In re Shaputis 11/17/10 CA4/1

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State: California

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

Docket No: D056825

Case Date: 02/17/2011

Preview:Filed 11/17/10 In re Shaputis 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 RICHARD SHAPUTIS on Habeas Corpus.

D056825 (San Diego County Super. Ct. No. HC18007)

Petition for Writ of Habeas Corpus. Relief granted.

Petitioner Richard Shaputis was sentenced to an indeterminate prison term of 15 years to life plus a determinate prison term of two years following his 1987 conviction for second degree murder. Shaputis, now 74 years old, has been in prison for the past 23 years. Although he first became eligible for parole in 1998, the former Board of Prison Terms (now Board of Parole Hearings, hereafter BPH) found him unsuitable for parole at hearings conducted in 1997, 2002, and 2004, despite Shaputis's exemplary conduct in prison and his unblemished record of rehabilitative progress. After the 2004 denial of parole by the BPH, this court granted Shaputis's petition for writ of habeas corpus because we found no evidence to support the BPH's conclusion that he would pose an

unreasonable risk of danger to public safety were he released. (In re Shaputis (Dec. 28, 2005, D046356) opn. ordered nonpub. May 17, 2006 (Shaputis I).) However, this court did not order the BPH to set a parole date. Instead, we remanded the matter to the BPH with directions to hold a new parole suitability hearing and consider whether there was any new evidence, apart from the evidence available to it at the 2004 hearing, which might support a finding that Shaputis would pose an unreasonable risk of danger to public safety were he released from prison. (Id at pp. 19-21.) The BPH held a new suitability hearing and, operating under the constraints of Shaputis I, concluded he was suitable for parole because there was no new evidence supporting a conclusion he would pose an unreasonable risk of danger to society if released. However, Governor Arnold Schwarzenegger found Shaputis did pose an unreasonable risk of danger to society if released and reversed the BPH's decision. Shaputis filed a petition for writ of habeas corpus in the trial court, which was denied, and Shaputis again petitioned this court for a writ of habeas corpus. This second petition challenged the Governor's decision, and this court granted Shaputis's petition for writ of habeas corpus because we found no evidence to support the Governor's conclusion that Shaputis would pose an unreasonable risk of danger to public safety were he released. (In re Shaputis (Aug 21, 2007, D049895) [nonpub. opn.] (Shaputis II).) However, the Supreme Court granted review in Shaputis II and, in an opinion issued concurrently with its decision in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence), held this court erred in reversing the Governor's decision because the Supreme Court concluded this court improperly applied the "some evidence" standard of 2

review as clarified in Lawrence. (In re Shaputis (2008) 44 Cal.4th 1241, 1245-1246, (Shaputis III).) The Supreme Court concluded that some evidence in the record supported the Governor's conclusion that Shaputis remained a threat to public safety because there was some evidence Shaputis had not gained insight into his previous violent behavior and did not take responsibility for the murder of his wife. (Shaputis III, at pp. 1259-1261.) In this proceeding, Shaputis challenges the 2009 BPH determination that found him unsuitable for parole based on its conclusion that his "lack of insight" made him an unreasonable risk for violence if released on parole. Shaputis petitioned the San Diego County Superior Court for a writ of habeas corpus alleging the BPH violated his due process rights because its unsuitability determination was not supported by the evidence and was therefore arbitrary and capricious. The court denied the writ, concluding the BPH's decision was supported by some evidence. Shaputis then petitioned this court for a writ of habeas corpus. We issued an order to show cause and the People filed a return. Shaputis's petition asserts the BPH's decision to deny parole violated due process because its conclusion that he posed an unreasonable risk of danger was based on immutable past facts and was contrary to the only reliable evidence that he was not currently dangerous.

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I BACKGROUND1 A. The Offense and Prior Violent and Abusive Behavior In 1987, Shaputis was convicted of the second degree murder of his wife, Erma. He was sentenced to 15 years to life with the possibility of parole, plus a determinate two-year sentence because he used a firearm to commit the murder. Shaputis and Erma were married for 23 years and their relationship was marked by domestic violence.2 Two years earlier, Erma complained that Shaputis had beaten her and cracked her ribs, and approximately 18 months earlier Shaputis had shot at her when they had been drinking and arguing. Shaputis apparently beat Erma at least two or three times per year and had threatened her with a knife. However, none of these alleged events resulted in criminal charges. On the night of the murder, Shaputis called 911 around 10:00 p.m. and stated he had fought with his wife and killed her, but claimed it was an accident.3 When police

1 The background recited in section I is derived from Shaputis III, supra, 44 Cal.4th at pages 1245 to 1248, except where otherwise noted. 2 Shaputis had also been abusive toward his prior wife, as well as toward the children from that union. 3 As we explained in Shaputis I, the BPH "concluded the gun could not have been fired accidentally because the hammer must be pulled back manually to a cocked position before pulling the trigger, and there was a 'transfer bar' to prevent accidental discharges. Although this information is recited in the 'Life Prisoner Evaluation Report' (LPER), prepared for the 2004 Parole hearing by correctional department counselors, the factual basis for the conclusions in the LPER does not appear in the probation report filed in connection with the 1987 conviction, and the source of this information is unclear." 4

arrived at his home, Shaputis surrendered without incident. When police entered, they found Erma's body in the living room with a handgun lying nearby. The autopsy report concluded Erma had been killed sometime after 8:30 p.m. and death had been caused by a single gunshot wound to the neck. The shot had been fired from close range, most likely less than 16 inches away, and entered the neck between the junction of the neck and jaw. Death was apparently instantaneous. Shaputis was a heavy drinker who became violent when intoxicated, and he had been drinking the night of the murder. (Shaputis III, supra, 44 Cal.4th at pp. 1247-1248.) Although the commitment offense was Shaputis's first felony conviction, his record showed prior violent and nonviolent criminal conduct. He was arrested in 1966 for alleged violation of Penal Code section 476, although those charges were later dismissed. In 1975, he was charged with and convicted of failing to make child support payments, and was placed on three years' formal probation. In 1978, he was arrested for pandering, convicted of an unspecified offense, and sentenced to "30 days work furlough." In 1978, Shaputis was also charged with raping his 16-year-old daughter, who reported that he had raped her twice while he was intoxicated;4 the charges were later reduced to a misdemeanor of soliciting or engaging in a lewd act, to which he pleaded no

(Shaputis I, supra, D046356, at p. 3, fn. 3.) Because of the pivotal role this "fact" has played in assessing Shaputis's suitability at numerous BPH hearings, the absence of any explanation as to the provenance of this statement is curious. 4 According to the 2005 mental health evaluation update, Shaputis denied the allegation and claimed he had wandered into his daughter's room by mistake. However, the 2005 mental health evaluation stated that in 2001, Shaputis (although continuing to deny that intercourse occurred) admitted he had touched his daughter inappropriately. 5

contest and for which he was placed on three years' formal probation. Shaputis also admitted having once been arrested and fined for driving a motor vehicle while under the influence of alcohol (DUI) when he was 25 years of age. B. Shaputis's Performance in Prison Shaputis's record during his incarceration has been impeccable. He has been discipline free during his entire term, his work record is unblemished, he has fully participated in all available AA and NA programs since 1991, and he has completed all applicable therapy programs. For several years, Shaputis has had the lowest classification score possible for a life-term inmate, and has numerous commendations from prison staff for his work, conduct and reform efforts. Shaputis's physical health has declined over the years. He has had three heart attacks and suffers from chronic health problems. C. The 1997 and 2002 BPH Proceedings Shaputis's minimum eligible parole date was in September 1998. At his first parole hearing in 1997, the LPER prepared by his prison counselor for submission to the BPH stated his "progress in state prison could best be described as exemplary" and concluded Shaputis "would probably pose a low degree of threat to the public at this time, if released from prison." (Shaputis III, supra, 44 Cal.4th at p. 1249.) The BPH denied parole and recommended he remain discipline free and participate in self-help and therapy groups. At Shaputis's second parole hearing in 2002, the LPER confirmed Shaputis had remained discipline free and participated in self-help groups, and again concluded (based on his commitment offense, his prior record, and his prison adjustment) 6

that he "would probably pose a low degree of threat to the public at this time if released from prison." (Ibid.) The BPH again denied parole, apparently based on an unsuitability determination, and again recommended he remain discipline free and participate in selfhelp and therapy groups. II SHAPUTIS I5 A. The 2004 BPH Hearing The forensic psychologist who evaluated Shaputis's psychological condition, and submitted a report to the BPH in connection with the 2004 parole hearing, concluded Shaputis had feasible and appropriate plans for his life if granted parole and appeared committed to maintaining his sobriety through continued involvement with AA. Addressing Shaputis's risk for violence if paroled, the forensic psychologist concluded he presented a low risk for violence absent a relapse into alcoholism.6

5 The information recited in section II is derived from Shaputis III, supra, 44 Cal.4th at pages 1250 to 1251, and Shaputis I, supra, D046356. 6 The forensic psychologist's risk of violence assessment evaluated three elements: Shaputis's history and background, his clinical presentation, and "management of future risk." (Shaputis III, supra, 44 Cal.4th at p. 1250, fn. 10.) Because his history of violence appeared intertwined with his alcoholism, the forensic psychologist concluded the risk based on this history was low as long as he did not relapse into alcoholism. Shaputis's clinical presentation showed some growth in insight and the forensic psychologist believed that this factor presented a low risk for violence as long as Shaputis remained sober and involved in activities that held his interest. Finally, the forensic psychologist concluded Shaputis's ability to handle future stress in a nonviolent manner was also largely rooted in his ability to remain sober; the forensic psychologist believed that Shaputis's prison record (e.g. his commitment to his AA program and his demonstrated ability to comply with rules) and his then current physical condition (a senior citizen with 7

The LPER, prepared by Shaputis's prison counselor for submission to the BPH, again noted his exemplary prison record and that he had "fully adhered" to the BPH's prior recommendations. The report again concluded, considering the commitment offense, his prior criminal record, and his adjustment in prison, Shaputis would " 'probably pose a low degree of threat to the public at this time if released from prison.' " The BPH considered the materials presented, including the forensic evaluations, and concluded Shaputis was not suitable for parole because he posed " 'an unreasonable risk of danger to society or a threat to the public safety if released from prison.' " The BPH relied on two findings for this conclusion: the nature and quality of commitment offense, and Shaputis's " 'history of unstable and tremulous [sic] relationships with others . . . ." (Id. at pp. 1250-1251.) B. The Habeas Corpus Proceeding Shaputis petitioned the San Diego County Superior Court for a writ of habeas corpus alleging the BPH violated his due process rights because its unsuitability determination was not supported by the evidence and was therefore arbitrary and capricious. The court denied the writ, concluding the BPH's decision was supported by some evidence. Shaputis then petitioned this court for a writ of habeas corpus. We concluded the BPH's decision to deny parole violated due process because its finding that he posed an unreasonable danger if released was contrary to the only reliable evidence of his current dangerousness and relied on findings unsupported by any evidence. We

chronic health problems that would limit concerns about his acting out in inappropriate ways) made him a low risk for future violence. (Ibid.) 8

ordered the BPH to vacate its denial of parole and to conduct a new parole suitability hearing for Shaputis. (Shaputis III, supra, 44 Cal.4th at p. 1251.) However, because this court could not predict whether new evidence might be available when the BPH conducted the new parole suitability hearing, we recognized we could not evaluate the BPH's consideration of evidence that had yet to be presented. We therefore concluded, although it was barred from finding Shaputis unsuitable for parole based on the same findings articulated at the 2004 hearing (absent evidence new or different from that presented at the 2004 hearing), the BPH could consider Shaputis's suitability de novo insofar as new or different evidence was presented at the new hearing. (Shaputis III, supra, 44 Cal.4th at p. 1251.) III SHAPUTIS II and SHAPUTIS III7 A. The 2006 BPH Hearing The BPH conducted another parole hearing in March 2006. The only information not previously available to the BPH was the psychological assessment, conducted in April 2005 by Dr. Silverstein, which concluded Shaputis " 'would appear to be a low risk of future violence if release[d], as long as he maintains sobriety and involvement in an active relapse prevention program.' " (Shaputis III, supra, 44 Cal.4th at p. 1251.) However, Dr. Silverstein noted Shaputis (1) seemed to have " 'limited . . . insight' " regarding his alleged antisocial behavior and (2) his history of alcohol abuse was closely 7 The information recited in section III is derived from Shaputis III, supra, 44 Cal.4th at pages 1250 to 1252. 9

associated with his history of domestic violence. (Ibid.) Dr. Silverstein concluded that, if Shaputis remained sober, his risk for violence was close to that of the " 'average unconfined citizen,' " but if he relapsed " 'the risk would likely rise considerably and he would present . . . an unpredictable risk for future domestic violence.' " (Id. at p. 1252.) Dr. Silverstein's concern was that Shaputis planned to move in with his new wife (with whom he had never lived) and his violence tended to be " 'confined to his family systems and [it is] difficult to assess how well extinguished his pattern of domestic violence is[,] given that he has been confined for more than 18 years. If he abstains from alcohol, the risk is probably low.' " (Ibid.) Dr. Silverstein concluded alcohol relapse prevention and domestic violence treatment programming would " 'likely adequately manage these risks,' " and recommended Shaputis's conditions of parole include random alcohol testing and mandatory participation in a relapse prevention program and community-based domestic violence program. (Ibid.) The BPH considered the new evidence and, operating under the constraints of this court's instructions on remand, reluctantly found Shaputis suitable for parole. The BPH, although convinced its prior decision finding him unsuitable was correct because it believed Shaputis still lacked an understanding of why he killed his wife and why he engaged in domestic violence,8 concluded this court's opinion in Shaputis I barred the

8 During the 2006 proceedings, the Board referred to Dr. Silverstein's report, noting the report's observation that Shaputis found "inexplicable" his daughters' prior allegations of molestation and domestic violence, that Shaputis had a flat affect when discussing these allegations, and that this circumstance could be a sign of the schizoid tendencies noted in some previous evaluations. The Board also expressed concerns regarding 10

BPH from finding Shaputis unsuitable on the same evidence previously considered and therefore found him suitable for parole. The BPH therefore granted Shaputis parole subject to the special parole conditions that he submit to alcohol testing, and participate in a substance abuse program and a domestic violence program. However, in August 2006, Governor Arnold Schwarzenegger reversed the BPH's decision because he concluded Shaputis posed an unreasonable risk of danger to society if released. The principal reasons given for this conclusion were (1) the crime was especially aggravated because it involved some premeditation, and (2) Shaputis had not fully accepted responsibility for and lacked sufficient insight about his conduct toward the victim. B. The Habeas Corpus Proceedings Shaputis then filed his second petition for a writ of habeas corpus, alleging the Governor's decision violated his due process rights because the unsuitability determination was not supported by the evidence and was therefore arbitrary and capricious. We ruled in favor of Shaputis, concluding that (1) the circumstances of the crime did not provide any evidence to support the conclusion that he would currently pose an unreasonable risk to public safety if released on parole, and (2) there was no Shaputis's lack of insight into his history of domestic violence and his alcoholism. When Shaputis was asked whether he had a problem in the way he treated women, he replied, "[w]ell, no I don't. I don't know how to say that I don't have a problem now. I didn't have a--I guess I had a problem then but I don't know how to put it into pictures or words. I just--It was one of those things I didn't quite understand, I guess. Not having a thorough idea of how stupid I was being, how dumb I was being." When questioned concerning his current understanding of why he committed the murder and why he now would not commit such a crime, Shaputis's counsel advised him not to answer the question. (Shaputis III, supra, 44 Cal.4th at p. 1252.) 11

evidence to support the conclusion that petitioner posed an unreasonable risk of danger merely because of his method of coping with his guilt. However, the Supreme Court granted review and, in Shaputis III, supra, 44 Cal.4th 1241, concluded there was some evidence to support the Governor's decision, and therefore affirmed the Governor's ruling. (Id. at pp. 1258-1261.) The court in Shaputis III reiterated its approach in Lawrence--that the circumstances of the commitment offense is a proper consideration on the question of current dangerousness only where there is other evidence that the prisoner's current condition made his or her prior crimes probative of the likelihood of renewal of violent behavior (Shaputis III, at p. 1261, fn. 20)--and stated that Shaputis's offense, when coupled with the evidence supporting the conclusions that he lacked insight or understanding about his violent conduct and had not accepted responsibility for his actions, provided some evidence supporting the Governor's conclusion that he would remain a danger to society if released on parole. (Id. at pp. 1259-1261.) IV THE CURRENT PROCEEDING A. The 2009 BPH Hearing The BPH conducted another parole hearing in August 2009. The BPH was aware Shaputis's record during his incarceration had remained impeccable: he has now been discipline free for more than 22 years, and has continued for many years to have the lowest possible classification score for a life-term inmate; his work record is unblemished and has been lauded by his supervisor; he has fully participated in the available AA and NA programs, and apparently has been involved in those programs since 1991; and he 12

completed a host of therapy programs and classes. The BPH was also apprised that Shaputis's physical health has declined over the years.9 At the 2009 hearing, the BPH considered (in addition to all of the prior psychological evaluations) a 2009 psychological assessment prepared by Dr. Stark, and a 2009 psychological assessment prepared by Dr. Sahni. Both of these 2009 reports concluded Shaputis did not present a substantial risk of violence if released to the community.10 These 2009 reports were consistent with the reports from six prior evaluators who, after evaluating Shaputis at various times over the preceding 18 years, repeatedly concluded Shaputis's risk for violence was "low or close to average when compared to the average citizen." The BPH also considered Shaputis's written statement, submitted in lieu of testimony, explaining that he was remorseful for his crime (as well as his misconduct toward others in his family) and that he grown to understand how his underlying character flaws, exacerbated by his alcohol abuse, had produced his criminal conduct.11

9 Shaputis's declining physical health is undisputed: he has had three heart attacks, and he suffers from other chronic health problems, including hypertension and pancreatitis. 10 Dr. Sahni stated Shaputis "presents a relatively low risk for violence," although he stated that risk would likely increase if Shaputis relapsed into alcoholism. Dr. Stark also concluded Shaputis had a "very low . . . risk for future violence." 11 Shaputis explained that his years of "treatment and soul searching" had led him to understand that "I was self-centered and did not respect the needs of my wife and children[, and a]lthough that was compounded and exacerbated by drinking, the basic flaw was in my own character" and "morality." He stated that he recognized the "destructive effects of my drinking and how it terribly impaired my judgment, and [o]ver 13

He explained he was "deeply regretful" about his past and that his "shame about my horrible conduct" and his "deep sorrow" for the victims, coupled with his commitment to sobriety and his ability to recognize and deal with stress in a socially appropriate manner, would insure he would not again engage in such conduct. Dr. Stark's report devoted significant attention to evaluating and discussing Shaputis's "insight" concerning the crime and his other misconduct.12 Dr. Stark explained that the concept of insight implicates "an awareness of the underlying emotional, cognitive or behavioral difficulty with oneself. However, insight alone does not change behavior the inmate must feel prepared to do anything to change that such a tragedy will never occur." Dr. Stark quoted the HCR-20 Companion Guide (an instrument employed by the Corrections Department to assess the risk of violence for inmates), which stated that insight: " 'can be defined in a variety of ways . . . . Ultimately, it is a judgment that is made by one person about another person. . . . The question is not simply whether the client has insight (i.e. is about to make reasonable sense of his or her experience and behavior), but how the client makes sense or his or her behavior within the context[] of his or her experience. The task is to uncover and understand the internal logic of the client's behavior (i.e. the client's time and with treatment I have come to know that I would have not committed such horrific acts but for alcohol, but I blame myself and low morality, not alcohol, for my crime and former misconduct." 12 Dr. Sahni, explaining that her 2009 report had been prepared without the benefit of a current personal interview, stated she was unable to express any views on Shaputis's remorse about or insight into the crime. Dr. Sahni did caution, however, that "[i]nsight and remorse are abstract concepts, which do not lend themselves to operationalized definition or measurement. Therefore, any opinions regarding insight and remorse are subjective in nature, and should be interpreted with this caveat in mind." 14

subjective 'insight'), and then there comes a time when active change has been successful when the client feels that the hard work of transformation ha[s] led to consolidation of a new pattern of feelings[,] thoughts and behavior.' " Dr. Stark, stating that Shaputis had "successfully made this transformation from insight to an active sustained change in his feelings, thoughts and behavior," provided detailed information regarding Shaputis's understanding of the nature and source of his underlying character traits and weaknesses; his understanding of how his fears and lack of self-esteem led him seek and remain in abusive relationships and the role that alcohol played in his life and in his crime; and the significant changes in Shaputis's behavioral, emotional and cognitive makeup and coping strategies that reduced the likelihood of recurrence. B. The BPH Decision Although all of the recent evaluators had concluded Shaputis's objective behavior as a prisoner raised no concerns about his future dangerousness, and had also concluded his advancing age and physical infirmities were factors contributing to their opinions that he was a low risk for violence if released on parole, and notwithstanding Dr. Stark's 2009 evaluation extensively assessing and discussing Shaputis's subjective attitudes and understandings about the psychological and behavioral factors that led to the murder, the BPH nevertheless concluded Shaputis posed an unreasonable risk of danger to public safety were he released from prison because he lacked sufficient insight and continued to minimize his responsibility for the murder and prior abuse. The BPH stated that, despite Dr. Stark's current evaluation detailing the evolution of Shaputis's understanding of the 15

nature and source of his character traits that produced his abusive behavior and ultimate murder of Erma and his acceptance of responsibility for (and remorse about) his crimes, the earlier evaluations (a 2004 evaluation by Dr. Mura and a 2005 evaluation by Dr. Silverstein) had concluded Shaputis seemed to have limited insight into the causative events and continued to minimize his responsibility for the crime. The BPH apparently concluded the earlier psychological evaluations were more probative of Shaputis's current dangerousness than the current psychological evaluation, and until Shaputis fully accepted responsibility for the crime and gained an understanding of what character traits led him to commit the crimes, he would continue to pose an unreasonable risk of danger to public safety were he released. Shaputis petitioned the San Diego County Superior Court for a writ of habeas corpus, alleging the BPH's decision violated his due process rights because the unsuitability determination was not supported by the evidence and was therefore arbitrary and capricious. The court denied the writ. Shaputis then petitioned this court for a writ of habeas corpus. V 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 BPH's regulations. (Cal. Code Regs., tit. 15,

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