was "done in a cruel manner," which demonstrated an "exceptionally callous disregard for

human suffering." In the Board's opinion, the motive for the crime was "inexplicable in relation to the offense." The Board

detailed how Hall had called the victim to her residence, took out a gun, loaded it, and then intentionally shot the victim in

the back. Although Hall's crime was atrocious, we do not believe there is any evidence that (Continued next page)

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(HALL, continued) supports a finding that it was committed in an especially cruel manner as understood in the relevant

regulations. By definition, all second degree murders involve a callous indifference to the suffering of others. ($In re

Vasquez (2009) 170 Cal.App.4th 370, 383-384.) Hall called the victim to her home, they got into an argument, and she

shot him in the back. Certainly this exhibits callousness and a disregard for the consequences it caused; these

circumstances are common to the crime of murder, the most serious of felonies. But the test for parole eligibility is

whether there is a nexus to an unreasonable risk of danger to the public if the prisoner is released. The court found no

support for the Board's contention that the motive here was "inexplicable." As Hall stated, she was engaged in a heated

fight with the victim over his drug use and suspected infidelity. She explained the rage and jealousy that had built up and

led her to pull the trigger. Although these circumstances do not excuse the crime or provide any sort of mitigation, neither

do they make the motive for committing the crime inexplicable. The second ground on which the Board denied parole

was lack of insight. For the lack of insight finding, the Board heavily relied on, and extensively quoted, the 2009

psychological evaluation report that was in evidence. It cited the psychologist's comments that Hall would "undoubtedly

benefit from further exploration" and that her "insight into the causes of the commitment crime [was] limited." However,

the clear and repeated conclusion of that evaluation was that Hall presented a low risk of violence and that there was a

minimal probability of her reoffending, undermining the Board's reliance on it. The Board also commented on how recent

her admission to intentionally shooting the victim was and indicated that it relied on her inability to communicate and be

more verbal in the hearing as evidence of her lack of insight. But "[w]here, as here, undisputed evidence shows that the

inmate has acknowledged the material aspects of . . . her conduct and offense, shown an understanding of its causes, and

demonstrated remorse, the [Board's] mere refusal to accept such evidence is not itself a rational or sufficient basis upon

which to conclude that the inmate lacks insight, let alone that . . . she remains currently dangerous." ($In re Ryner (2011)

196 Cal.App.4th 533, 549.) The court ordered a new hearing for Hall in accordance with this opinion within 90 days of its

finality. ($In re Prather (2010) 50 Cal.4th 238, 258.)

$IN RE KENNETH FERGUSON, WL6621751, CA4/1, (12-19-12), NON-PUBLISHED. Congratulations to Attorney

Marc Norton for a job well done in this case. It is hard to win in the court of appeal for the 4/1. Ferguson had served

about 16 years in prison after being sentenced to a life sentence for his 1996 conviction for torturing his wife, Alida

Ferguson. He challenges the 2010 parole denial. The court of appeal granted the case as follows. Ferguson had no

arrests or convictions as a juvenile. His only adult conviction is the instant offense, committed when he was 52 years old.

He has a college education and no history of drug use or alcohol abuse. In July 1995, after 23 years of marriage, Alida

informed Ferguson that she wanted to divorce him. On August 28, 1995, while their son was out of the house, the couple

got into an argument about how to divide Alida's jewelry. Because Ferguson looked angry, Alida decided to leave the

room. She picked up some laundry and went to the laundry room. As she stood in the laundry room, Ferguson hit her from

behind with a 12-inch wrench. Alida collapsed to the floor after Ferguson hit her several times in the head. Ferguson

continued the attack as Alida lay face down on the floor. Eventually, Ferguson put down the wrench, tried to suffocate

Alida with a blanket, and then choked her around the neck. During the struggle, Alida bit Ferguson's thumb until he

stopped the attack. Alida fled the home after Ferguson left the room. A house cleaner working in the house next door saw

Alida come out of the garage and a man follow her carrying a wrench, but the man did not leave the garage. Ferguson

called 911 claiming that Alida had attacked him. They were both transported to the hospital where it was discovered that

Alida had a fractured skull, contusions, numerous cuts to her head, a compound finger fracture and a large contusion to

her right arm. Alida had a total of 13 wounds to her head. Although some of the wounds could have been caused by the

same blow, there were at least 10 to 11 incidences where some object hit her head. Ferguson has been a model inmate

during his incarceration; i.e., no 115s, education-vocations, tutor, self-help, religion, laudatory chronos, and positive psych

reports. The court found the Board's reasons for finding Ferguson unsuitable for parole are not well articulated. It appears

the Board concluded that Ferguson remained a risk to society because he (1) lacked insight and remorse into "the immense

magnitude of" what he caused because he focused his comments on himself, and (2) lacked adequate parole plans. As the

dissent notes, the record contains "some evidence" suggesting that Ferguson's statements regarding his insight and

remorse lack credibility; however, simply establishing that Ferguson's statements regarding his insight and remorse are

deficient is insufficient unless there is some connection between the cited deficiency and the conclusion of current

dangerousness. ($In re Morganti (2012) 204 Cal.App.4th 904, 923.) Here, the Board and the (Continued next page)


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(FERGUSON continued) dissent fail to articulate a rational nexus between Ferguson's lack of credibility and the

determination that he is currently dangerous. Here, after the Board described the crime, Ferguson's counsel asked him to

address what remorse meant to him. Ferguson stated, "I completely accept responsibility for the crime. I own the crime. It

should never have happened. There's absolutely no excuse for it." When asked to explain his sorrow, Ferguson responded,

"It's something I live with. It's something that I think about constantly. It's something I wish I could go back and change

constantly. I know I can't do it." When asked how he is making amends for the crime, Ferguson stated that as a peer health

educator, he tries to ensure that other prisoners are staying healthy and as a literacy teacher, he helps others whose first

language is not English. In his closing statement, Ferguson took "total and complete" responsibility for what he did to his

"innocent victim," stating that his act was "senseless and cowardly." He expressed his "bitter remorse" for his act,

acknowledging the "hurt and suffering" he caused Alida. He agreed with the prosecution's version of the crime, stating

that he lost control of himself. He addressed at length the other options and choices he had and where he could have

turned for help. He stated that his "out-of-control anger" led to his behavior and he understood that he needed to remove

himself from the situation. He "chose fight and not flight," stating, "I will never fully understand my failed choice," but

indicating he had gained insight from the classes and programs he has taken, and that his conduct in prison reflects his

current choices. The record here supports the sincerity of the statements not only from the record by the 2004, 2006, and

2008 psych reports. The Board seems to have completely ignored this evidence and based its lack of insight finding

solely on the fact that Ferguson's closing statement focused on himself, and not Alida or their son, and the harm he caused

them. Ferguson prepared his closing statement in advance of the hearing. It turns out, however, the Board wanted

Ferguson to concentrate on himself as it instructed him to focus and direct his closing statement on "why you feel you're

suitable for parole." In other words, the Board asked Ferguson to speak about himself. The Board never asked Ferguson to

address how his actions had impacted Alida or their son. In its decision, the Board claimed it was not "pick[ing

Ferguson's] words apart." However, this is exactly what it did. We will assume that the Board did not believe Ferguson's

repeated expressions of remorse and insight; and thus, some evidence suggests he may be unsuitable for parole. The next

step is to establish a connection between these deficiencies and current dangerousness. ($In re Lawrence (2008)

44Cal.4th 1181, 1205.) ["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."].) It is not enough for the Board to simply state we do not believe the inmate's expressions

of insight and remorse and thus find the inmate is currently dangerous. Such a standard, because it would leave potentially

arbitrary decisions of the Board or the Governor intact, would be incompatible with our recognition that an inmate's right

to due process' cannot exist in any practical sense without a remedy against its abrogation.'" (Lawrence, supra, at 1211.)

Ferguson is nearly 70 years old. He committed a single horribly violent criminal act while subject to significant and

unusual emotional stresses that are not likely to recur. He has a perfect prison record. The experts who evaluated Ferguson

all concluded that he does not present a risk of danger to the community. His acceptance of responsibility for the life

crime and expressions of remorse and insight into what triggered his violent conduct are consistent and undisputed.

"Where, as here, undisputed evidence shows that the inmate has acknowledged the material aspects of his or her conduct

and offense, shown an understanding of its causes, and demonstrated remorse, the [Board's] mere refusal to accept such

evidence is not itself a rational or sufficient basis upon which to conclude that the inmate lacks insight, let alone that he or

she remains currently dangerous." (In re Ryner (2011) 196 Cal.App.4th 533, 549.) The Board read out loud Ferguson's

parole plans as planning to live at the Salvation Army in San Diego or the Free Methodist Church Home Free Ministries

in Placentia, being eligible for social security benefits, and having a letter dated August 2009 from Patricia Oso that

extended Ferguson an employment opportunity and offered to assist him with housing. In its decision, the Board noted

that there were no letters updating Ferguson's parole plans and concluded that his parole plans were lacking. Ferguson

claimed to have developed marketable skills in the healthcare industry and the Board reviewed comments from three

correctional officers supporting this assertion. In addition to having marketable skills, Ferguson was eligible for social

security benefits and had a trust account from his mother containing $90,000. Ferguson clearly has the means to find a

place to live and support himself without a current job offer. The Board's concern about Ferguson's inadequate parole

plans was not supported by the record. Ferguson was ordered to receive a new parole hearing. Congrats Marc, nice job. One of ECC’s clients wrote the following in a letter: “THANK YOU SO VERY MUCH FOR ALL YOUR EFFORTS

ON MY BEHALF. IT IS GREAT TO BE HELPED BY A ‘GORILLA’ IN THIS JUNGLE CALLED PRISON.”

http://scholar.google.com/scholar_case?case=8021418719818263526&hl=en&lr=lang_en&as_sdt=2,5&as_vis=1


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$IN RE JOE DENHAM, 211 Cal.App.4TH

702, CA1/3,

(12-6-12), PUBLISHED. Petitioner was convicted in

December 1983 of first degree murder of Jose Mendoza,

attempted murder of John Tappan, two counts of robbery

and two counts of kidnapping. He is currently serving an

indeterminate sentence of 31 years to life. His minimum

eligible parole date was September 21, 2003. In April

2010, the Board denied parole for three years. The

Alameda County Superior Court denied the petition. The

court of appeal granted the petition as follows. In 1982,

John Tappan went to the Campbell Village Projects with a

black male, known to him by the name of “Gator,” in

order to buy some tires. . . . Tappan parked his car in a lot

located at the corner of Tenth and Campbell Streets while

Gator went to look for the tire connection. Gator never

returned. In the meantime, Tappan fell asleep in his car

with the car radio on. Tappan woke up to find his battery

dead. It is now sometime between 5:00 and 6:00 p.m.

Tappan attempted to get a jump for his car, but was

unable to get any assistance from the locals at Campbell

Village. At some point, Tappan . . . went to the Standard

Gas Station at the corner of Seventh and Cypress Streets

where he met gas station attendant, Jose Mendoza.

Tappan paid Mendoza $10.50 for road service and both

victims returned to Tappan's car with jumper cables in

hand. [Mendoza] took his car to the scene so as to enable

him to jump Tappan's car off the battery. While they were

attempting to start Tappan's car, five to six people

surrounded them with at least two guns. Tappan was

robbed of some jewelry, a knife and two guns that he had

on him at the time. Mendoza had a buck knife that he

used at work removed from him. Tappan identified Willie

Johnson and Denham as two of his assailants at that time.

After Tappan was robbed, it was suggested that he was

one of “Grem's boys” by one of [the] attackers, that

reference being to Oakland Police Department Vice

Officer Everett Gremminger. Mendoza was known to

these defendants due to the fact of his employment at the

gas station that the defendants had been known to

frequent. At that point, the victims were marched across

the street to Prescott School to an enclosed courtyard area.

During the walk across the street, defendants Willie

Johnson, Michael Aaron, Denham, Richard Bell and

Bernard Adams were spotted by Louiell Davis, a lookout

for the dope gang they all belong to. Davis saw

defendants march Mendoza and Tappan into the

schoolyard. A few minutes later, screams and gunshots

were heard by Davis, who subsequently saw people

running from the schoolyard. Mendoza was stabbed and

shot numerous times and was already dead at the time

police arrived at the scene. Tappan was stabbed

numerous times and was shot in the face, the bullet

lodging in his neck after deflecting off his jawbone.

Tappan survived the attack. The Board denied parole

based on (1) the gravity of the offense, (2) escalating

pattern of criminal conduct, (3) his unstable social history,

as manifested by his having been a drug dealer before he

was incarcerated, and (4) his past mental state and attitude

towards his crime because he is in "denial" and "lacks

insight into the causative factors of his conduct, even

today." The court of appeal found there is no question

that the life crime was egregious As the Board noted, the

victims were surrounded, relieved of any weapons, and

marched from one location to another where they were

brutally assaulted and one victim was murdered. The

Board found the motive for the commitment offense was

monetary gain. Although that might have been an

incidental motive, there is evidence to suggest the primary

motive for the murder was to eliminate someone who was

believed to be cooperating with a narcotics agent. If true,

that motive would underscore the egregious nature of the

crime. However, even an egregious commitment offense

may only be relied on to deny parole if it is predictive of

current dangerousness. Next, the Board's conclusion that

he lacked insight is the lynchpin of its decision as the

commitment offense is only relevant if his current mental

attitude establishes that despite his excellent and long-

standing intervening conduct, he would still pose an

unwarranted risk to public safety if released. The Board

apparently believed that Denham’s claim he played a

peripheral role in the crime shows he is minimizing his

involvement and failing to take responsibility for the

crime, commensurate with the part he actually played in

it. However, we see no evidentiary foundation for the

Board's belief. Where an inmate's denial of guilt is

factually unsupported or otherwise incredible, it may be

taken as evidence of lack of insight. For example, in

Shaputis, the defendant's claim that he killed his wife by

accident was contradicted by the facts that the hammer of

the gun had to be manually cocked before the trigger

could be pulled and a transfer bar required a person to

pull and hold back the trigger in order to fire the gun.

There was also evidence showing he delayed in calling

for emergency assistance for his wife. In other words,

there were specific facts to support the conclusion that

Shaputis was not honest and forthright in claiming that

what had happened had not been accidental. Because his

distortions, if they had been (Continued next page)


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(DENHAM, continued) believed, all tended to indicate he was less culpable for the crime, there was evidence to show he

was minimizing his culpability. (See $In re Coronel (2012) 210 Cal.App.4th 1218, 1250 [contrasting cases where inmates'

version of events were not incompatible with the evidence and therefore did not support a conclusion that the inmate

lacked insight with cases where specific evidentiary discrepancies supported the conclusion that the inmate lacked

insight].) In this case, the Board cites no evidence establishing that Denham’s participation in the crime was anything

other than what he described at the 2010 parole hearing. Indeed, the only evidence in the record that bears on the

credibility of his rendition tends to corroborate it. He admits to punching Tappan a couple of times to establish his

credibility with the group. Although we do not have any witness testimony from the trial, the record does include the trial

sentencing minutes. At that proceeding, counsel for Denham and some of his coparticipants, and the trial prosecutor made

uncontradicted references to the fact that one of Denham’s coparticipants was the main instigator, Denham and a

coparticipant were with Tappan while other coparticipants were behind a wall with Mendoza, and the coparticipant with

Denham accused the latter of "do[ing] nothing." Had Denham been a major actor, it is unlikely a co-participant would

have accused him of not doing enough to facilitate the crime. The fact that Tappan identified Denham as one of his

assailants is also fully consistent with Denham’s admission that when the group went into the school yard, he stayed with

Tappan while other members of the group went behind a wall with Mendoza. Thus, it is no surprise that Tappan was able

to identify Denham. We therefore conclude "the record cannot be reconciled with the conclusion [Denham] minimized his

responsibility. [T]he required `nexus between the evidence and the ultimate determination of current dangerousness'

[citation] is absent." ($In re Sanchez (2012) 209 Cal.App.4th 962, 973 (Sanchez); see $In re Hunter (2012) 205

Cal.App.4th 1529, 1539-1540, 1544.) The Board's speculation as to what Denham should have known about his

coparticipants' intentions "prevented any meaningful evaluation of the evidence and led instead to the unsupported and

therefore arbitrary conclusion [Denham] rejected responsibility for his actions." (Sanchez, supra, 209 Cal.App.4th at p.

974.) A Board's "mere refusal to accept . . . evidence showing [understanding and remorse] is not itself a rational or

sufficient basis upon which to conclude that the inmate lacks insight, let alone that he or she remains currently

dangerous." ($In re Ryner (2011) 196 Cal.App.4th 533, 549; see also $In re Rodriguez (2011) 193 Cal.App.4

th 85, 95

[denial of parole may not be based on hunches or intuition].) The court also struck down Denham’s "escalating pattern of

criminal conduct," which was purportedly evidenced by his pre-incarceration arrests for which he sustained no criminal

convictions, and his 1987 conviction for weapons possession while in prison. The regulations concerning parole suitability

say nothing explicitly about escalating criminal conduct. The Board also relied on his "unstable social history" based on

the fact that "he was involved in drug sales prior to incarceration." However, Denham’s involvement in selling drugs does

not address his social history as that factor is defined in the regulations. An "unstable social history" is defined as a

situation where "[t]he prisoner has a history of unstable or tumultuous relationships with others." (Regs., § 2402, subd.

(c)(3).) Conversely, "a stable social history" is defined as a situation where "[t]he prisoner has experienced reasonably

stable relationships with others." (Id., § 2402, subd. (d)(2).) Here, there is no evidence of any tumultuous or particularly

unstable relationships. In addition, given his lack of any substance abuse history since 1986, his long-standing

participation in 12-step programs, and his development of prosocial vocational skills, the Board must explain how his pre-

incarceration history as a drug dealer predicts his current dangerousness. It was never done. Denham gets a new hearing.

$S.M. SALINAS, as WARDEN AT DEUEL VOCATIONAL INSTITUTION, Petitioner, v. THE SUPERIOR

COURT OF SANTA CLARA COUNTY, RESPONDENT, RICKY A. CARPENTER, REAL PARTY IN

INTEREST, WL6622621, CA6, (12-20-12), NON-PUBLISHED. The warden at DVI petitions this court for writ of

mandate and or prohibition to prevent the Superior Court from holding an evidentiary hearing in the case of Carpenter on

Habeas Corpus to determine whether a life term inmate's rating of moderate risk for violence on a risk-assessment

instrument is evidence of an unreasonable risk of violence. The court of appeal concluded that the superior court acted in

excess of its jurisdiction in ordering the evidentiary hearing as follows. In May 2009, life term inmate Carpenter was

given a psychological evaluation in preparation for an upcoming parole suitability hearing. Forensic psychologist Richard

Hayward recorded that Carpenter "has displayed signs of improving maturity during his incarceration [and] currently

displays improved interpersonal skills and an increased awareness of the impact of his actions on others," but that he

never developed the capacity to experience empathy while growing up and "remains deficient in this area." Carpenter

scored in the moderate range of psychopathy when compared to other male offenders, based in (Continued next page)


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(CARPENTER, continued) large part on his juvenile

history and the commitment offense. In the test that

assesses likelihood of future violence, Carpenter was

"elevated" in the historical domain, "displayed only a few

of the predictive factors for recidivism" in the clinical

domain (which assesses current and dynamic factors), and

was possibly elevated in the management of future risk

domain. Overall, he scored in the moderate range for

violent recidivism. On the test designed to evaluate the

risk of recidivism (whether violent or not), Carpenter was

in the moderate level, with his recent pro-social behavior

serving to lower his risk to that moderate level. Dr.

Hayward wrote that "[a]fter weighing all the data from the

available records, the clinical interview, and the risk

assessment data, it is opined that Mr. Carpenter presents a

moderate risk for violence in the free community." In

September 2009, the Board denied Carpenter parole for

three years. He sought habeas relief in the Superior Court,

and on September 24, 2010, that court ordered the Board

to hold a new suitability hearing for Carpenter within 30

days, or by October 22, 2010. At the October 2010

hearing, the Board used the same May 2009

psychological evaluation it had used at the previous

hearing, as it was still the most recent evaluation. The

Board granted Carpenter parole, but the deputy

commissioner at the hearing told Carpenter, "I wanted to

put on the record that I had concerns because of the

psychological evaluation, of course, I would. The

diagnostic tools have said you're a moderate risk of

violent reoffending. I thought you and your counsel

rebutted that well by pointing out that other reports had

placed you at a low level. You also rebutted it just simply

by your behavior over the last decades of avoiding

violence in an institution." The Governor reversed the

parole grant. Carpenter filed again in the superior court

and among other things, his "petition squarely presents

the question of: Just what does a `moderate' rating mean?

To a lay person the word moderate . . . connotes

something in the range of a 50% risk. That is to say, a

`moderate' rating may . . . make it seem the odds are even

that the person will reoffend. However, this Court is

aware from other petitions and forensic evaluations that

the terms `low,' `moderate' or `high' are not measures on a

scale of 100%, but rather are comparisons to the `base

rate' of the population to which the inmate belongs. It has

been said that moderate essentially means average for the

kind of risk being considered and therefore does not

indicate `elevated risk' as the Governor states. [¶]. . . If

`moderate' simply equates to average for any life term

inmate who has surpassed his MEPD then it may be the

case that a `moderate' rating cannot, as a matter of law, be

grounds for a parole denial given that there is a

presumption that parole shall normally be granted. (PC §

3041.)" The AG filed a return. Carpenter filed a traverse

that included a declaration from forensic psychologist

Melvin Macomber, who attested that he had for 40 years

been treating and evaluating life term inmates for the

Department of Corrections and Rehabilitation. Dr.

Macomber said that the two primary tests used in these

evaluations were not standardized and tested for accuracy

on inmates and therefore should not be used to predict an

inmate's risk of dangerousness. He said it was simply not

possible to develop measures that predict an inmate's risk

of future violence because there is not a large enough

population of life term inmates released on parole who

recidivate. He wrote that "what is `low,' `moderate,' or

`high' risk is subjective and varies greatly from one

assessor to the next (one psychologist or Board member

may feel that a 15% risk is low, while others may term it

moderate or high)." In a separate letter, he wrote that

"[e]veryone knows that the true violence potential of

released murderers that have served decades in prison is

less than 1%." On October 28, 2011, the superior court

ordered an evidentiary hearing to determine if Carpenter's

"`moderate' risk rating was relevant and reliable." In

November 2011, the AG filed a motion to vacate the

order for an evidentiary hearing. However, on December

29, 2011, the court denied the AG's motion. The court

wrote that "the slight expense Respondent will suffer will

be offset many times by the savings realized if it is

established either (1) that suitable inmates are being

improperly denied parole based on invalid risk assessment

ratings, or (2) that the `FAD' protocols are valid and this

issue need not be litigated again." The superior court

reframed the issue to be addressed at the evidentiary

hearing as follows: "under even the most favorable

professional definition of `moderate,' does such a rating

provide evidence of an `unreasonable risk?'" The court

added, "In short, the purpose of the hearing will not be to

weigh into, or resolve, conflicting views among scientists.

Its purpose is to determine whether the parole decision

maker is misinterpreting and misapplying the

psychologists' unanimous intent and meaning when they

give that rating." The AG filed a petition for writ of

mandate and/or prohibition. A writ of prohibition lies to

restrain a threatened exercise of judicial power in excess

of jurisdiction. (Code Civ. Proc. § 1102.) Any acts that

exceed the defined power of a (Continued next page)


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(CARPENTER, continued) court in any instance, whether that power be defined by rules developed by the courts and

followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those

acts may be restrained by prohibition. The court of appeal found “the superior court's order for an evidentiary hearing

contemplates the presentation of expert witnesses to answer questions on the efficacy of the moderate risk for violence

rating on risk-assessment instruments as applied to life-term inmates. At a minimum, the Board will have to pay for and/or

make use of an attorney and at least one expert witness to attend a hearing in Santa Clara County; money and resources

will have to be expended. In these days of strained budgets and limited resources, appeal is not an adequate remedy for

such losses. Let a peremptory writ of prohibition issue restraining respondent superior court from conducting an

evidentiary hearing.”

$IN RE JAMES L. STEVENSON, WL97758, CA6, (1-9-13), NON-PUBLISHED. Stevenson is currently serving an

indeterminate life term for a 1998 conviction of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)). He prevailed

in Santa Clara Superior Court against the Board’s parole denial. The court of appeal reversed as follows. During the

2010 hearing, the Board 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. Of note,

petitioner was asked about the triggers for his anger. He first stated that he never had anger issues but he had taken the

program just to learn more. He then said his trigger was not having enough money and being able to afford the things he

wanted to buy for his family or son. When asked how he recognizes his triggers for anger, petitioner said he did not know

how to answer that because he did not believe he "ever had an anger issue." He admitted that he may have had a lot of

problems but anger was not one of his issues. In addition, when given an opportunity to make any closing statements,

petitioner had little to say. Petitioner said he was ready for parole, the CDC would never have to worry about him again,

and he prayed that the panel would give him a chance. The Board denied parole based on "the offense was carried out in a

very dispassionate and calculated manner." The petitioner had been "lying in wait up at the card room, the victim was

followed and again confronted when he left his vehicle." It was also significant that petitioner was on probation for a prior

weapons offense at the time of the commitment offense and he had failed to profit from county jail time and adult

probation. The panel thought that petitioner, by again mentioning that he had no intent to kidnap, was engaging in "a

certain degree of minimization." The panel indicated that it had considered the two psychological reports, the September

2009 report from Dr. Black and the 2010 report from Dr. Lehrer, which were described as unfavorable. The panel also

considered petitioner's misconduct while incarcerated, including the three 115's, the most recent for destruction of state

property in 2002, and the six 128's, the most recent for smoking in 2002. It also considered petitioner's limited

programming. The superior court faulted the panel for its characterization of the robbery, stating: "Kidnapping for robbery

always involves a motive of monitary [sic] gain so for the instant panel to call the motive `trivial in relation to the offense'

demonstrates such a basic misunderstanding of their duties that the entirety of their `findings' are suspect. Similarly, to

call the crime `dispassionate' and `calculated' seems to reveal that the Board was following a script meant for murder

cases instead [of] giving Petitioner individualized consideration." The court mentioned that the previous panel had

concluded that the offense was "not egregious and was `not a consideration'" and then commented that the present panel's

"diametrically opposite findings demonstrate how arbitrary and capricious the various panels can be." In suggesting that

the Board was following "a script for murder cases" instead of considering petitioner's individual circumstances, the

superior court improperly strayed into the area of prohibited speculation. The commitment offense was carried out in a

dispassionate and calculated manner in the sense that it was planned and the perpetrators waited (Continued next page)


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(STEVENSON, continued) for each victim to exit the

card room, followed the victim home, and then robbed the

victim. It was neither an impulsive crime nor a crime of

passion. The panel could reasonably conclude that

petitioner had a petty motive in that petitioner wanted to

rob another person because petitioner had been recently

robbed and was indifferent to his victim's suffering.

Neither the present panel's description of the commitment

offense nor a comparison of the present panel's and past

panel's descriptions of that offense establish that the

Board's decision to deny parole was arbitrary. Each parole

suitability hearing is a "de novo hearing" and the Board is

not bound by previous findings and conclusions. (See §

3041.5, subd. (c).) In the decision, petitioner was told that

the risk assessments of Drs. Black and Lehrer "represent

some evidence to this Panel as to your current and

unreasonable risk of danger to society." The superior

court found the panel's statement "particularly troubling

because `some evidence' is the highly deferential standard

of review" used for judicial review and the "Board should

not see its role as being to mine the record before it for

such a low threshold as `some evidence' to base a parole

denial upon." The court below once again veered off into

prohibited speculation. In granting habeas relief, the

superior court stated that "in the review of broadly

discretionary decisions due process requires examination

of the reasoning given not the result achieved.

[Citations.]" It indicated that the Board had not

"formulated the reasoning, and nexus. . . ." While the

panel did not lay out its every inference and all supporting

evidence in support of its decision, the panel's decision

was accompanied by a statement of reasons for finding

petitioner dangerous and denying parole. The record does

not reflect that the Board merely engaged in a "rote

recitation" of factors. When petitioner had the

opportunity to speak to the panel, petitioner did not

demonstrate that he had addressed the identified

shortcomings in his relapse plan. With respect to handling

potential destabilizing situations with his wife or his

wife's friends, petitioner was still implying at the hearing

that the heroin found in his wife's motel room did not

belong to her by stating that she had been staying with

two other females and she had not been trying to bring

drugs into prison. In his comments to the panel, petitioner

did not answer Dr. Lehrer's concern that petitioner was

rationalizing the situation and did not actually know that

the drugs discovered did not belong to his wife. The

psychologists' reports supported the Board's conclusion

that petitioner was not yet suitable for parole. Although

petitioner had been imprisoned since 1998, the

psychological reports indicated that, aside from his

AA/NA involvement, petitioner had only relatively

recently completed a number of self-help programs.

Petitioner had taken an anger management course but, at

the hearing, he was unable to demonstrate what he had

learned and he could not readily identify his personal

triggers for anger. Anger may have played a role in his

decision to rob someone since he had apparently

committed the robbery in reaction to being robbed

himself. He contradictorily admitted that he had felt angry

about being convicted of kidnapping and denied having

any issues with anger.

BAGDASARYEN V. SWARTHOUT, WL6203113,

#2:11-CV-03314-JAM-DAD, E.D.Cal., (12-11-12),

NON-PUBLISHED. This is the most recent case that

explains the AEDPA and its time bar application. Statute

of Limitations Under the AEDPA. The AEDPA

imposes a one-year statute of limitations on the filing of

federal habeas petitions. Title 28 U.S.C. § 2244 provides

as follows: (d) (1) A 1-year period of limitation shall

apply to an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a State

court. The limitation period shall run from the latest of —

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time

for seeking such review; (B) the date on which the

impediment to filing an application created by State

action in violation of the Constitution or laws of the

United States is removed, if the applicant was prevented

from filing by such State action; (C) the date on which the

constitutional right asserted was initially recognized by

the Supreme Court, if the right has been newly recognized

by the Supreme Court and made retroactively applicable

to cases on collateral review; or (D) the date on which the

factual predicate of the claim or claims presented could

have been discovered through the exercise of due

diligence. (2) The time during which a properly filed

application for State post-conviction or other collateral

review with respect to the pertinent judgment or claim is

pending shall not be counted toward any period of

limitation under this subsection. Background. On

January 7, 2010, petitioner received a parole hearing and

was denied. That decision became final on May 7, 2010.

On April 27, 2010, petitioner signed his habeas petition

filed with the L.A. Superior Court in which he challenged

the Board's 2010 decision. On July 1, 2010, that petition

was denied. On August 25, 2010, (Continued next page)


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(BAGDASARYAN, continued) petitioner signed a proof of service for his "Motion For Rehearing" filed in the Court of

Appeal. On September 22, 2010, the motion was denied. On September 30, 2010, petitioner filed a petition for review

with the California Supreme Court. On November 23, 2010, that petition was summarily denied. The petition pending

before this court was signed on November 20, 2011, and filed with the U.S.D.C. for the Central District. On December

14, 2011, this action was transferred to and filed in this court. Respondent's Motion to Dismiss. Respondent argues that

the statute of limitations began to run on January 8, 2010, one day after the parole consideration hearing. Respondent

contends that on the date of the hearing, petitioner became aware of the factual predicate of his claims. According to

respondent, the statute of limitations continued to run for 109 days until it was tolled by petitioner's filing of a habeas

petition with the Superior Court on April 28, 2010. Tolling continued until the California Supreme Court ultimately

denied his petition for review on November 23, 2010. Respondent contends that petitioner's federal habeas petition was

not filed until 378 days later on November 23, 2011, when it was transferred to the U.S.D.C. for the E.D.Cal., 122 days

after the applicable one-year statute of limitations had expired. Petitioner's Opposition. Petitioner asserts that the statute

of limitations began to run on November 23, 2010, when the California Supreme Court denied his petition for review.

Petitioner also contends that his federal habeas petition was filed when he delivered it to prison authorities for mailing and

not on the date that it was transferred to this court by the U.S.D.C. for the C.D.Cal. Petitioner refers to the transfer order

which he notes advises only that the district of confinement is the preferred forum for the petition and does not state that

his federal habeas petition was improperly filed in the Central District. Application of § 2244(d)(1). The statute of

limitations is based on § 2244(d)(1)(D), the date on which the factual predicate of the claim or claims could have been

discovered through the exercise of due diligence. In the context at issue here, "[c]ourts ordinarily deem the factual

predicate to have been discovered the day the decision becomes final, i.e., 120 days after the Board finds a petitioner not

suitable for parole." In this case, was on May 7, 2010. Thus, the statute of limitations began to run on May 8, 2010.

Application of § 2244(d)(2). "The time during which a properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or claim is pending shall not be counted" toward the AEDPA

statute of limitations. 28 U.S.C. § 2244(d)(2). The statute of limitations is not tolled during the interval between the date

on which a judgment becomes final and the date on which the petitioner files his first state collateral challenge because

there is no case "pending." (Citation omitted.) Once a petitioner commences state collateral proceedings, a state habeas

petition is "pending" during one full round of review in the state courts, including the time between a lower court decision

and the filing of a new petition in a higher court, as long as the intervals between the filing of those petitions are

"reasonable." ($Carey v. Saffold, 536 U.S. 214, 222-24 (2002), 60-days.) It is undisputed by respondent that petitioner is

entitled to statutory tolling of the limitations period from the date his habeas petition was filed with the Superior Court

until his petition for review was denied. The intervals between petitioner's filing of his state habeas petitions at each level

of review were reasonable. Statutory tolling applies during that entire period of time that he was pursuing relief in state

court, from May 8, 2010 through November 23, 2010. The one-year statute of limitations for federal habeas petition

began to run on November 24, 2010. Filing Date for Federal Petition. Petitioner's federal habeas petition was signed on

November 20, 2011, and was filed with the U.S.D.C. for the C.D.Cal. on December 6, 2011. The case was then

transferred on December 14, 2011, from the judicial district from where petitioner was convicted (Central District) to the

Eastern District where petitioner was confined at the time of the parole hearing. Respondent (Continued next page)

Katey Gilbert Attorney at Law

1288 Columbus Ave #296

San Francisco, CA 94133

Tel: (415) 678-5166

Fax: (415) 291-0684

Parole Hearing Representation

Writs of Habeas Corpus

versus Governor, Board, CDCR

and Criminal Convictions

1045(A) Pet. To Advance Hearing

3-STRIKES PETITION

TO RECALL SENTENCE

http://scholar.google.com/scholar_case?case=14639956541922762890&q=Bagdasaryan+v.+Swarthout&hl=en&as_sdt=2,5

tel:%28650%29%20464-0785

tel:%28415%29%C2%A0291-0684


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(BAGDASARYAN, continued) argues the statute of limitations for the filing of the federal habeas petition continued to

run until the petition was transferred to this court because it was not properly filed by petitioner in the U.S.D.C. for the

Central District. Respondent's argument in this regard is unpersuasive. First, the general rule with regard to habeas

applications is that both the U.S.D.C. in the district where petitioner was convicted and the District Court where petitioner

is incarcerated have jurisdiction over the claims. (See $Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973).)

Petitioner was convicted in the L.A. County Superior Court which is located within the boundaries of the Central District

of California. Accordingly, his federal habeas petition was obviously properly filed in the Central District. Petitioner is

correct that the transfer of his habeas action by that court to this court did not call into question the appropriateness of his

filing in that district. Moreover, even if the Central District was an improper venue for this action, the filing date of the

petition following the transfer would still be deemed the date petitioner signed his petition and submitted it for filing in

the Central District. (See $Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir. 1999).) ("A compelling reason for transfer is that

the plaintiff, whose case is transferred is for statute of limitations purposes deemed by section 1631 to have been filed in

the transferor court . . . will be time-barred if his case is dismissed and thus has to be filed anew in the right court.");

(citing Rule 22(a) of the Federal Rules of Appellate Procedure and holding that even where a case is filed in a court

without jurisdiction and the court transfers the action, it "shall proceed as if it had been filed in . .. the court to which it is

transferred on the date upon which it was actually filed in . . . the court from which it is transferred."). Although the

statute of limitations for petitioner's filing of a federal habeas petition would have commenced running on May 8, 2010,

on that same date the statute of limitations was tolled since he was already pursuing his round of state collateral review. In

effect then, the statute of limitations for the seeking of federal habeas relief did not commence until November 24, 2010,

the day after the California Supreme Court denied petitioner's petition for review. Petitioner therefore had until November

23, 2011 to file his federal habeas petition. That petition was filed on November 20, 2011, the date the federal habeas

petition was signed by petitioner. Therefore, the federal habeas petition pending before this court was timely filed three

days before the one-year statute of limitations expired and respondent's motion to dismiss that petition as untimely should

be denied.

ATTORNEY for LIFERS

Parole Hearings and Appeals

Prop 36: Petition for Re-sentencing

Diane T. Letarte, MBA, LLM

*MS Forensic Psychology 1080 Park Blvd., Ste 1008

San Diego, CA 92101

We “Fight” for YOU

Experienced, Competent and Reasonable

Completed over 1500 Hearings

Parole Hearings: Lose “INSIGHT” lately?

We work with Private Psychologists for

Rebuttal Letters

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3-Strikes Relief - Sentenced illegally?

“It’s not the size of the DOG in the fight,

It’s the size of the FIGHT in the dog.”

Former President of

San Diego NC Chapter of Lawyers Club

Judge Pro Tem, San Diego Superior Court

619-233-3688 E-MAIL: [email protected]

WEBSITE: www.renegade-attorney.com



http://www.renegade-attorney.com/


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Eccher & Chandler Consulting

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Anaheim, CA 92801

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