In re Loveless 1/7/11 CA3

SUPREME COURT CASES

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State: California

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

Docket No: C062354

Case Date: 04/20/2011

Preview:Filed 1/7/11; pub. order 1/31/11 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer) ---In re MICHAEL JAY LOVELESS on Habeas Corpus. C062354 (Super. Ct. No. WHC0000894)

In the course of a home invasion robbery, Michael Jay Loveless (defendant) shot Robert DeRungs in the head, killing him in front of DeRungss 14-year-old son. Defendant entered a

negotiated plea of guilty to second degree murder in exchange for a sentence of 15 years to life in state prison. On the 22nd

anniversary of the murder, the Board of Parole Hearings (the Board) found defendant unsuitable for parole and issued a twoyear denial. The superior court granted defendants petition

for a writ of habeas corpus, finding there was no evidence to support the Boards denial of parole, and ordering the Board to conduct a "new hearing within 30 days of the finality of this decision and to find defendant suitable for parole, unless new evidence of his conduct and/or change in mental state subsequent

1

to the 2008 parole hearing is introduced and is sufficient to support a finding that he currently poses an unreasonable risk of danger to society if released on parole." italics.) The Warden appeals that decision. (Original We conclude there Accordingly,

was some evidence to support the Boards decision.

we reverse the trial courts order vacating the Boards decision and direct the trial court to issue a new order denying defendants petition for writ of habeas corpus. FACTUAL AND PROCEDURAL BACKGROUND In January 1986, when defendant was 23 years old, he and two friends, Robert Allen and George Layton, heard that Robert DeRungs (victim) had "large sums of money" in his house. Defendant and his friends planned to rob the victims home, made numerous trips to survey the property and plan the robbery. They took assigned roles, disguised their appearance with theatrical makeup and armed themselves with guns. At approximately 10:00 p.m., defendant and Allen knocked on the door to the home and the victim answered. down on the floor. They made him lie

Allen searched the home, found the victims

14-year-old son asleep in his bedroom, and brought him to the room with his father. holding a gun on him. Defendant was standing over the victim, The gun defendant was aiming at the

victim was loaded, the hammer was cocked and his finger was on the trigger. They made the son lie on the floor next to his Then, defendant

father and Allen began to tie up the victim. shot the victim in back of the head.

Defendant started

apologizing, saying it was an accident and that the gun had 2

slipped.

As the victim lay dying on the floor, they asked the The son answered that if there Allen went through Allen then took

son to direct them to the money.

was any, it would be in his fathers wallet.

the home again while defendant tied up the son.

the victims wallet and told defendant he should kill the victims son as he was a witness. Allen and defendant did not

shoot the son and left the home, dividing the $110 taken from the victims wallet between them. Defendant claimed that on the

night of the murder he was a heavy drinker and had consumed six to twelve cans of beer and a few shots of bourbon. He also

claimed that he had been using marijuana and methamphetamine. Defendant pled guilty to second degree murder and was sentenced to 15 years to life in state prison. On January 31, 2008, defendant came up for a parole hearing. The Board found the offense was committed with an

"exceptionally callous disregard for human suffering" and the motive was robbery. The Board found defendant lacked insight

into and remorse for his offense, had engaged in insufficient efforts at self-help and had inadequate parole plans. The Board

found defendant was not credible, and his demeanor and behavior at the hearing demonstrated his frustration and agitation. Accordingly, the Board concluded defendant was not suitable for parole and would pose an unreasonable risk of danger to society or threat to public safety if released from prison. During the previous two years, the Board found, the defendant had "done absolutely no self-help" other than what had been specifically ordered by the Board at his prior parole 3

hearing.

Defendant had stopped participating in Alcoholics

Anonymous (AA) and Narcotics Anonymous (NA), because he had "reprioritized" his life. The Board found, "[w]hen you kill a

man because youre under the influence of alcohol, it [alcohol counseling] had always better be the number one priority. We

believe you only stepped back into AA and NA because the Board told you to. You didnt go the extra mile and take stress [

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