In re Portis 6/24/10 CA2/1

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State: California

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

Docket No: B218425

Case Date: 10/14/2010

Preview:Filed 6/24/10 In re Portis 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

B218425 (Los Angeles County Super. Ct. Nos. BH005959, A299992)

JOHNNIE PORTIS

on Habeas Corpus.

ORIGINAL PROCEEDING; petition for a writ of habeas corpus. Peter P. Espinoza, Judge. Petition granted. Rowan K. Klein, under appointment by the Court of Appeal, for Petitioner. Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Senior Assistant Attorney General, Julie A. Malone, Supervising Deputy Attorney General, and Ryan K. Schneider, Deputy Attorney General, for Respondent. _________________________________

On July 17, 1974, petitioner Johnnie Portis pleaded guilty to first degree murder and was sentenced to an indeterminate life term, with a minimum of six months. At Portis`s 22nd parole hearing, conducted on June 4, 2008, the Board of Parole Hearings (Board) again denied parole. Portis 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 and grant the petition. BACKGROUND A. Commitment Offense On December 22, 1972, Portis beat Chester Phillips to death with a wooden board. Portis was 17. The record before us contains a reporter`s transcript of Portis`s guilty plea, his pre-plea probation report, and his written confession. According to the probation report, a witness testified at the preliminary hearing that he saw Portis walk up behind Phillips, place his arm around Phillips`s neck, and pull Phillips into a vacant lot. The witness next saw Portis run across the street with a board. The police officer who found Phillips`s body testified that two chairs were atop the body. Phillips`s pockets were turned out and his wallet and watch were missing. The wallet was found in a trash can along the street. Portis was not arrested until July of 1973. After Portis was advised of his rights, he confessed. He told the interrogating officer that he had taken LSD the day before the murder. On the night of the crime, he was drinking alcohol and having LSD flashbacks. He saw Phillips walking down the street and began fighting with him. Another person kicked Phillips a couple of times. Portis picked up a board and struck Phillips two or three times, then he and the other person ran from the scene. Portis drank a beer, then returned to the crime scene and found that Phillips was not moving. Portis dragged Phillips`s body farther back into the vacant lot and placed chairs on top of the body so that passersby would not notice it. When Portis pleaded guilty, he testified that as he repeatedly struck Phillips with the board, he knew that Phillips would die from the

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beating. Portis was sentenced to an indefinite life term with a minimum of six months with credit for 332 days served. Several of Portis`s psychological evaluations, including the report prepared for the 2008 parole hearing, reflect that Portis, who was underage, had asked Phillips to purchase alcohol for him. Phillips refused to do so, and an ensuing argument culminated in the murder. B. Social History Portis was the third of seven children in his family. He was born on January 23, 1955, in Louisiana, but his family moved to Los Angeles soon after his birth. His parents separated in 1965 and his father, who was an alcoholic, moved to Sacramento. Portis`s father drowned while fishing in 1972. Portis`s mother and all but two of his siblings are still alive. One of Portis`s brothers had been shot to death while driving to a store. A half brother had been convicted of voluntary manslaughter, but was out of prison. Portis`s mother and sisters visited him often in prison. Portis told the Board that his family was loving and supportive, he had a great relationship with them, and they were eager for his release. Portis dropped out of school during the 10th grade. A 1991 psychological evaluation reported that Portis`s cognitive abilities were at the third grade equivalency level when he entered prison. Portis explained to the Board that he was not doing well in school. He began doing odd jobs, helping with refrigeration and air conditioning, and selling drugs off and on. He blamed low self-esteem for his failure to pursue an opportunity to continue learning the refrigeration and air conditioning business. Portis started drinking at around age 16 to fit in socially. He also began using marijuana, LSD, and barbiturates, amphetamines, and PCP. In November of 1971, when Portis was 16, he was arrested for possessing dangerous drugs for sale. He told the Board the drugs were sleeping pills. The case was dismissed without prejudice when Portis moved to Sacramento. In November of 1972-- about a month before the commitment offense--Portis was arrested for assault with a

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deadly weapon and assault with intent to murder based upon an incident in which Portis shot a man in the leg after the man attempted to break up a fight between Portis and a third man. When Portis was arrested, he reportedly admitted, I shot the dude. Portis told the Board that a man who had come to Portis`s assistance actually shot the victim, but Portis wanted to take responsibility for the act because he would get less time and he owed the man a favor. A police report of this incident indicates that Portis was punching a man named Stewart with his fists when a man named Broussard intervened. Portis`s adult companion then pulled a gun and fired at Broussard as he attempted to run away, striking Broussard in the leg. Portis was found unfit for juvenile court. The case was ultimately dismissed because the victims could not be found. In 1973, Portis was again charged as an adult with assault with a deadly weapon for a February 20, 1973 incident in which he either fired a gun, or handed his girlfriend a gun that she fired, at a woman who asked Portis and his girlfriend to leave her house. In May of 1973, Portis pleaded guilty to exhibiting a deadly weapon in a rude and threatening manner, a misdemeanor, and was placed on probation. C. Prison Record The California Department of Corrections and Rehabilitation (formerly the Department of Corrections) received Portis on July 26, 1974, when he was 19. Prison authorities disciplined Portis for misconduct on a total of six occasions: in April of 1977 for possession of contraband (a one-half pound piece of metal inside a sock); in July of 1981 for possession of a $20 bill; in August of 1981 for possession of stimulants and sedatives, which Portis told the Board was actually marijuana; again in August of 1981 for refusing to work; in July of 1984 for assaulting an inmate; and in February of 1990 for fighting. The 1981 marijuana possession also resulted in a conviction, for which Portis received a two-year concurrent sentence. Portis told the Board that he was present during the 1984 assault but was not directly involved. Portis also received ten counseling chronos (file notations without disciplinary consequences) between January of 1980 and July of 1992 for less serious rule violations such as failing to stand for a count, absence

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from classes, unsatisfactory progress in classes, and possession of items such as sugar, paint, a paint brush, paint thinner, sandpaper, a ruler, ear protectors, and a baseball glove. Portis obtained his GED in 1982 and had completed 66 units of college course work through correspondence courses offered by Chapman College. One of the Board members noted that Portis was doing very well until they closed the program. Portis completed vocational training in refrigeration and air conditioning, appliance repair, and electronics. He has worked in the prison industries program since 1988 and has had a long career in Textiles. At the time of the 2008 hearing, he was a lead man in shirt production. This meant he trained new workers, assigned work to inmates, and motivated them to work and meet quotas. He generally worked four days a week, at least ten hours per day, and often worked overtime. The deputy commissioner on the Board noted that Portis had received all great performance appraisals. She further noted that they don`t keep you that long unless you`re doing great. And they don`t make you a lead person unless you have some very special abilities, because you have to direct an operation with no authority. In 2002, 2005, and 2008, Portis received laudatory chrono reports for his work in the prison industry textile program. The 2008 chrono commended Portis for his attitude, work ethic, demeanor and performance. It further stated that his efforts have made him an asset to the PIA Textiles work program. Through his efforts he helped to maintain deadlines and meet the customer`s needs. Portis would be a benefit to any factory setting whether in or outside an institutional setting. Portis had previously worked in the prison kitchen, where he also received above average performance ratings. Portis has completed numerous self-help and therapeutic courses on topics including anger management, self-esteem, the negative impact of crime on its victims, successfully re-engaging into society, impulse control, problem-solving skills, listening skills, dealing with difficult people, proper expression of emotion, and strategies for controlling and replacing negative self-defeating emotions. He also completed a variety of courses in subjects including science, health, and Bible study.

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Portis has consistently participated in Alcoholics Anonymous, Narcotics Anonymous, and other addiction recovery programs since 1986. A March 2008 laudatory chrono report from Narcotics Anonymous stated, He continues to show a positive attitude and interest in this organization. [Portis] is a willing participant in its functions and his motivation inspires other members to interact within the group. He is to be commended for his participation. Portis received a virtually identical report from Alcoholics Anonymous in March 2007. D. Prior parole dates and grants of parole In 1975, Portis was given a parole date of August 15, 1983. That date was rescinded in 1981 due to the marijuana possession conviction. The Board at the 2008 hearing asked Portis why he relaps[ed] into drugs after he obtained his first parole date. He explained that he had not yet begun participating in Narcotics Anonymous or Alcoholics Anonymous and did not understand that he had a problem. He also knew that other inmates had been caught with greater quantities of contraband than he had and not lost their parole dates, so at the time he did not understand he was jeopardizing his parole. Portis was granted parole in June of 2002. The Board`s decision noted Portis`s stable social history; his enhancement of his ability to function within the law upon release, through participation in education, self-help and therapy, vocational programs and institutional job assignments; his college-level course work nearing completion of an Associate of Arts degree; his marketable skills in electronics and appliance repair; his realistic parole plans; his recent maintenance of positive institutional behavior; his remorse for his crime; a psychological evaluation supporting release; and a reduced probability of recidivism due to his maturation, growth, advanced age and greater understanding. Governor Gray Davis reversed the Board`s decision. E. Mental Health Evaluations and Insight Into Offense 1. 2008 evaluation

The June 2008 psychological evaluation was prepared by a contract forensic psychologist, Dr. Richard Starrett. The report indicates it is merely an addendum to the

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2005 psychological evaluation intended to address the certain questions raised by the Board at Portis`s 2007 parole hearing. Starrett reported that Portis met the diagnostic criteria for Polysubstance Dependence, in a controlled environment remission, and Antisocial Personality Disorder by history, based on the history of getting into trouble and using drugs at a young age, multiple arrests as an adolescent and adult, culminating in the controlling case, a record of failed efforts on supervised release as both a juvenile and as an adult, and his history of prison discipline and counseling chronos. (Although Portis was charged as an adult in the murder and prior 1972 assault case, he was a minor at the time he committed these offenses. The only offense he committed when he was an adult was exhibiting a deadly weapon in a rude and threatening manner, a misdemeanor, committed about two months after he turned 18. Portis was 19 when sent to prison in 1974.) To assess Portis`s potential for violence if released on parole, Starrett used an empirically based approach consisting of two separate assessment guides (the Psychopathy Check List Revised and the History-Clinical-Risk Management-20) and an objective, actuarial assessment regarding the risk of recidivism (the Level of Service/Case Management Inventory). In setting forth his analysis, Starrett noted that Portis accepts responsibility for the crime as stated. His insight seems appropriate to his cognitive functioning and age. The inmate has had a positive response to treatment. He does not have a negative attitude, he does not have any active mental health symptoms and he is no longer impulsive. Based upon his use of the assessment instruments, Starrett found Portis`s overall propensity for violence is in the low moderate range and his general recidivism risk is rated in the medium range. Starrett specifically noted that the scores on these instruments can be limited in range for someone who has an extensive history of early antisocial behavior. The static or historical factors cannot be lessened in determining the overall score no matter how the person`s values have changed or how much time has taken place since these early factors occurred. Based on early history, some individuals will never obtain a risk estimate of low.` While static factors

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are included in tests because they are among the strongest predictors relative to the other factors, the score must be interpreted with the understanding of these limitations. Since it may not be possible to change these particular scores in a more positive direction, it is important to consider other sources of information, such as assessment of current functioning in determining a violence potential. Starrett described his assessment of Portis`s propensity for future violence: Portis is not a psychopath, which research indicates decreases his violence potential and chance of recidivism. The inmate`s elevations on this scale were due to the inmate`s prior arrest history, controlling case and antisocial traits around the time of the crime. [

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