In re Shigemura 9/27/12 CA4/1

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State: California

Court: California Eastern District Court

Docket No: D060974

Case Date: 10/23/2012

Preview:Filed 9/27/12; pub. order 10/23/12 (see end of opn.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

D060974 In re DENISE SHIGEMURA on Habeas Corpus. (Super. Ct. No. HC20547) APPEAL from an order of the Superior Court of San Diego County, Charles G. Rogers, Judge. Reversed.

In this case the Board of Parole Hearings (the board) denied an inmate's application for a parole date and she challenged the denial by way of a petition for a writ of habeas corpus, which the trial court granted. The warden of the prison where the inmate is incarcerated filed a timely notice of appeal.1 We reverse. The board denied the inmate a parole date principally on the grounds the inmate had not adequately demonstrated insight into the reasons she participated in the brutal strangulation and bludgeoning of the victim, who had been a friend of both the inmate

1 Although the inmate's habeas petition challenged the board's decision, Penal Code section 1477 requires a petition for a writ of habeas corpus "be directed to the person having custody of or restraining the person on whose behalf the application is made."

and the other two participants in the victim's murder. We believe the record, considered in the light of the deference courts must accord decisions of the board, fully supports the board's decision. The murder occurred after the inmate's former boyfriend lured the victim into a car the inmate was driving and strangled the victim while the inmate kept driving. The murder took place because the inmate's former boyfriend believed that murdering the victim was the only means of protecting himself, his current girlfriend and the inmate from a methamphetamine dealer who had frightened them and who they also planned to murder. In light of the murderers' paranoid and delusional belief system and its obvious power over the murderers, the board could reasonably conclude that, in making statements to the effect she simply should have said "no" to her former boyfriend while the murder was taking place, the inmate had no realistic appreciation of her own active role in the murder and the powerful psychological forces acting upon her and the other participants at the time of the life crime. That lack of insight in turn supports the board's ultimate conclusion that the inmate remains a risk to public safety. Accordingly, we must reverse the order granting the inmate's petition and direct the trial court to enter a new order denying the petition.

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FACTUAL AND PROCEDURAL BACKGROUND2 1. Inmate's Background Petitioner Denise Shigemura was 22 years old at the time of the life crime, which occurred on May 15, 1991. Shigemura's life up to that point in time had, in many respects, been difficult. As Shigemura freely admits, many of the difficulties she faced were of her own making. Shigemura was the second of three children born to a father of Japanese ancestry and a Caucasian mother. Shigemura reported that although she was not physically abused, her father was an alcoholic and her father's family had little respect for her Caucasian mother, who they treated as a slave. Although Shigemura's siblings were successful in school, she left high school at 15, when she gave birth to her first daughter. Shigemura passed the General Educational Development test at 17 and joined the navy, where she was trained as a paramedic. While she was in the navy, Shigemura married another member of the navy and had a second daughter. However, Shigemura's husband began physically abusing her and as their relationship deteriorated, she began using methamphetamine. In 1990, during one altercation between Shigemura and her husband, a neighbor and acquaintance, Robert Jurado, intervened to protect Shigemura and compel Shigemura's husband to leave the scene of the altercation. Shigemura and her husband 2 We grant the warden's motion to strike Exhibit C to petitioner's brief. Exhibit C, a statement of responsibility, was not considered by the trial court. 3

separated and later divorced and Shigemura began a romantic relationship with Jurado. Although Jurado had an ongoing relationship with a then 16-year-old girl, Anna Humiston, Shigemura and Humiston each accepted Jurado's relationship with the other and considered themselves sisters. After her separation from her husband, Shigemura was honorably discharged from the navy. However, Shigemura was not eligible for re-enlistment. Jurado was a methamphetamine user and distributor and Shigemura and Humiston were both using methamphetamine at the time of their respective relationships with Jurado. While involved with Jurado and after she separated from her husband, Shigemura left her two small children in the care of her former in-laws, who resided in the state of New York. In late 1990 Shigemura was arrested at a naval base in San Diego after methamphetamine and firearms were discovered in a vehicle she attempted to drive onto the base. Shigemura was convicted of drug possession and served seven months at the San Diego Metropolitan Correctional Center (MCC). In the spring of 1991 Shigemura was released from MCC to a local halfway house and began a full-time job. Shigemura planned to transition from the halfway house to a home with two friends, Brian Johnsen and his girlfriend Theresa Holloway, the victim of the life crime. Holloway and Johnsen were also friends of Jurado and Humiston. Shigemura has consistently stated that by the time she left MCC in the spring of 1991 her romantic relationship with Jurado had ended, she was no longer using methamphetamine and she was determined to remain drug free. However, on weekends, 4

when she was permitted to leave the halfway house, Shigemura stayed at Johnsen's house and continued to associate with Jurado and Humiston. 2. Life Crime A. Motivating Events On a weekend in May 1991, while Shigemura was staying at Johnsen's home, another methamphetamine user and distributor, Douglas Mynett, came to Johnsen's home, woke Shigemura up and accused her of taking money he had left in a bedroom. Mynett had a reputation for violence and his accusation frightened Shigemura. Mynett was known to sell drugs to Hells Angels and previously Mynett had kidnapped Jurado and held him for ransom because of money Jurado owed Mynett. Shigemura told Mynett she did not take his money and went back to sleep. When she woke up she discovered Mynett had taken her purse. Shortly after discovering the theft, Shigemura received a telephone call from someone looking for Mynett. The caller told Shigemura Mynett owed the caller money. This call sent Shigemura into a panic. By her own account, Shigemura concluded the person or persons to whom Mynett owed money would come after her, Jurado and Humiston because she believed Mynett would tell them Shigemura and the others had taken his money. Johnsen, who was in jail on a driving under the influence charge, called Shigemura who related what had happened. Johnsen in turn contacted Jurado and told him to pick up Shigemura. Jurado came to Johnsen's house, picked up Shigemura and took her to their friend Mark Schmidt's house. Shigemura told Jurado what had happened and Jurado told 5

Shigemura he owed Mynett money and he too was very concerned about what Mynett would do to them and their families. Jurado and Shigemura became convinced they had to kill Mynett. They had a three-way conversation with Johnsen in which they agreed on a plan to kill Mynett. Holloway was present at Schmidt's house along with Humiston. Jurado and Shigemura did not disclose to Holloway the plan to kill Mynett, because they believed Holloway would "snitch" them off to Mynett. Holloway, however, was very curious about what was going on and asked Jurado, Shigemura and Humiston a lot of questions about Mynett. The following day, Shigemura, Jurado, Humiston and Holloway were once again at Schmidt's house and Johnsen again called from jail. Johnsen spoke to Holloway and told her "everything." Jurado immediately concluded that they would have to kill Holloway and asked Schmidt if he had any rope. B. The Killing After Holloway found out about the group's plan to kill Mynett, Shigemura became more frightened and decided to go back to her halfway house. However, Shigemura did not have access to a vehicle and Jurado and Humiston agreed to take Shigemura to the halfway house. Upon walking out of Schmidt's house and after Jurado had asked Schmidt for a rope, Shigemura volunteered to drive the car Jurado and Humiston were using. Shigemura explained she volunteered because Humiston was too upset to drive. According to Shigemura's version of events, she got in the driver's seat, Humiston got in 6

behind Shigemura and Holloway got in the front seat next to Shigemura. Jurado got in the backseat behind Holloway. Shigemura began driving toward her halfway house knowing Jurado wanted to kill Holloway, had asked Schmidt for a rope, and was sitting behind Holloway in the car. While Shigemura was driving, Jurado put the rope around Holloway's neck and began strangling her. Holloway struggled and yelled "Why. Tell me why?" At one point, while Shigemura was still driving, Jurado pulled Holloway into the back seat of the car and Humiston got in the front seat. Shigemura began having trouble driving the standard shift car and Jurado told Shigemura to pull to the side of the 163 freeway near Balboa Park. Jurado pulled Holloway out of the car and threw her into a ditch near the freeway. Juardo then went into the ditch to make sure Holloway was dead and hit Holloway in the head several times with a tire jack.3 C. Attempts to Avoid Detection and Apprehension When Jurado came out of the ditch, Jurado, Shigemura and Humiston tried without success to leave in the car but it would not start. They pushed the car away from the location of the body and then walked up a hill where a passerby gave them a ride. At some point after the killing, they got some food and shot pool.

3 In People v. Superior Court (Jurado) 4 Cal.App.4th 1217, 1224, in which we found sufficient evidence to support a special circumstance lying-in-wait allegation against Jurado, based on the record in that case we described a lengthier period of time between the decision to kill Mynett and Holloway's death: "Approximately a week prior to the murder, both Jurado and his girlfriend, Shigemura, made efforts to obtain a gun. Juarado needed the gun in order to 'take care of somebody,' by which he meant to kill someone. Shigemura wanted the gun to 'take care of a problem.' " 7

The following day, a tow truck recovered the car for them. Because the inside of the car was covered with Holloway's blood, Shigemura and Humiston cleaned it. Shigemura had not returned to the halfway house and had missed her curfew. In order to explain her absence, she told the halfway house she had been beaten up by three men in an alleyway near Schmidt's house and Jurado inflicted a number of bruises on Shigemura's arm to corroborate her alibi. On the morning of May 17, 1991, a motorist was stranded on the 163 near the ditch where Holloway's body was thrown. The motorist noticed Holloway's body and called police. An autopsy concluded Holloway died of strangulation and blunt force head injuries. She was 17 weeks pregnant. Humiston told another juvenile about what had happened to Holloway and that she was killed because she had got Humiston and the others into a lot of trouble and had been snitching on them a lot. The juvenile contacted police and related what Humiston had told her. Police in turn contacted Jurado, Humiston and Shigemura. The three participants initially denied involvement in the murder, but when confronted with physical evidence and other information police had discovered, each admitted participating in Holloway's killing. Shigemura pled guilty to first degree murder and was sentenced to a term of 25 years to life. 3. Post-Conviction Conduct By her own admission, Shigemura only began a serious effort to change her life after being disciplined in 1994 for fighting with a girlfriend. Since then, however, she 8

has actively participated in a 12-step program, obtained a two-year Associate of Arts degree from a community college and earned a drug and alcohol counseling certificate. During her incarceration, Shigemura participated in a number of self-help groups and prison organizations, including veterans support, narcotics anonymous, conflict resolution through alternatives to violence, grief share, substance abuse, anger management, parenting, and women's advisory council. Shortly before the 2010 board hearing, which is the subject of this appeal, Shigemura was examined by a psychologist. According to the psychologist, Shigemura blames her low self-esteem, the peers she chose, and her fear of Jurado for her participation in Holloway's death. Shigemura stated: "I blame myself a lot . . . for being there and not stopping it." With respect to Shigemura's exploration of the commitment offense and her ability to come to terms with its underlying causes, the psychologist stated: "Ms. Shigemura has had many years to contemplate her crime. She has demonstrated a commitment to selfreflection and self-improvement, as evidenced by years of participation in educational programs, therapy and self-help groups. She appears to have given the commitment offense a great deal of thought. She has explored the ways in which she allowed the offense to take place, including succumbing to negative peer influence; depression (including feelings of hopelessness, lack of motivation or drive, and low self-esteem); passivity and lack of assertiveness skills; problematic substance use; and failure to ask for help. She expressed guilt and remorse for having contributed to the victim's death. Ms. Shigemura is not using the fact that she was a relatively passive participant in the offense 9

as an excuse to minimize her level of responsibility in the crime nor does she question her sentence." 4. Parole Hearing At the parole hearing, Shigemura again expressed her remorse for participating in Holloway's death and discussed how she has become more assertive and independent. Shigemura agreed that a written statement about the life crime she had prepared accurately reflected her feelings. However, for the most part, Shigemura exercised her right not to discuss the life crime. Shigemura did tell the panel that while Jurado was killing Holloway in the car next to her while she was driving, she felt paralyzed and could not think. The San Diego County District Attorney vigorously opposed Shigemura's request for a parole date. In particular, the district attorney directly challenged Shigemura's narrative in which she portrayed herself a passive participant whose principle culpability was her failure to stop Jurado. The district attorney stated: "You know, there's been talk before in previous hearings and in the record about how she wasn't really an active participant, and really didn't know what's going on. That's absolutely untrue. At page 10 of the original probation officer's report, there's an indication back at the time of the offense, again, that she knew about the crime ahead of time. She was the wheel person for this crime. I mean, somebody had to drive this vehicle in order for this victim to be strangled the way she was, and beaten to death. And she was the person who willingly drove that vehicle for that particular purpose, and we find it absolutely outrageous and horrifying that this has never really been fully fleshed out or exploded in any meaningful 10

way. I mean, the plan was to kill her while they were driving, and she was the person driving to facilitate that. Never once has she admitted that, never once has she faced up to that, or never once has she accepted that. And we feel that's an extremely important point that's been just completely overlooked in terms of her explosive nature or what she could be capable of doing it things just don't go quite her way or somebody stronger than her is involved with her once again in a relationship she says that she just froze and wanted to stop the crime, but that's not what she did. She kept right along continuing her role in the offense, which was to drive the vehicle to facilitate the murder. And yet she said during the time thatupon several questions it took before she would admit what she was thinking, and she said she was thinking she had to stop them. And we do not feel that this is any way true whatsoever. She had no intention of stopping them. She may have been horrified by the violence, she may have been stunned by it, but allowed it simply to go on, doing nothing at all to prevent it, and in fact, participating later in a clean-up and in covering up the offense." The panel hearing Shigemura's application denied her request for a parole date. The chair of the panel stated the panel did not believe she had come to grips with her role in the crime. In particular, the chair was bothered by the fact that although the written statement Shigemura had provided discussed her life before the crime and her work after the crime in some length, she provided very little information about what she felt when the crime was being committed. The chair stated: "[U]ntil you come to grips with this crime and actually deal with it in a more assertive wayyour commentary were things like, I couldn't believe this was happening, was what you told one of the psychs, couldn't 11

believe this was unfolding. Those are very generalized statements, and when you contrast that with the work that you've done on yourself to find out how you got there and then gloss over the crime, jump right over it to some other circumstance, that tells us that you have not worked on the crime itself. You don't have to tell us, you're not going to have to tell any Panel, that you heard six or seven or ten blows, but we have tothere was a tremendous act of violence that was occurring in your very presence, and you don't even talk about it. You don't even mention it. It tells us that that is still probably pretty horrific in your own memory, and that you still have not dealt with it. Now, do I think you can? Certainly. I just don't think you have. I think you've masked it with determining, and the release that that is, determining how you got to where you were. That is a very freeing experience, but you've got to go beyond that. You have to actually deal with, not only for your purposes, for this Panel, for [the Holloway family members who appeared remotely by television], they need to understand that you have come to grips with this, and we just didn't hear it today." More particularly, the chair criticized Shigemura's description of her role in the crime: "There's no question we understand that you're responsible, but in your commentary . . . you describe your role there as almost a leadership role, that all you needed to do was say, stop this, and it would have stopped. I don't believe you were in a leadership role, so I don't know why you say that, unless it's playing to the Panel. You probably had no ability to do anything that day. You need to come to grips with that. And until you do, you're still a risk."

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5. Habeas Proceedings As we have indicated, by way of a petition for a writ of habeas corpus Shigemura challenged the board's decision to deny her request for a release date. The trial court granted the petition. The trial court stated: "In petitioner's case, the Board's findings that her statements lacked insight and that she did not truly understand her role in the crime or the nature of her actions are unsupported by the record and inconsistent with the weight of the evidence in the record. . . . Here, petitioner's insight was shown by the record and does not indicate current dangerousness." As we noted at the outset, the warden of the prison where Shigemura is incarcerated filed a timely notice of appeal.4 DISCUSSION I The decision whether to grant parole is an inherently subjective determination (In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz )) that is guided by a number of 4 Shortly before we heard argument in this case, the warden asked that her appeal be dismissed. At argument we inquired of counsel for the warden what, if any, grounds supported the warden's request for dismissal. Counsel was unable to provide us with any information with respect to the warden's request. Because of the seriousness of the life crime, the importance of the board's role in protecting public safety and the extreme deference courts must accord board decisions, we deny the warden's request for dismissal. We note: "After the record on appeal is filed, dismissal of the action based on abandonment or stipulation of the parties is discretionary, rather than mandatory. [Citations]. 'We have inherent power to retain a matter, even though it has been settled and is technically moot, where the issues are important and of continuing interest.' [Citation.]" (City of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1121, fn. 5; see also Cal. Rules of Court, rule 8.244.) 13

factors identified in Penal Code5 section 3041 and the board's regulations. (Cal. Code Regs., tit. 15,

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