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ECC NEWSLETTER #4 JANUARY 2013
JUSTICE FOR ALL
Page-1
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.
ECC NEWSLETTER #4 JANUARY 2013
JUSTICE FOR ALL
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HELPING EVERYONE REGARDLESS ECC, 532 N. MAGNOLIA AVE. #333, ANAHEIM, CA 92801
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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.”
ECC NEWSLETTER #4 JANUARY 2013
JUSTICE FOR ALL
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HELPING EVERYONE REGARDLESS ECC, 532 N. MAGNOLIA AVE. #333, ANAHEIM, CA 92801
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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]
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
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.
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
$Gary Eccher (2007) 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
$Gary Eccher (2009) Orange Cty. v. Board
$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
$Gary Eccher (2010) Orange Cty. v. Board
$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
ECC NEWSLETTER #4 JANUARY 2013
JUSTICE FOR ALL
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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 $5.00 OR 20-POSTAGE STAMPS, (.45¢ OR FOREVER).
SEE LAST PAGE FOR MORE SERVICES.
ECC MOTTO: “Most things in life are chimpanzee stuff, but
every once in a while you need a gorilla. That’s what we’re for.”
ECC NEWSLETTER #4 JANUARY 2013
JUSTICE FOR ALL
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HELPING EVERYONE REGARDLESS ECC, 532 N. MAGNOLIA AVE. #333, ANAHEIM, CA 92801
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IN RE NELSON GAMEZ, WL6635047, CA6, (12-21-12), NON-PUBLISHED. Governor Brown reversed the grant of
parole issued by the Board. The Governor denied parole because of the heinousness of Gamez's crime and lack of insight
into the offense. The court of appeal found the Governor's decision is supported by the modicum of evidence required
under the "some evidence" standard. ($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).
ECC NEWSLETTER #4 JANUARY 2013
JUSTICE FOR ALL
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HELPING EVERYONE REGARDLESS ECC, 532 N. MAGNOLIA AVE. #333, ANAHEIM, CA 92801
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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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“Ben made the deputy district attorney (DDA) look like a fool. After the DDA finished his closing by telling many lies and making false statements, Ben opened his closing with; ‘I object to everything the DDA said, if this were a court of law I would ask that his closing be stricken from the record as speculation and hearsay. He then took apart and exposed all the DDA’s lies and misrepresentations.’”
Gary (Red) Eccher, free today.
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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 $90,000. Ferguson clearly has the means to find a
place to live and support himself without a current job offer. The Board's concern about Ferguson's inadequate parole
plans was not supported by the record. Ferguson was ordered to receive a new parole hearing. Congrats Marc, nice job. One of ECC’s clients wrote the following in a letter: “THANK YOU SO VERY MUCH FOR ALL YOUR EFFORTS
ON MY BEHALF. IT IS GREAT TO BE HELPED BY A ‘GORILLA’ IN THIS JUNGLE CALLED PRISON.”
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$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
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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?
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“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
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Eccher & Chandler Consulting
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Anaheim, CA 92801
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