In re Prather 4/28/09 CA2/5

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2009 » In re Prather 4/28/09 CA2/5

State: California

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

Docket No: B211805

Case Date: 07/30/2009

Preview:Filed 4/28/09 In re Prather CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

B211805 In re MICHAEL B. PRATHER, (Los Angeles County Super. Ct. No. BH005392) on Habeas Corpus.

ORIGINAL PROCEEDING; petition for writ of habeas corpus. Peter P. Espinoza, Judge. Petition granted Rich Pfeiffer, under appointment by the Court of Appeal, for Petitioner. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Jennifer A. Neill and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

INTRODUCTION

This habeas corpus proceeding arises from the denial of a parole date for petitioner
Michael Prather (Mr. Prather) by the Board of Parole Hearings (Board), after a hearing which was held on November 28, 2007. On December 30, 2008, we issued an order to show cause to review the Board's action and appointed counsel for Mr. Prather. We received a return to the petition from the Attorney General and a traverse from Mr. Prather. After finding that the Board lacked "some evidence" that Mr. Prather's release on parole would constitute an "unreasonable risk" of danger to the community under either state or federal constitutional standards, we issue a writ vacating the Board's denial and order it to find Mr. Prather suitable for parole unless, within 30 days of the finality of this decision, the Board holds a hearing and determines that new evidence of Mr. Prather's conduct in prison subsequent to his 2007 parole hearing supports a determination that he currently poses an unreasonable risk of danger to society if released on parole.

FACTS Mr. Prather was 23 years old at the time of the commitment offense. However, by that time, he had a lengthy record due in part to his membership in the Black Lords gang. Mr. Prather had been convicted of, inter alia, carrying a concealed weapon, disorderly conduct while under the influence of drugs or alcohol, burglary and assault with a deadly weapon. On the night of the life crime, on December 20, 1982, Elroy Ruiz and Randolph William Carrier drove to McArthur Park in Long Beach, California in order to buy a $10 bag of marijuana. Once they arrived at the park, they asked Mr. Prather for a "dime bag." Mr. Prather pointed the men to his two companions, Donald Ray Mitchell and Mark Anthony Hall. He also told Mr. Ruiz to give him his wallet, at which time one of Mr. Prather's associates reached through the window of the car and grabbed Mr. Ruiz's left shoulder. Mr. Prather then produced a handgun and Mr. Ruiz attempted to drive away. However, his car stalled. Someone yelled "shoot him" at which point Mr. Prather fired 2

his handgun and killed Mr. Ruiz. Mr. Prather's companions then began hitting Mr. Carrier through the open car window. Mr. Carrier handed his wallet to one of Mr. Prather's cohorts and was then able to drive away.
1

PROCEDURAL HISTORY At his plea hearing, Mr. Prather pled guilty to murdering Mr. Ruiz in violation of Penal Code section 187(a) as well as the personal use of a firearm pursuant to sections 12022.5 and 1203.06, subdivision (1). He also pled guilty to violating sections 664 and 211 (attempted robbery of Mr. Ruiz) and attempted murder with the use of a firearm, and admitted to being an aider and abettor with the use of a firearm in the robbery of Mr. Carrier. Thereafter, Mr. Prather was sentenced to 25 years to life in prison for the killing of Mr. Ruiz with a two year enhancement for the use of a firearm, and seven years for robbery with the use of a firearm to run concurrently with the life term. His minimum parole eligibility date was October 12, 2000. Mr. Prather's initial parole suitability hearing was conducted in September 1999. The Board found Mr. Prather unsuitable for parole and set a new parole hearing date for four years hence. On March 25, 2004, the Board again denied Mr. Prather a parole date on the ground that he posed an unreasonable risk of harm to society. Mr. Prather's third suitability parole hearing was held on September 29, 2005. At this hearing, the Board found that Mr. Prather would not pose an unreasonable risk of
2

1

Mr. Prather has told two versions of the events of December 20, 1982. In one version, he admitted that he shot Mr. Ruiz. In another version, he insisted that Mr. Mitchell shot Mr. Ruiz. However, at the time he pled guilty to the first degree murder of Mr. Ruiz, the prosecuting attorney who took his plea believed that Mr. Mitchell was the shooter. Mr. Prather confessed to being the shooter despite the fact that such an admission would subject him to harsher penalties and more prison time.
2

All future references are to the Penal Code unless otherwise indicated. 3

danger to society and set his first parole release date. In reaching its conclusion, the Board stated it took into consideration "each and every factor particularly relative to the commitment offense, Mr. Prather's criminal history as well as the 115s Mr. Prather incurred throughout his incarceration." It also noted the many gains which Mr. Prather had made during the then-23 years he had been imprisoned including obtaining his GED, becoming proficient in three different potential occupations and participating in numerous self-help groups and programs. The Board also stressed that Mr. Prather had maintained strong family ties while incarcerated, had shown remorse for his crime and had received favorable psychological reports as far back at 1999. The Board imposed certain conditions in granting parole, to each of which Mr. Prather agreed. However, on February 24, 2006, Governor Schwarzenegger reversed the Board's ruling on the ground that the governor believed that Mr. Prather would "pose an unreasonable risk of danger to society if paroled at this time." Governor Schwarzenegger based his reversal on the commitment offense as well as Mr. Prather's criminal history prior to the murder of Mr. Ruiz. Mr. Prather's fourth parole hearing before the Board took place on October 6, 2006. Once again, the Board granted Mr. Prather a parole date and in doing so stated: "Mr. Prather, the panel reviewed all information received from the public and relied on the following circumstances in concluding that [Mr. Prather] is suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison. [Mr. Prather] has no juvenile record of assaulting others. While in prison he has enhanced his ability to function within the law upon release through participation in educational programs, self help and therapy, vocational programs and institutional job assignments. Because of maturation, growth, greater understanding and advanced age, has a reduced probability of recidivism, has realistic parole plans which include a job offer and family support, has maintained close family ties while in prison and has maintained positive institutional behavior which indicates significant improvement and self control and shows signs of remorse."

4

Despite the Board's ruling and its statements setting forth its reasoning for granting Mr. Prather a parole date, the governor again reversed the Board's decision and again based his decision primarily on the commitment offense. Mr. Prather came before the Board again on November 28, 2007. Although he had not been involved in any conduct for which he was disciplined since the hearing in which he was granted parole a little more than one year before, this time the Board denied his application for parole on the ground that he was not yet suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. In a direct reference to the two previous panels which had granted Mr. Prather parole, the Board took pains to point out that each panel which conducted a parole hearing for any inmate was "like a brand new Panel [sic]" and therefore "certainly . . . not bound by any previous Panels [sic]." In denying Mr. Prather a parole date for one year, the November 28th panel stated that it had begun with the commitment offense and noted that "[y]ou know that that always is the one that we start with." It recounted the circumstances of the commitment offense and reasoned that it "was carried out in an especially cruel and callous manner." The Board also stressed Mr. Prather's criminal history prior to the life crime as well as the institutional 128s (the last one which occurred in 2002, four years prior to the first time Mr. Prather was granted a release date) and his six 115 disciplinary reports, the last of which occurred in 1994. Further, the Board stated that it was concerned with Drs. Walker and Terani's reports that Mr. Prather had a moderately low likelihood of violence if released. Finally, the Board based its decision on the fact that the District Attorney's Office of Los Angeles County opposed a grant of parole; it had received correspondence from the City of Long Beach Police Department, and the points which the governor raised in opposition to the two prior grants of parole. On July 2, 2008, Mr. Prather petitioned the superior court for a writ of habeas corpus in an attempt to reverse the Board's denial. On August 26, 2008, the superior court denied Mr. Prather's petition on the ground that there was "some evidence" in the record to support the Board's finding that Mr. Prather posed an unreasonable risk of 5

danger to society and was, therefore, unsuitable for parole. The superior court based its decision on California Code of Regulations, title 15, section 2402 and In re Rosenkrantz (2002) 29 Cal.4th 616, 667. This petition followed.

STANDARD OF REVIEW In August of 2008, in In re Lawrence (2008) 44 Cal.4th 1181, our Supreme Court set forth the standard of review for courts to apply when determining whether the Board acted outside its authority in refusing to grant parole to an inmate. Specifically, the Supreme Court stated "that because the core statutory determination entrusted to the Board . . . is whether the inmate poses a current threat to public safety, the standard of review properly is characterized as whether 'some evidence' supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous." (In re Lawrence, supra, 44 Cal.4th at p. 1191, italics added.) Accordingly, we review the Board's decision to determine whether Mr. Prather poses a danger to society today. Moreover, although the Board has been granted broad authority in rendering its decisions concerning an applicant's suitability for parole and judicial review is limited, "a petitioner is entitled to a constitutionally adequate and meaningful review of a parole decision, because an inmate's due process right 'cannot exist in any practical sense without a remedy against its abrogation.' [Citation.]" (In re Lawrence, supra, at p. 1205.) Therefore, we apply these principles when determining that Mr. Prather was unreasonably denied a parole date by the Board. Utilizing the Lawrence standard, the Board's decision to deny parole to Mr. Prather is not based on any evidence which rationally supports the Board's view that Mr. Prather poses an unreasonable risk of danger at the present time if he were released from prison.

DISCUSSION Title 15, section 2281 of the California Code of Regulations sets forth the factors to be considered by the Board when determining whether an inmate is a proper candidate for parole. This regulation mandates that the Board assess whether an inmate poses an 6

unreasonable risk of danger to society if he or she is released from prison. In rendering its decision, the Board is required to take into account the nature of the crime, the inmate's social background, his or her rehabilitative efforts, demonstration of remorse, past criminal history and any mitigating circumstances of the crime. (Cal. Code Regs., tit. 15,

Download In re Prather 4/28/09 CA2/5.pdf