In re Shaputis on H.C. 8/21/07 CA4/1

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State: California

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

Docket No: D049895

Case Date: 10/25/2007

Preview:Filed 8/21/07 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

D049895 (San Diego County Super. Ct. No. HC18007)

Petition for Writ of Habeas Corpus. Kerry Wells, Judge. Petition granted.

Petitioner Richard Shaputis was sentenced to a prison term of 15 years to life following his 1987 conviction for second degree murder. Shaputis, now nearly 71 years old, has been in prison for the past 20 years. Although Shaputis first became eligible for parole in 1998, the former Board of Prison Terms (now Board of Parole Hearings, hereafter BPH)--despite Shaputis's exemplary conduct in prison and his unblemished record of rehabilitative progress--found him unsuitable for parole at hearings conducted in 1997, in 2002, and finally in 2004. 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 Shaputis 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 guidelines 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 now petitions this court for a writ of habeas corpus, challenging the Governor's decision. I FACTS1 A. The Offense In 1987, a jury convicted Shaputis of the second degree murder of his wife, Erma, and found true that he used a firearm in connection with the offense. He was sentenced

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The background recited in sections I and II are derived from Shaputis I. 2

to 15 years to life with the possibility of parole, plus a determinate two-year sentence for the firearm use. Shaputis and Erma were married for 23 years and their relationship was marked by domestic violence. 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.2 When police arrived at Shaputis's home, he 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 between 8:30 p.m. and 12:30 p.m. and death had been caused by a single gunshot wound to the neck. The shot had been fired from close range, possibly as close as two feet, 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.

2 The gun apparently 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 genesis of this information is unclear. 3

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. 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 1997 hearing 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." The BPH denied parole, apparently based on an unsuitability determination, 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) that he "would probably pose a low degree of threat to the public at this time if released from prison." The BPH again denied parole, apparently based on an unsuitability determination, and again recommended he remain discipline free and participate in self-help and therapy groups.

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II SHAPUTIS I A. The 2004 BPH Hearing Dr. Mura, a forensic psychologist, evaluated Shaputis's psychological condition and submitted her report to the BPH in connection with the 2004 parole hearing. Dr. Mura's report stated Shaputis had feasible and appropriate plans for his life if granted parole, and appeared committed to maintaining his sobriety through continued involvement with AA. When assessing Shaputis's risk for violence if paroled, Dr. Mura concluded he presented a low risk for violence absent a relapse into alcoholism.3 The LPER, prepared by Shaputis's prison counselor for submission to the 2004 BPH hearing, 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."

3 Mura's risk of violence assessment evaluated three elements: Shaputis's history and background, his clinical presentation, and "management of future risk." Because his history of violence appeared intertwined with his alcoholism, Mura 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 Mura believed that this factor presented a low risk for violence as long as he remained sober and involved in activities that held his interest. Finally, Mura concluded Shaputis's ability to handle future stress in a nonviolent manner was also largely rooted in his ability to remain sober; Mura believed that Shaputis's prison record (e.g. his commitment to his AA program and his demonstrated ability to comply with rules) and his current physical condition (a senior citizen with chronic health problems that would limit concerns about his acting out in inappropriate ways) made Shaputis a low risk for future violence. 5

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 public safety if released from prison." The BPH cited two findings for this conclusion. First, the BPH found the commitment offense was "carried out in an especially cruel and/or callous manner" and was "carried out in a dispassionate and/or calculated manner" because the murder was committed at close range with a single shot. Second, the BPH found Shaputis had a "history of unstable and tremulous [sic] relationships with others" and had assaulted his wife. 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. Accordingly, we ordered the BPH to vacate its denial of parole and to conduct a new parole suitability hearing for Shaputis. 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 6

therefore concluded that, although the BPH 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. III THE CURRENT PROCEEDING The BPH conducted the most recent 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." However, Dr. Silverstein (echoing Dr. Mura's previous observations) noted Shaputis seemed to have "limited . . . insight" regarding his alleged antisocial behavior and his history of alcohol abuse was closely associated with his history of domestic violence. 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 as an unpredictable risk for future domestic violence." Dr. Silverstein's "only 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 7

probably low." 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. 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 their prior decision finding him unsuitable was correct because they believed Shaputis still needed "more time to . . . come to grips with the crime and show that you know the reasons why you committed the crime," concluded this court's opinion barred them from finding Shaputis unsuitable on the same grounds and evidence previously considered and therefore found Shaputis suitable for parole. The BPH set his maximum term (after deducting credits) at 151 months, and because this term lapsed in November 1999, the BPH granted Shaputis parole subject to the special parole conditions that Shaputis submit to alcohol testing, participate in a substance abuse program and a domestic violence program, and ordered Shaputis paroled to San Diego County. 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

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fully accepted responsibility for and lacked sufficient insight about his conduct toward the victim.4 Shaputis petitioned the San Diego County Superior Court 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. The court denied the writ. Shaputis then petitioned this court for a writ of habeas corpus. IV LEGAL STANDARDS A. The Parole Decision The decision whether to grant parole is an inherently 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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