In re Armstrong 6/2/08 CA4/1

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2008 » In re Armstrong 6/2/08 CA4/1

State: California

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

Docket No: D051629

Case Date: 08/13/2008

Preview:Filed 6/2/08 In re Armstrong CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

In re HOWARD ARMSTRONG on Habeas Corpus.

D051629 (San Diego County Super. Ct. No. HC18110)

Appeal from an order of the Superior Court of San Diego County, George W. Clarke, Judge. Affirmed. Howard Armstrong was sentenced in 1988 to 17 years to life in prison after a jury found him guilty of second degree murder with a firearm. Armstrong, now 53 years old, has remained in prison for nearly 20 years. After several unsuccessful parole hearings, the Board of Prison Terms (BPT), now the Board of Parole Hearings, found him suitable for parole at his 2006 suitability hearing when it concluded Armstrong did not pose an unreasonable risk of danger to society if released. However, Governor Arnold Schwarzenegger reversed the BPT's decision, finding Armstrong posed an unreasonable risk of danger to society if released. Armstrong successfully petitioned the trial court for a writ of habeas corpus in the trial court. Ben Curry, acting warden of the Correctional

Training Facility (Warden), appeals the trial court's order granting Armstrong's petition for a writ of habeas corpus, arguing Governor Schwarzenegger's decision was supported by some evidence and therefore must affirmed. I FACTS A. The Commitment Offense In 1986 Armstrong was a drug dealer. The victim, Mr. Sanders, was one of Armstrong's customers. On multiple occasions, Sanders had defaulted on his drug debts to Armstrong and Armstrong reacted by pointing a gun at Sanders's head as a threat. On one occasion, Armstrong pointed an unloaded gun at Sanders's head, pulled the trigger, and said "I'm going to kill you like this." On October 24, 1986, Armstrong went to Sanders's apartment with a loaded gun. Sanders's body was discovered that morning with a near-contact gunshot wound to the forehead. Armstrong admitted he fired the lethal shot. One witness told police the witness had spoken with Armstrong after the shooting and Armstrong admitted he had gone over to the apartment to "take care of [Sanders]" and had done so. Another witness told police Armstrong stated he had "some trouble" with Sanders and went to his apartment to "rough [Sanders] up but [he] got cocky" and "I lost my temper and I hurt him pretty good." Armstrong claimed the shooting was an accident. He went to Sanders's apartment and found a note attached to the front door demanding Sanders pay a debt owed to others. In Armstrong's version of the events, he entered the apartment with his gun drawn, found 2

it had been ransacked, and located Sanders. An argument ensued, and Sanders jumped up as though to attack Armstrong. In response, Armstrong swiped his gun hand at Sanders to fend him off. The gun fired once and killed Sanders. Armstrong was 31 years old at the time of the murder. A jury convicted him of second degree murder, with a true finding on the use of a firearm allegation, and he was sentenced to a prison term of 17 years to life. B. Armstrong's Performance in Prison Armstrong remained entirely discipline free during his incarceration. In addition to his unblemished discipline record, he furthered his vocational training through numerous programs, became involved in the Alcoholics Anonymous and Narcotics Anonymous programs, and consistently received laudatory reviews from prison staff. His numerous psychological reports during the past few years have been favorable and stated his potential for violence was no greater than that of the average citizen in the community. C. Other Suitability Factors Armstrong had marketable skills, realistic parole plans, and available support from his family and his stable marriage. Armstrong had no prior criminal record. At the time of the murder, Armstrong was undergoing significant stress in his life, including the loss of his job and the break-up of a long-term relationship associated with his drug use.

3

II HISTORY OF PROCEEDINGS A. The Prior BPT Proceedings Armstrong's minimum eligible parole date was in 1998. Although Armstrong apparently had several hearings before the BPT during the next eight years, the BPT found him unsuitable for parole at each of the prior hearings. However, at his 2006 parole hearing, the BPT concluded Armstrong was suitable for parole. The BPT considered Armstrong's testimony at the hearing, as well as the written reports. The BPT relied on his realistic parole plans and marketable skills, his demonstrated commitment to sobriety, his remorse and insight into his behavior, and his maturation and conduct during the previous 18 years to find he did not pose an unreasonable risk of danger to society if released on parole. In November 2006 Governor Arnold Schwarzenegger reversed the BPT's decision because he found Armstrong did pose an unreasonable risk of danger to society if released. The reason given for this finding was that the crime was especially aggravated because it involved some premeditation.1 Governor Schwarzenegger found the "gravity

1 The Governor's decision also mentions that Armstrong had not yet secured a job offer, and finding a way to financially support himself would be essential to Armstrong's success on parole. Additionally, the Governor stated that "[a]lthough Mr. Armstrong says he is remorseful and accepts responsibility for his actions, he maintains that the shooting was an accident." However, the Governor's decision did not find that Armstrong's lack of a job made his release dangerous to the community, and he did not find that Armstrong in fact did not have remorse for his actions that made him a danger to the community. We therefore confine our review to the evidence of unsuitability credited by the Governor and do not consider unsuitability factors apparently discounted by the 4

of the murder perpetrated by Mr. Armstrong presently outweighs the positive factors [and] I believe [Armstrong's] release would pose an unreasonable risk of danger to society at this time." The Habeas Proceedings Armstrong petitioned the San Diego County Superior Court for a writ of habeas corpus, alleging Governor Schwarzenegger's reversal of the BPT's decision violated his due process and equal protection rights because the governor's unsuitability determination was not supported by the evidence, was arbitrary and capricious, and was incorrectly based solely on the offense. The trial court issued an order to show cause, and specifically invited the Governor in his return to articulate " 'why [Armstrong's] underlying crime continues to make him an unreasonable risk to public safety.' " The trial court, concluding that neither the original decision nor the return to the order to show cause answered this inquiry, found the Governor's decision was not supported by some evidence. Accordingly, the trial court vacated the Governor's decision and reinstated the BPT's determination granting Armstrong's parole. Warden appeals the trial court's order, arguing the Governor's decision was supported by some evidence. We conclude the Governor's decision reversing the BPT's order violated due process because the Governor's finding that Armstrong posed an unreasonable danger if released was contrary to the only reliable evidence of his current dangerousness.

Governor. (In re Elkins (2006) 144 Cal.App.4th 475, 493 (Elkins); In re DeLuna (2005) 126 Cal.App.4th 585, 593-594.) 5

III LEGAL STANDARDS A. The Parole Decision The decision whether to grant parole is a subjective determination (In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz)) that should be guided by a number of factors, some objective, identified in Penal Code section 3041 and the BPT's regulations. (Cal. Code Regs., tit. 15,

Download In re Armstrong 6/2/08 CA4/1.pdf