In re Dannenberg 9/19/02 CA1/3

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State: California

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

Docket No: A095299

Case Date: 09/19/2002

Preview:Filed 9/19/02

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE In re JOHN E. DANNENBERG, on Habeas Corpus. A095299 (Marin County Super. Ct. No. SC112688A)

John E. Dannenberg sought a writ of habeas corpus in the trial court, claiming the Board of Prison Terms (the Board) had illegally denied him parole after a hearing on August 17, 1999. The court issued an order to show cause, held a hearing, and ordered the Board to hold another parole suitability hearing within 30 days. The court directed the Board to set a parole date no later than February 15, 1998, unless there were changed circumstances since the latest parole hearing. Respondents Dave Hepburn, chairman of the Board, and J.S. Woodford, warden of San Quentin State Prison, have appealed.1 We have stayed the trial court's order. We agree with the trial court that writ relief was appropriate. However, based on developments in case law after the court's ruling, we hold that the Board must be allowed an opportunity to redetermine the merits of Dannenberg's parole application in the first instance, under the proper legal standards.

The Attorney General has briefed and argued the appeal on behalf of the Board, as the party most directly affected by the challenged order.

1

BACKGROUND 1. The Commitment Offense The trial court summarized the facts of Dannenberg's offense as follows, based on the probation report:2 "By May, 1985, Dannenberg and his wife, victim Linda Dannenberg [footnote omitted] had been undergoing severe domestic difficulties for a number of years. They had been engaged in marriage counseling and the victim had also sought individual psychiatric assistance. "Apparently the victim was planning a dissolution of marriage and a physical separation, although there is no evidence that Dannenberg knew that. "The marriage had been marred by verbal discord and at least one physical [footnote omitted] altercation (involving the victim and the minor child of [Dannenberg] and the victim) in the past. "On the morning of May 5, 1985, Dannenberg awakened the parties' five year old son. He noticed that the child had wet his bed, so he went into the bathroom to draw a bath for the boy. The tub drain was clogged, and the toilet was running. [Dannenberg] obtained tools (a pipe wrench and a screwdriver) from a nearby pantry and in the process chastised the victim for failing to clean the tub properly (apparently he blamed her for the clogged condition of the drain). "The victim followed Dannenberg into the bathroom. Dannenberg states that the victim picked up the screwdriver and came toward him, jabbing the screwdriver at him. Dannenberg had defensive wounds on his body. The victim attacked [Dannenberg], clawing and scratching his left arm with her fingernails, and cutting his arm with the screwdriver. She told Dannenberg that she wanted him dead. Dannenberg picked up the pipe wrench and hit the victim once on the side of the head. The victim kept coming at Dannenberg, who hit her a couple more times on the head.

The Board, which barely mentions the facts of the offense in its briefs, raises no objection to the trial court's version of the events.

2

2

"The victim fell down, but kept kicking Dannenberg, who claims that he lost consciousness and that when he came to he found the victim lying motionless on the side of the bathtub, with her head partially under the water of the half-filled tub. "Dannenberg called 911 and reported the incident. "The autopsy revealed that the victim had been hit on numerous occasions on the head but that the cause of her death was drowning. ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "Dannenberg was charged with first and second degree murder (Penal Code

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