California Court of Appeal Apr 12, 2016 No. E062292Unpublished
Filed 4/12/16 In re Martin CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re MICHAEL MARTIN, E062292
on Habeas Corpus. (Super.Ct.No. RIC1401422)
OPINION
APPEAL from the Superior Court of Riverside County. Richard Todd Fields,
Judge. Reversed.
Kamala D. Harris, Attorney General, Jennifer A. Neill, Senior Assistant Attorney
General, Phillip J. Lindsay and Linnea D. Piazza, Deputy Attorneys General, for
Appellant.
Rich Pfeiffer, under appointment by the Court of Appeal, for Respondent.
1
INTRODUCTION
The People appeal from an order of the trial court reversing the Governor’s
decision that Michael Martin poses a current unreasonable risk of danger to the public
and is unsuitable for release on parole. We conclude that sufficient evidence in the
record supports the Governor’s decision in that Martin has minimized his involvement in
the underlying crimes, he lacks insight into his commitment offenses and criminal
history, and he has failed to participate in and complete sufficient substance abuse
Rushton A. Backer, Ph.D., a forensic psychologist, conducted a comprehensive
psychological risk assessment of Martin in March 2010. Dr. Becker stated his opinion
that Martin “appeared to have gained some accurate insight into his behaviors that led to
his life crime(s),” but his “insight remain[ed] limited.” Dr. Becker diagnosed Martin with
polysubstance dependence in a controlled environment and with antisocial personality
disorder, which is characterized by “a pattern of disregard for, and violation of the rights
of others, beginning in adolescence and continuing into adulthood.” Although Martin’s
behaviors had improved in the last 15 years, he had limited insight into the effect of his
personality disorder on his thoughts and behaviors. Dr. Becker found Martin’s remorse
and insight into his crimes “developing but incomplete.” Dr. Becker agreed with
Martin’s assessment that his drug addiction, desire to obtain money to buy drugs, lack of
morals and care for life, and being easily influenced by his crime partners were
contributing factors to his crimes. Dr. Becker opined that Martin had a “moderate level
of insight.”
Dr. Becker assessed Martin’s score for violent recidivism as being in the moderate
range and his score for general risk of recidivism as being in the moderate/high range
because of his pattern of antisocial behavior and his diagnosis of antisocial personality
disorder. In addition, Martin’s “sporadic” participation in alcohol and substance abuse
7
programs and his underestimation of the severity of his past substance abuse and risk for
relapse elevated Martin’s risk of dangerous behavior and violent recidivism. Dr. Becker
viewed Martin’s risk of relapse as high unless Martin made a commitment to participate
in AA or NA or similar programs in the community. In Dr. Becker’s opinion, Martin’s
risk of violent recidivism would increase if he used substances, even recreationally, but
would decrease if he participated actively in sobriety programs.
Dr. Becker’s report stated that Martin had used marijuana laced with PCP before
and during the commission of his crimes, and “had severe substance abuse/dependency in
the community, which affected all areas of his life and significantly contributed to his
behaviors leading up to his life crime(s).” Martin stated he did not have a problem with
drugs and had not used drugs for nearly 30 years; however, his file indicated he had not
used drugs for about 10 years, and his abstinence had “occurred in a highly structured
environment.” Dr. Becker noted that Martin’s “participation in AA/NA has been
sporadic by his own admission. He appears to underestimate the severity of his past
substance use and his risk for relapse once released.”
Dr. Becker stated in his report that Martin’s “use of drugs appears to have been a
major motivation for his participation in his life crime and likely impaired his judgment.
Although he reportedly has been sober for the past ten years, he appears to underestimate
his relapse potential. Unless he makes a commitment to actively participate in AA/NA or
similar programs in the community, his risk for relapse is viewed as high.”
Additional facts are set forth in the discussion of the issues to which they pertain.
8
DISCUSSION
Standard of Review
In reviewing the Board’s decision to release a prisoner on parole, the Governor
must determine whether the prisoner would pose a current danger to the public if
released. “[A]lthough the Board and the Governor may rely upon the aggravated
circumstances of the commitment offense as a basis for a decision deny parole, the
aggravated nature of the crime does not in and of itself provide some evidence of current
dangerousness to the public unless the record also establishes that something in the
prisoner’s pre- or postincarceration history, or his or her current demeanor and mental
state, indicates that the implications regarding the prisoner’s dangerousness that derive
from his or her commission of the commitment offense remain probative of the statutory
determination of a continuing threat to public safety.” (In re Lawrence (2008) 44 Cal.4th
1181, 1214.)
In turn, our review of a gubernatorial parole denial is “extremely deferential.”
(In re Rosenkrantz, supra, 29 Cal.4th at p. 679.) Because the superior court based its
decision solely on documentary evidence, we review the superior court’s decision
de novo. (Id. at p. 677.) We determine solely whether “some evidence” supports the
conclusion that the inmate is unsuitable for parole because he remains a current threat to
public safety. (Id. at p. 679.) We uphold the Governor’s executive decision “unless it is
arbitrary or procedurally flawed.” (In re Shaputis, supra, 53 Cal.4th at p. 221.) We
“consider the whole record in the light most favorable to the determination before [us], to
determine whether it discloses some evidence—a modicum of evidence—supporting the
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determination that the inmate would pose a danger to the public if released on parole.”
(Id. at p. 214.)
Evidence Supporting the Governor’s Determination That Martin Minimized
His Crimes and Lacks Insight into His Commitment Offenses and Criminal History
The Governor’s Determination
The Governor found that Martin continued to minimize the severity of his crimes
and did not sufficiently “accept or even appreciate” his actions. The Governor pointed
out that even though Martin had fired his gun at several robbery victims and had nearly
killed Frazer, Martin claimed at the Board hearing that he “‘just shot the gun . . . to scare
somebody’ and ‘didn’t know that it actually hit somebody’ until after his arrest. He
indicated that they never intended to hurt or kill anyone in the course of the robberies.
He stated that he left before Mr. Benard murdered Officer Sam and didn’t know that
Officer Sam would be harmed.” The Governor found that Martin’s statements “strain[ed]
credulity” and “lack[ed] all credibility.” The Governor concluded, “Until Mr. Martin can
come to terms with his actions, and better explain what led him to become so violent and
indifferent to human life, I am not prepared to release him.”
The Evidence in the Record Supports the Governor’s Determination
Dr. Becker’s report alone provides evidence to support the Governor’s
determination. Dr. Becker described Martin’s insight and self assessment as “developing
but incomplete.” While his insight was improving, it “remain[ed] limited.” Dr. Becker
also concluded that Martin’s “level of remorse and insight into his life crime(s)” was
similarly “developing but incomplete” although his remorse and insight were increasing.
10
The report stated that Martin appeared not to understand that his crimes “reflected
features of his Antisocial Personality Disorder,” and “it appears that he may still be
minimizing some of his behaviors during the commission of these crimes.”2
In addition, Martin’s own statements about his offenses and the Governor’s
assessment of the credibility of those statements provide further support for the
Governor’s determination. In describing the Sam incident to the Board, Martin stated
that he did not think violence was going to happen because he and Benard “had never
killed nobody or shot nobody that [he] had knowledge of,” but that he had just shot the
gun to scare people. When one of the commissioners pointed out that Martin had fired a
shot that hit the headrest of a car a person was sitting in, Martin stated he did not know he
had hit anyone until later. Martin likewise stated he did not know that Benard had shot
Fullwood in the face only hours before the Sam incident.
Martin told the Board that he did not remember hearing Benard say that Sam
needed to die after Benard found Sam’s correctional officer identification card.
However, at Martin’s trial, witness Michael Miller testified that Martin gave Miller a
watch to wear and said four or five times, you are wearing “a dead man’s watch.” At the
same time, Martin said three or four times that his partner had shot “a guy” and left him
2 Martin argues that Dr. Becker’s report, prepared more than two years before the hearing, was out of date. However, nothing in the record suggests that Martin’s circumstances with respect to the Governor’s concerns had significantly changed in the interim. Martin’s participation in substance abuse programs continued to be sporadic, and he stated at the hearing that he still did not have an AA or NA sponsor. His statements to the Board about his offenses were largely consistent with his statements to Dr. Becker about those offenses.
11
in the mountains. Another witness, Jerry Hill, who had been in jail with Martin, testified
that Martin told him that Benard took the driver away into the hills while Martin searched
the driver’s car. Benard “came down by himself and told him that he had shot the guy
and did he want to go see it.” Martin said he had not known the guy was going to be
killed. Martin told Hill that he knew the guy was a police officer because of some papers
found in Hill’s vehicle. Michael Atkinson, an accomplice in the Frazer and Coughlin
crimes, testified that Martin told him that after Benard found Sam’s correctional officer
identification, while going through Sam’s wallet, Benard told Martin to go down the hill
and that he, Benard, was going to kill Sam.
The Governor was free to make his own credibility determinations, and we defer
to those determinations. (In re Shaputis, supra, 53 Cal.4th at p. 214.) In light of the
whole record, we conclude that much more than a modicum of evidence supports the
Governor’s determination that Martin would pose a current danger to the public if
released in light of his minimization of and lack of insight into his commitment offenses.
(Ibid.)
Evidence Supporting the Governor’s Determination That Martin Failed to
Participate in Self-Help Programs
The Governor found that Martin had “participated in very few self-help programs
in nearly 36 years of incarceration, and has not completed any substance abuse classes
since 2009,” even though Martin conceded that his “drug addiction fueled his violent
criminal behavior.” The Governor found that lack of participation “concerning” because
Martin acknowledged that his drug addiction fueled his criminal behavior.
12
In In re Honesto (2005) 130 Cal.App.4th 81, the court upheld a decision to deny
parole based on a finding that the defendant “had not participated in adequate programs
in prison to reform himself.” (Id. at p. 97.) Although the defendant had earlier attended
AA and NA meetings, he had not done so for more than three years before the parole
hearing. The court noted that because the defendant “blamed his offense on his alcohol
abuse and yet had continued to abuse alcohol even while he was in jail pending trial, the
Board had good reason to be concerned about [the defendant’s] termination of his
participation in any alcohol abuse treatment program. His failure to continue to pursue
alcohol abuse treatment tended to indicate that he could not be counted upon to maintain
his sobriety upon his release.” (Ibid.)
Despite Martin’s concession that his drug use led to his criminal acts, the record
before this court shows that for approximately 29 of his 36 years of incarceration, he had
not participated in any substance or alcohol abuse programs, and his attendance at NA
and AA meetings had been sporadic even in the years before the Board hearing. As of
his hearing in 2012, Martin had not completed all 12 steps of an AA or NA program, and
he had no official AA or NA sponsor. Additionally, Dr. Becker stated his opinion that
Martin “appear[ed] to underestimate the severity of his past substance abuse and his risk
for relapse once released.” As in People v. Honesto, supra, 130 Cal.App.4th 81,
evidence in this record amply supports the Governor’s finding that Martin is unsuitable
for parole in that he poses a risk of danger to the community because he has failed to
fully participate and complete programs that would address his substance abuse
problems.
13
DISPOSITION
The order granting Martin’s petition is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J. We concur:
RAMIREZ P. J.
MILLER J.
14
AI Brief
AI-generated · verify before citing
Holding. The court held that the Governor's decision to deny parole was supported by sufficient evidence, specifically the inmate's minimization of his crimes, lack of insight into his criminal history, and failure to participate in necessary substance abuse programs.
Issues
Whether there is 'some evidence' to support the Governor's determination that the inmate poses a current unreasonable risk of danger to the public.
Whether the Governor's reversal of the Board of Parole Hearings' decision was arbitrary or procedurally flawed.
Disposition. reversed
Quotations verified verbatim against the opinion
“We conclude that sufficient evidence in the record supports the Governor’s decision in that Martin has minimized his involvement in the underlying crimes, he lacks insight into his commitment offenses and criminal history”
“We determine solely whether “some evidence” supports the conclusion that the inmate is unsuitable for parole because he remains a current threat to public safety.”
“In light of the whole record, we conclude that much more than a modicum of evidence supports the Governor’s determination that Martin would pose a current danger to the public if released”