In re Adamar 12/22/10 CA2/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B223279

Case Date: 03/24/2011

Preview:Filed 12/22/10 In re Adamar CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

In re

B223279 (Los Angeles County Super. Ct. No. BH006554)

MICHAEL ADAMAR

on Habeas Corpus.

ORIGINAL PROCEEDING; petition for a writ of habeas corpus. Peter P. Espinoza, Judge. Petition granted. Richard Darington Pfeiffer, under appointment by the Court of Appeal, for Petitioner. Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Senior Assistant Attorney General, Phillip Lindsay, Supervising Deputy Attorney General, Amy M. Roebuck and Jennifer Cano, Deputy Attorneys General, for Respondent. _________________________________

On June 6, 1996, a jury convicted petitioner Michael Adamar of second degree murder and assault by means of force likely to produce great bodily injury. The jury also found that Adamar personally used a knife in the commission of the murder. The trial court sentenced him to an indeterminate term of 18 years to life. At Adamar`s initial parole hearing, conducted on January 16, 2009, the Board of Parole Hearings (Board) denied parole. Adamar filed a petition for a writ of habeas corpus contending that the Board`s decision violated due process because it was not supported by evidence demonstrating that he would currently be a danger to the public if released on parole. We agree with Adamar and grant the petition. BACKGROUND A. Commitment Offense The trial record, viewed in the light most favorable to the judgment, reveals the following: Adamar was a member of a tagging crew called DYP. On the night of October 22, 1994, Adamar, then 18 years old, attended a flyer party with other DYP members. Fourteen-year-old Jose Chavez and other members of a dancing or party crew known as the Layzees also attended the party, as did other party crews and a group of Cal State Northridge students calling themselves PGA. Juan Salvador was a member of the latter group. At some point during the party, members of the various crews present, including the DYP and the Layzees, shouted out the names of their groups. Chavez yelled, Fuck DYP. This apparently elicited no retaliation. Later, Chavez approached Ovando Ramos and another person outside the party and stated, Fuck DYP. Ramos replied that he was not from DYP, and Chavez retorted, Fuck where you are from. Ramos struck Chavez, who fell to the ground just as a group of DYP members who had left the party returned in cars and on foot. They had been alerted by DYP member Eric Hornquist, who approached them as they stood near their cars and told them that one of the Layzees was saying fuck DYP and fucking with Hornquist`s brother. Several members of the DYP group, including Adamar and his codefendant Brian James, said, Let`s go fuck `em up, meaning they should go back and

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fight the culprits. Adamar, James, and the rest of the DYP group returned to the party`s location by car. They arrived just as Ramos struck Chavez. Adamar, James, Michael Sperling, and Tremaine Bargeman got out of their cars and joined in, punching and kicking Chavez. Chavez lost consciousness. Salvador intervened by jumping on Sperling, and the DYP group, including Adamar and James, began punching and kicking Salvador. James stabbed Salvador on the left side of the ribcage while several other people, including Adamar, continued to punch and kick Salvador. A couple of people shouted out DYP during the assault. A crowd including members of the Layzees and the PGA began to approach. Bargeman pointed a gun at the crowd and told them to stay back. Adamar was behind Salvador and stabbed him in the shoulder area of his back. Salvador died of multiple stab wounds. The medical examiner classified two of the three stab wounds to Salvador`s back and the stab wound to his left ribcage as potentially fatal. Adamar got into a car with other members of DYP. Someone asked him, Did you shank him? Adamar replied, Yeah, or Yeah. I shanked him. Adamar was sentenced to an indeterminate term of 18 years to life with credit for 730 days. As stated, our summary of the commitment offense is based upon the trial record in Adamar`s appeal, B104284. It must be noted that the appellate opinion included factually unsupported descriptions of the circumstances attending the offenses. For example, the opinion stated that Adamar boasted that he shanked the victim. Our examination of the reporter`s transcript of Adamar`s trial reveals no testimony that Adamar`s tone of voice or any other circumstance suggested that his response when asked if he shanked Salvador was a boast. Another factually unsupported statement is the following: While the group chanted DYP,` Adamar and James stabbed Salvador with their knives, killing him. In actuality, three witnesses heard one person or a couple of people shout DYP at some point during the assault on Salvador. It is inaccurate to characterize an isolated shout or two at some point during an assault as chanting during the stabbing. With the filing of this opinion, the Board, Governor, Attorney General, and

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any psychologist or psychiatrist evaluating Adamar for parole suitability are on notice that they cannot rely upon the appellate opinion filed October 17, 1997, in case number B104284 as an accurate portrayal of the commitment offense. They should instead rely upon the description of the offense set forth in this opinion. At his parole hearing, Adamar explained that he was in a street fight and was fighting Jose Chavez and heard my friend, Mike Sperling, former friend, Mike Sperling . . . being beat up by Juan Salvador, I ran over there, and I looked at the house, and there [were] more Layzees coming out of the house, so my rational thought was hey, I need to get Mike up out of here because we`re outnumbered, and the fastest way I thought I could do it was maybe stabbing him in the shoulder, where I did, in the right shoulder to get some reaction to move him. Instead of pushing him. Adamar continued, [M]y mind wasn`t there. My rational thoughts weren`t there at the time. I felt that, you know, if you don`t get out of here, man, we`re probably -- we`re obviously going to be victims, going to be beat up. Adamar stated, I just wanted to get him off my friend, but what I should have done was pushed him or even tackled him or something in that nature . . . . The Board grilled Adamar over differences between his account of the crimes and that set forth in the appellate opinion, including whether he boasted about stabbing Salvador. It also challenged him about a contention raised by appellate counsel on appeal (challenging the trial court`s refusal to include among the heat of passion instructions it gave an additional instruction defining the types of emotions that could constitute heat of passion), asking why [i]n the appellate decision you [sic] indicated that you felt this crime was done in the heat of passion. Adamar responded that although he did not know much about law, he thought a street fight qualified as heat of passion. Adamar told the Board he always had difficulty expressing himself, and was having problems explaining his feelings about his crimes. But he reiterated that he took full responsibility for his actions.

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B.

Social History Adamar was born on November 22, 1975, in Southern California. He told Donna

Robinson, Ph.D., who prepared the September 24, 2008 psychological evaluation for Adamar`s 2009 parole hearing, that his parents were upper-middle-class and were always employed and remained happily married at the time of the Adamar-Robinson interview. His mother has a college degree and his father is a carpenter. Adamar has a younger sister. He told Robinson he had always had, and still maintained, loving, caring and supportive relationships with both parents, his sister, and other relatives. Adamar reported no violence, child abuse, or alcohol abuse in his family. Adamar was diagnosed with dyslexia at some point in his childhood. He required tutors and special education classes, and received mostly Cs, sometimes, Bs, and once in a while a D. He told Robinson he was never suspended or expelled from school and did not have excessive absences. He was a high school senior at the time of the commitment offenses and completed his high school diploma in 1995 while housed in the Los Angeles County Jail. Adamar played numerous team sports from an early age. In high school, he played varsity football. Adamar had no juvenile record. In June of 1994 he was convicted of vandalism and placed on summary probation on conditions that included serving 70 days in jail. Adamar told the probation officer this conviction related to his tagging activity. Adamar told Robinson he and 10 or 11 friends formed DYP when he was 16. He enjoyed driving past his artwork and seeing how long his tagging signature would remain before it was removed. Robinson further reported that Adamar described feeling drawn to the rush` of painting billboards, freeways, and businesses.` He stated that he was trying to find fame` for himself and rather enjoyed having people question his signature (Who?) on his tagging projects. He described this activity as an escape from boredom.` Robinson opined, [I]t was apparent that Mr. Adamar was drawn to the thrill and excitement of going out at night to participate in tagging activities. She characterized Adamar`s

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explanation that they did not tag homes as [n]otable minimization of this activity. Adamar told Robinson that he was no longer in contact with any of his former tagging crew friends or with James. Adamar`s best friend at the time of the offense was not a member of DYP and is now a police officer. Robinson considered this [n]otable. Adamar told the Board he got involved with tagging because I was living that edge. I was--you know, I wanted to fit in with taggers, something that it--you know, I started getting involved with . . . . Adamar acknowledged that taggers were [t]he wrong choice of friends . . . . C. Prison Record The California Department of Corrections and Rehabilitation (formerly the Department of Corrections) received Adamar on July 19, 1996, when he was 22. Prison authorities disciplined Adamar for misconduct on a total of three occasions: in March of 1997 for participating in a sit-down strike, in July of 1998 for willfully obstructing a peace officer, and in November of 2000 for manufacturing alcohol. Adamar told the Board that a fear of being attacked by the whites caused him to participate in the 1997 and 1998 incidents, which involved many inmates. His act of obstruction was to board up windows. The alcohol in the 2000 incident was made by and belonged to Adamar`s cellmate. Adamar said, I knew it was in there, so I take responsibility for, you know, but it wasn`t mine. Adamar also received one counseling chrono (a file notation without disciplinary consequences) in February of 2008 for failing to report to work. This incident also stemmed from collective action by a number of inmates who were attempting to obtain a self-help or therapy program for lifers. After prison staff at various levels ignored their repeated requests for help, a group of inmates decided not to go to breakfast. A sergeant then locked them in the gym, which precluded them from going to their work assignments. Adamar was working on an associate degree in business management and had completed approximately 31 units of college course work through distance learning courses provided by Coastline Community College and Palo Verde College.

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Adamar completed vocational training in auto body repair and silk screening. He had also received training in building maintenance and forklift operation. At the time of the parole hearing, he was waiting to take a test to complete his forklift operation certificate. He received laudatory chronos from his auto body repair and silk screening instructors. The latter commended [Adamar`s] excellent conduct and hard work. According to Robinson`s report, Adamar received above average performance ratings in these vocational programs. At the time of the parole hearing, Adamar had worked in the prison industries program making detergent and bar soap for about 18 months. His supervisors in that program wrote three letters in 2008 praising Adamar for hard work, exemplary performance, and professional conduct. One of the letters noted that he established an inmate safety committee. In April of 2009, his supervisor in the prison industries program rated him exceptional in teamwork, participation, and learning ability and above average in all other categories. The supervisor noted he was clearly an asset to PIA [prison industries authority]. Adamar had also worked in the prison dining room, as a porter, in building maintenance, and in yard cleanup. According to Robinson`s report, Adamar typically received average performance ratings in these assignments. Adamar had never been referred for or received any type of mental health services. He had undertaken and completed several self-help and therapeutic courses on topics, including anger management, conflict resolution, alternatives to violence, success strategies, and employment skills. He also completed the Friends Outside Parenting Program and participated in the Happy Hats for Kids Project. Adamar also received three laudatory chronos in April of 2007 stating that he was respectful to staff and inmaates [sic] and that he demonstrated a positive attitude, as well as[] being a hard worker and showing a willingness to help others. In January of 2008 he received two more laudatory chronos commenting on his positive attitude, his courtesy and respect towards staff and fellow inmates, and his willingness to work and help whenever needed.

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Robinson`s report noted that Adamar had never been involved in any conflict with other inmates or staff, had never initiated any aggressive behavior toward others while incarcerated, and had not affiliated with any violent gangs in or out of prison. She further reported that records reflected no outbursts of uncontrolled anger or impulsivity at any time in 10 years, suggesting that Mr. Adamar has a fairly well mastered sense of self-control. D. Parole Plans Adamar planned to reside either with his parents in Granada Hills or with his grandmother in Riverside. The Board received letters from Adamar`s parents and grandmother confirming that Adamar was welcome to live with these relatives. Adamar`s sister also wrote to the Board offering to let him live with her in Virginia. Adamar had no confirmed job offers, but he told both Robinson and the Board that he believed his father would be able to get him a job in construction. The Board received a letter from a senior human resources manager with the County of Los Angeles offering job assistance. Robinson`s psychological evaluation noted that Adamar had obtained marketable skills in auto body repair, silk screening, and operating a forklift, but he expressed uncertainty about how he could obtain a job on the outside while he remained incarcerated. Robinson characterized Adamar`s short-term residential plan as possible, but his plans for employment and eventual self-sufficiency were not at all developed. E. Mental Health Evaluation and Insight Into Offense Robinson`s psychological evaluation reported that Adamar did not suffer from any mental illnesses or personality disorders. She opined, [T]he absence of a major mental illness combined with his consistent discipline to acquire skills for self-improvement are viewed as protective factors against recidivism and concluded that there is no reason to believe that Mr. Adamar`s current mental status places him at risk for violence or reoffense. Moreover, his record of no serious rules violations for the past eight years and only one incident for a minor infraction represents a positive prognosis for continued self-

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control and non-violence. She also wrote, The records reflected no outbursts of uncontrolled anger or impulsivity at any time in 10 years, suggesting that Mr. Adamar has a fairly well mastered sense of self-control. She nevertheless opined, While Mr. Adamar admits his guilt in fighting with the first victim and stabbing the second victim, he displayed limited insight into the causative factors of his behavior in the life crime. Aspects of his account simply did not square with his behavior in the life crime. For example, he cannot explain what influenced his decision to carry a weapon for the first time` on the evening of the life crime. Neither can he find any explanation for using a weapon to defend his friend when a less violent method would have likely rendered the same outcome. He is likely correct that he was consumed with the emotions of the moment, which probably impaired his judgment. Nonetheless, it was this evaluator`s opinion that he has much work to do in order to take full responsibility for all of his behaviors, which contributed to the death of another individual. To assess Adamar`s potential for violence if released on parole, Robinson used an empirically based approach consisting of two separate assessment guides: the Psychopathy Check List Revised (PCL-R) and the History-Clinical-Risk Management20 (HCR-20). Adamar`s score on the PCL-R was low, which meant that he showed a lower risk of violence than approximately 90 percent of North American male offenders. On the HCR-20, Adamar ranked as a low-moderate risk for recidivism in the specific context of his current clinical presentation and the parole plans that have been offered, to date. Robinson noted, Historical items assessed with this instrument are static in nature and therefore, impossible to change. Adamar`s historic factors included his violent commitment offense, his prior conduct victimizing others by tagging, and his probationary status at the time of the commitment offense. Robinson wrote, With regard to Clinical risk factors for violent behavior, Mr. Adamar displays one of the predictive factors for recidivism: a lack of insight. It did not appear that Mr. Adamar had

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any significant insight into the elements in his personality structure that contributed to his behavior in the life crime and to prior and repetitive acts of vandalism. Rather, he attributed his behavior to poor influences and wanting to fit in.` This did not appear to be consistent with his childhood and adolescent history. Rather, he has demonstrated a long-standing attraction to activities that result in an adrenaline rush` and an inability to exercise better judgment when captivated by circumstances that promote that sensation. [

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