Document 8-12
Filed 12/26/2007
Page 1 of 46
EXHIBIT I (PART 1)
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 2 of 46
Name Address
DARRYL DAWSON P.O. BOX 989 ZW-137L -:-.,..-
_ _
MC~275·
SUPREME COURT
SOLEDAD, CA 93960-0689
FILED
'MAR 1 ~ 2007
Frederlok K. Ohlrich CI(1}rk
C30679
CAL~FORNIA
SUPREME COURT
(Court)
Depufy......."'....."'. ··...
DARRYL DAWSON,
Petitioner
PETITION FOR WRIT OF HABEAS CORPUS
vs.
No:
BOARD OF PAROLE HEARINGS,
Respondent
(To be supplied bythe Clerk of the Court)
·815.1012
iNSTRUCTIONS---REAo CAJ:<~FULLY
If you are challenging an order of commitment or a criminal conviction and are filing this petition in the Superior Court, you should file it in the county that made the order. , If you are challenging the conditions of your confinement and are filing this petition in the Superior Court, should file it in the county in which you are confined.
Read the entire form before answering any questions. This petition must be.clearly handwritten in ink or typed. You should exercise care to make sure all answers are true and _
~ou
" ·
__._ _.._ . _correct.. Be_cau_s_~-the_p-E1.t!tiQoJD9j,J.9~-.9 Y§rjficatiRlJ..Jb.e-'J)p')
, If you are fili1ig this petition in the Superior Court, you need file only the original unless local rules require additional copies. Many courts require more copies. · If you are filing this petition in the Court of Appeal, file the original and four copies of the petition and, if separately bound, one copy of any supporting documents. ir'you are filing this petition in the California Supreme Court, file the original and ten copies of the petition. and, if two copies of any supporting documents. Notify the Clerk of the Court in writing if you change your address after filing your petition. In most cases, the law requires service of a copy
RfaC~i\b~tO:J,
MAR 1
s Z007
COURT
~f the petition on the district attorney,
city attorney, or -;-~¥SeS!JJ?rR.f
Penal Code section 1475 and Government Code section 72193. You may serve the copy by mail. Approved by the Judicial Council of California for use under Rule 60 of the California Rules of Court [as amended effective .!-anuary 1, 2005]. Subsequent amendments to Rule 60 may change the number of copies to be furnished to the Supreme Court and Court ?f Appeal.
Page one of si:r;
=.;r"'!\ .':'.::;:t'O'~e~ by
"':1,.~-::c:;,1
the Cocr:QI of Ca;lrornll=
PETITION FOR WRIT OF HABEAS CORPU$
Penal Code. § 1473 at seq.:
Cal. Rules or Court. rule 60(0)
:.iC'::;':; iRe" ':o..:ly i. 20C5J
American legalNel, Inc.
WYNI.USCcuriForms.com
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 3 of 46
·... ( ... _..
. .. ~
This petition cqncerns: .
.0
!
!
A conviction A sentence Jailor prison conditions
CD Parole
o
o o
DARRYL DAWSON
Credits Prison discipline
T=:J Other (specify): - - - - - ' - - - - - - - - - - - - - - - - - - - - - - - - - 1. Your name: 2. Where are you incarcerated? 3. Why are you in custody?
CORRECTIONAL TRAINING· FACILITY - SOLEDAD
[J[] Criminal Convicti~n
0
Civil Commitment
Answer subdivisions a. through i. to the best of your ability.
a. State reason for civil commitment or, if crlminalconviction, state nature of offense and enhancements (for example, "robbery with use of a deadly weapon").
MURDER / ROBBERY
ARMED WITH A FIREARM
187 PC / 211 PC .
c. Name and location of sentencing or committing court: .
LOS ANGELES COUNTY
d. Case number: e. Date convicted or committed:
A-357550 May 22, 1981
- - - - - - - - - - - - - - - , - - - - - - - - - - - - -..----
---------f~--Date-sentenced;------------------··- ..- -
g. Length of sentence: . h. When do you expect to be released? i.
38 to lii e Unknown ----------------------------,------
Were you represented by counsel in the trial court?
[!]Yes.
o
No.. If yes, state the attorney's name and address:
4. What was the LAST plea you entered? (check one)
IJO Not guilty 0
r.~ Jury'
Guilty
0
Nolo Contendere
0
other:
--------------------
5. If you pleaded not guilty, what kind oftrial did you have?
L I JUdge without a jury I I Submitted on transcript
0
Awaiting trial
:.IC.275!R:;.. ":ar.!,;ar/
~
19ti9j
PETITION FOR WR! I OF HABEAS CORPUS
Page two cf six
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 4 of 46
6. GROUNDS FOR RELIEF Ground 1: State briefly the ground on which you base your clalrn fque!ief. F9f example; "the trial court Imposed an illegal enhancement. n (If you have additional grounds for reliet; use a separate page for each ground. State ground 2 on page four. For additional grounds, make copies ofpage four and r:umber the additional grounds in order.)
SEE ATTACHED.
a. Supporting facts: Tell your story briefly without citing cases or law. If you are challenging the legality of your conviction, describe the facts upon. whloh your conviction is based. If necessary, attach additional pages. 'CAUTION: You must state facts, not conclusions. For example, if you are claiming incompetence of counsel you must state facts specifically setting forth what your attorney did or failed to do and how that affected your trial. Failure to allege sufficient facts will result in the denial of your petition. (See In re Swain (1949) 34 Cal.2d 300,304.) A rule of thumb to follow is: who did exactly whatto violate your rights at what time (when) or place (Where). (If available, attach declarations, relevant records, transcripts, or other documents supportIng your claim.)
SEE ATTACHED
b. Supporting cases, rules, or other authority (optional): . (Briefly discuss, or list by name and citation, the cases or other authorities that you think are relevant to your claim. If necessary,. attach an extra page.)
SEE ATTACHED
:.:t.·':75 {Re!: Ji:ilh.:ary 1. 1999]
PE I j nos FOR WR! I Or HABEAS CORPUS
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 5 of 46
SUMMARY OF CIRCUMSTANCES
.
_- --- -
THIS IS A MURDER/ROBBERY CASE IN WHICH PETITIONER WAS NOT THE ACTUAL SHOOTER. FOR A MORE DETAILED DESCRIPTION OF THE· CIRCUMSTANCES REFER TO THE . PSYCHOLOGICAL REPORT HEREIN ATTACHE'D AS AN EXHIBIT· - - -_.- - - - - -- - - - ------ --- - - - - - - - - - - ---_.-._-_._- -_._---- ---- ---- ---._.- -
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 6 of 46
1
2
3 4
DARRYL DAWSON C-30679 P.O. BOX 689 ZW-137Lo SOLEDAD, CA 93960-0689
in pro per
5
6
SUPREME COURT OF CALIFORNIA
7 8
9
In re DAWSON petitioner,
Case No. :
10 11
v.
B. CURRY, WARDEN (A), et aI, Respondent
PETITION FOR WRIT OF HABEAS CORPUS
12
13
14
15 16
17
-- - '~1:8'-
._- --- - -
- -
-
-_._---_.- - · _ .
w_.
.
----O
O_MO
..__.__
19 20
21
22
23
24
25
26
27
28
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 7 of 46
1
TABLE OF CONTENTS TITLE
Cover Table of Contents Points and Authorities Judicial MC-275 Ground 1 Ground 2 Conclusion Prayer for Relief Proof of Service by Mail Exhibit 'A' (Hearing Transcript 2006) Exhibit 'B' (psychological Evaluation) Exhibit 'C' Life Prisoner Evaluation Report (LPER) Exhibit'D'
. .
2
3
4
PAGE
1
2
5
6 7
8
9
3-4
5 -19 7-14 14-15 16 17 18 19 -98
10
11
12
13 14
98 -102
15 16
17
-
102-109
_
,
109-
.
- - ----~8- - _(P.!eViou_~peQ.@Q!l.§1-9..Qll_~
- - -- - --- --- - - - --- --- -----,.----- -- --;'-- :-- ~_..:.~-- _.:. - - -- - ----~-- - .
19
20 21 22
23
24
25
?6
27 28
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 8 of 46
1
TABLE OF AUTHORITIES AUTHORITY ' CONSTITUTIONAL AUTHORITIES PAGE
2
3
4
U.S.
5 6
7
CONSTITUT~ON,
AMENDMENT 7, 14
5, 6,9, 10, 11, 14, 15 5,6,9, lQ, 11, 14, 15
CALIFORNIA CONSTITUTION, ARTICLE I, SECTIONS 7, 15 FEDERAL CASE LAW .
Biggs v. Terhune, (2003 9th Cir.) 334F.3d 910 Irons v. Warden of Solano (2005) 358 F.Supp. 936 Martin v. Marshall (2006) 431 F.Supp.2d 1038 McQuillion v. Ducan, (9 t11 Cir.) 306 F.3d 895 ' Rio v. BPT Commissioners (2006) NDNo. C 05-1483 MPH Rosenkrantz v. Marshall (2006) 444 F.Supp.2d 1063
8
9
. 5,6,8,9, 12
10
11
11
5,6 12
12 13
14
11
15
16
STATlfcASE LAW
.
17
~.
~
19
20
21 22
23
24
25
26
27 28
In re Capistran, (2003) -, -107-8al.AppA!!! -1--299:-' --In re Caswell, (l0/10/01) 92 Cal.App.d'" 1017 Inre Elkins 2006 DJDAR 14489 Inre Jackson, (1985) 39 Cal.App.3rd 464 Inre Lee (2006) 143 Cal.App.d" 140 In re Minnis, 7 Cal.3d at p. 647 In re Norman Morrall, (200 2) 102 Cal.App.d" 280 01); InreEdwardRmmr~,90 94 C;:;al.App.4th 549 In re Rodriguez, (1975) 14 C.3d 639 In re Rosenkrantz (2002) 29 Cal.App.e" 659
13.,14 13,14 10 13,14 10
o
6
. 5,6,8, 13, 14 5,6,9, 10 13, 14 13, 14 5,6
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 9 of 46
1
STATE CASE LAW
2
3
4
In re Rosenlcrantz,
95 Cal.App.d'" 358 In re George Scott
13,14 5, 8
5
119 Cal.App.c"
5
6 7
In re Mark Smith, (2003)
Cal.App.d" 343
8 9
10
11
12
13 14
15
16
17
--------18-- -------- - - ------------------- ----- - - ----------- -----;---- - - - - - -_ ------ ------- - - - 19
20
21
22 23
24
25
26
27 28
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 10 of 46
1
2
3.
4
TABLE OF AUTHORITIES PAGE 2
PENAL CODE § 3000(b)(1) . § 3041(?-) § 3041(b) § 3041.5 § 3041.5(b)(2)
PAGE
5
10, 11
5 6
5,6
5,6,9 13
7
8
9
§ 5076.2
13
10
11
CALIFORNIA CODE of REGULATIONS CCRSECTION
CCR § 2000(b) (48) [Good Cause] CCR § 2000(b) (61) [Material Evidence] CCR § 2000(b) (89) [Relevant Evidence] CCR § 2400 et seq. § 2282(a)
12 13
14
PAGE
13, 14
13, 14
15
13,'14
13, 14 8
1.6.
17
- - - -"'-18--' -
--§14U2Ta)- -
~ -.--- '-"- -.----.----- --_. --'---
----- -6:----~----.-_.
8 6,9 8
.
_
19 20 21 22 23
24
§ 2402(c)(1)(D)
.
§ 2403(c) § 3375.2(7)(A)
25
26
27
28
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 11 of 46
1
2
Cover Page of MC-275 goes here
3
4
5
6
7
8-
9
10
11
12
-13
14
15 16 17
-18- -------- - - ---------------- --------- - ----------- --------------------------------- --,--------- __
19
20
21
22 23
24
25
26
27
28
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 12 of 46
1
2 3
4
Page 2 of MC-275 goes here
5
6
7
8.
I
9
10
11
12
13
14
,
15
16
17
-
---rs-' -. -- --- -----..- -..-.----------.- -- - - - - ----;-__._._ . _._.. _._ ...
19
20
..
. _-'-,-,
.
21
22 23
2'4
25
26
27
28
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 13 of 46
1 2
3 4
5
6
7'
THE BOARD OF PRISON TERMS ILLEGALLY USED PENAL CODE SECTION 3041(b) [THE EXCEPTION] TO FIND PETITIONER UNSUITABLE FOR PAROLE. AS THERE IS NOT A MODICUM OF EVIDENCE THAT PETITIONER IS A CURRENT THREAT TO SOCIETY OR OTHERWISE UNSUITABLE FOR PAROLE THE DECISION WAS ARBITRARY AND CAPRICIOUS VIOLATING PETITIONER'S STATE AND FEDERAL :000 PROCESS RIGHTS.
On OCTOBER 5, 2006, Petitioner DARRYL DAWSON, C-30679· (hereinafter "Petitioner"),
8
wasprovideda Life Term Parole Consideration Hearing before the Board of Parole' Hearings
(hereinafter "Board", "BPH", 'or "Panel"); Please refer to Exhibit cA' which is the Hearing Transcript (hereinafter "RT" or "Transcript"). Said Hearing was Petitioner's SECOND.parole suitability hearing. Petitioner's' Minimum Eli~bJ'e' parole. Date (hereinafter "MEPD"), was . .. ..
9
10
11
12
13
14
MAY 31, 2004. 1 The purpose of thi~' Boa;d
h~arin~'~as for
the setting of Petitioner's' term
uniformly 2 to his offense and for a finding of suitability for parole (See Penal Code § 3041.5;
In. re Edward Ramirez, 94 Cal.App.a" 541 (2001); McQuillion v. Duccw. (9th Cir.) 306 F.3d
15
895; In. re Norman Morrall, (2002) 102 Cal.App.d'" 280; In. reo Rosenlaantz, (2002) 29 Cal.App.c" 66.0; In. re Mark Smith, (2003) Cal.App.c" 343; and the recent Biggs v. Terhune, (2003 9th Cir.) 334 F.3d 910.
16
17
---- .- -1-8----- - The
19
resuh oTtliis"Boaia.-lieanngwas-a.-rlerroneOusand UrilaWfiir:fi.ll
a release date was not. set, Instead, Petitioner was given a
.
two
(2) year denial and did not
20
appeal this decision through the administrative remedy because the Board has eliminated the BPT Appeals Unit and no longer allows for the li1ih~ 'ofadministrative appeals on BPT denials
1 - The Court of Appeal in In re George Scott, (2004) U9 Ca1.AppAth 871, reaffirmed th!'l rationale of the Ramirez and Smith Courts when it declared .....parole is the rule, rather than the exception, and conviction for .second degree murder does not automatically render one unsuitable. (In re Smith, (2003) 114 Cal.App.a" 343, 366). In re Ramirez, supra, 94 Ca1.AppAth 549 ...[a]ll violent crimes demonstrate the perpetrator's potential for posing a grave risk to public safety, yet parole is mandatory for violent felons serving determinate sentences. Penal Code § 3000 subd. (b)(1).) And the Legislature has clearly expressed its intent that when murders - who are the great majority of inmates serving indeterminate sentences - awroach their minimum elil!ib1e parole date, the . Board shall normally set a parole release date·..." (id. at p, 570). . 2. - The Court ofAppeal on June 24, 2004, in In re George Scott, supra, 119 Cal.AppA th at 887 fn. 7, also reaffirmed the Legislative Intent of Uniform terms by stating: "The first two sentences of the DSL declare 'that the purpose of imprisonment for a crime is punishment' and that [t]his purpose is best served by terms . 'proportionate to the seriousness ofthe offense with provisions for uniformity in the sentences of offenders . committing the same offense under similar circumstances. (penal Code § 1170, subd. (a)(l ).) Nothing in the DSL or its legislative history suggests that legislative concern wi-th uniformity was limited to those serving determinate terms. Penal Code § 3041 shows that this interest does extend to individuals such as [this Petitioner] who are serving indeterminate life terms. (Id., citing Ramirez, supra 91 ~.al.AppAth at 559).
I: i
21 22
23
24
25 26
27
28
.."::':1 .." . .
':.
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 14 of 46
1
ofparole for indeterminately sentenced prisoners such as Petitioner. Petitioner submits that the Board's regulation, that is the California CodeofRegulations (hereinafter "CCR"), § 2402(a)
DE~S that the Board set a release date unless Petitioner CURRENTLY presents an
2
3 .
4
unreasonable risk of danger-to the public. Petitioner submits that the representing District Attorney did not provide any new and/or additional evidence whatsoever that Petitioner is an unreasonable risk of danger to the public or otherwise unsuitable for parole. Additionally, Petitioner submits that the Board speaks in meaningless generalities and fails to address the exact nature ofPetitioner's CURRENT character. By not doing so, the Board violated the intent ~d spirit ofPenal Code (hereinafter ''PC''), § 3041.5
3
5
6 7
8
9
andIn re Ramirez,
supra, which dictates .that the Board shall normally set a parole release date. (citing Biggs v.
11 12 13
14
Terhune, supra):
1 ". ' .. ;,:J pn';'.'':i, r:', ~/:,;!I :.:.. ;' ' .. :.: , .
The Court in Biggs, supraheld thatthe "Boatel's continued use of the crime (or any other unchanging circumstances)
.
as' a basis'for 'denial of parole when: Petitioner's Institutional
,
Behavior remains 'exemplary'may be ~('V:i'l!>1'atioii '6fb'dthBta.te arid Federal Due Process. Since his incarceration, Petitioiie:tiiias;h~aitW6iRii1es-Viola:tlori.~Reports, a s'erious one on 10/21/82 for fighting and ail'a~stt~tive'6:t.le·6i:i:'l/12/02'for sexual misconduct. He has had no occurrence of serious or violent dlsCipiinariactiOlfsince 1982, thus exemplifying a model
'pri"~oner~Tiiere lias been tIiereafter-at6~tInu6us' TWENTY FIVE'{25)year-hisfory freeofany-'- --
15
16 17
- - - '--is
19 20 21
22
23
24
- -.- - ,
serious violent disciplinary action or occurrence. Petitione~ submits that the Board's failure to uniformly meas~e his offense'and ket Db lt8i:TIi ptoptii-tidiiiteiy to-others similarly situated and to find him suitable for parole violates hath 'staf~
,
ahd Federal due Process. Also, the current
,
policy of the Board, which will be d'iscU:s·~eci.
more' fully infra, is the setting of a parole date
which is all too often the exception rather than the nann, and thus violates Petitioner's Liberty Interest that i~ present in a parole date; tn''re'Ro~etlkraht:t supra; McQuillion v. Ducan, supra; Biggs v. Terhune, supra. At'ihe Petitib~er~;'·b6afdb.eari.n:~
25
the BPT relied solely on Petitioner's
26
27
2B
3 - There is no 'evidence that the crime is ''parti6UlarlY egiegi6i:1~'f;t'oij:Usilly the use of the exception clause of PC § 3041 (b); In re Norman Morrall, ~up!a, the .c,ourt ,coD;cluded ','[WJ~ aw:e~ that an inmate cannot be denied parole simply on the type of offense he committedi" (S~e ialsoln re: Miiuifsn' Cal.Sd at p. 647). To the contrary, itfalls squarely in the Board's own proportionality matrix CCR § 24,03(~) .~t axis B-II. Without post-conviction credits Petitioner has served twenty two (22) years. Adding post· conviction credits he has served twenty seven (27) plus
years, essentially reaching his matrix as require~. There is ~o evidence that Petitioner is a current risk or threat to society and the Board's conclusions are not supported by the record, (See Biggs, supra). ,
"'
..: ~ . ."; .
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 15 of 46
1
commitment offense and prior history to justify its unl.awful finding of unsuitability. Beginning
. .
2
3
4
at page 68 ofExhibit 'A', the HT, the Board stated: "This commitment offense was disastrous. It was awful, somebody died." (line 17-18) "The offense was carried out in an especially cruel and callous manner, multiple victims were attacked and one was killed. And this was in more than one incident. There are three separate crimes committed here. Three separate acts of violence. The offense was carried out in a dispassionate and calculated manner that showed exceptionally callous'disregard for human suffering. And for the loss of life and at least 12 other victims that suffered there was something like 33 hundred dollars." (HT-69 lines 4-14)
;',"
5
6 7
s
9
10
11
i2
13
14
In addition, and with regard to the Petitioner's 'suitability, the board erred in disregarding
Petitioner's Mental Health Evaluation which is supportive ofrelease (please refer to HT DECISION pg. 38 lines 14-27 line). Petitioner's Psychiatric Reports have been much instructive. Specifically, Dr. W. Gamard, Ph.D., CTF.:.Soledad, StaffPsychologist, stated: "Inmate DAWSON was a participant ill the Triple CMS Program unti11997. He was depressed at the time, was evaluated as 'not, not a.sociopath and was prescribed . _.- -_. _._.. - - - -
15 16
17
-, -
--ls----·-VistaIiI for-sleep. ns:e-iIiiila1£saicfiibouftliis, -'Twas-n'Geeing my-people eriough~T 19
20
was stressed out from moving to cell living to dorm living where it was very noisy. I couldn't sleep.' Uh, the diagnosis was, "Axis One.poly-substance abuse in institutional remission. Axis Two, no contributory personality disorder, a GAF score of 80. Should this inmate at this time be given a parole release date his prognosis for maintaining his present gains in the community is excellent." (See Exhibit 'B' pg. 3, Psychological Evaluation, Current Mental Status) And under "Assessment of Dangerousness." Dr. Gamard stated:' "This inmate has received only two 1 i 5 violations during his entire incarceration of 23 years. If released to the community" - oh, excuse me. "Therefore it is felt that he would pose a less than average risk ofviolence when compared to the Level Two inmate population." (Id., p. 4)
21
22
23
24
25
26
27
28
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 16 of 46
1
2
Additionally, the Board ignored that Petitioner has been deemed by the California Department of corrections a Model prisoner with -A-1-A status, and Not a threat to society, and that Petitioner's crime is not "particularly egregious" (especially cruel and callous SWCE HE WAS NOT THE SHOOTER) by placing Petitioner in a Level II prison setting. 4 Also, in the Life Prisoner Evaluation Report (hereinafter "LPER") attached as Exhibit 'C', Petitioner's Correctional Counselor, CC-I Peabody, states: "Dawsons's residence and employment plans appear realistic to tbis writer. Dawson will not be able to secure any firm offers of employment until he can provide the . prospective employer with a parole date, and therefore bis lack of speCific. employment offers does not appear to be an issue subject to bis control. Considering the commitment offense, minor prior record and positive prison .adjustment over an extended period of time, this writer believes that the prisoner would probably pose a low degree of threat to the public at this time, if released from prison, should he remain drug and alcohol free." (Exhibit 'C' p. 7) Again, in In re Norman G. Morrall, supra, the Court concluded; "A refusal to consider the particular circumstances relevant to an.inmate's individual suitability for parole would be contrary to law." Moreover, the Court in Biggs; .supra,' addressed the Board's continued illegal
.
3
4
5
6
7
8
9
10
11
12 13
14
15
16
17
-_.- ----18 -use-oillie·crime andiorIlnor Jllstory to~jusffiY:ii'Ciemarorparo1e:19 20 21
·22
-- ---:--- ---- --- -- ._---..- _- -.
~
.
" ... a continued reliance... on an unchanging factor, the circumstances of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation".
~, supra, 33~
F.3d at 917).
23
24
25
26
27
28
4. California Code of Regulations, Title 15, section 3375.2 subd. (7)(A) states: "An inmate serving any life term shall not be housed in a Level I or II facility if any of the following case factors are present: The Commitment Offense involved... unusual violence...." And on June 24, 2004, the Court of Appeal in In re George Scott, supra, 119 Cal.App.e'" at 892 fn, 11, found that the Board's regulations provide that even lithe crime is "exceptionally callous" an inmate may be found suitable for parole: The 'Co-iil1:'dec1frred that ''Under the Board regulations, base terms for life prisoners are not calculated until after an inmate, is deemed suitable for release. (§ 2282, subd, (a).) The regulations therefore contemplate that an inmate may be deemed suitable for release even though his offense demonstrated "exceptionally callous disregard for human suffering." (§ 2402, subd, (~)(1)(D).)" (Id)
,
.
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 17 of 46
1
In Biggs, supra, the appeal was pursuant to his initial suitability hearing. The Petitioner has now had TWO Board hearings and submits that his most recent denial rests solely on-the commitment offense, (as did his previous hearings in 2003, included herein as Exhibit 'D"), and therefore violates both State and Federal Due Process. Most importantly, there is no evidence that the public safety requires a lengthier period of incarceration (please refer to PC § 3041 (bj), in relation to other instances ofthe same crime please refer to PC § 3041.5. Petitioner submits that understanding and perspective ofthe crime is compelled by the
.
", "
2
3
4
5
6 7
8
Board's own proportionality ma~ (please refer to CCR Division 2,.§ 2403(c). The matrix scale and rating of the more common and routine variations-of-murder appear to a codification ofwhen a crime ofthis nature can be more egregious than average. Petitioner submits that his crime falls squarely in the matrix· [category B-Ill, 28-29-30 years]. With post conviction credits, Petitioner has exceeded the maximum by more than TWO (2) years and without post conviction credit application, Petitioner has served his matrix. The Board fails in any attempt to substantiate why Petitioner's crime is so heinous as to require that Petitioner be exempted time and time. again from the general rule that a parole date shall normally be set; please see In re R~ez, supra, wherein the court states:
9
10
11
12
13
14
15 16
17
"The Board must weigh the inmate's crimfnal conduct not 'against ordinary
-.--'- -l's-'·--------soCiiLlnorms, but agamSt other iiis"taiic~.s~nliesamecrime-orcdiiies:-(I{itiiiITez,--- - --- -~ _._-19 20
supra, Cal.App.d'" at p. 570).
Petitioner submits that the record is devoid ofthe Board making such a comparison. Similarly, Petitioner's Psychiatric Report evidence, like Biggs, supra, is supportive ofrelease;' contrary to the Board's erroneous and specious findings (please see Exhibit 'A' and 'B'). The court in Biggs, addressed the Board's illegal usage ofiieeded therapy and other illegal reasons to justify a highly illegal deniaL The Court concluded:
21 22
23
24
25
26
27 28
"The record in this case and the transcript of Biggs' hearing before the Board .clearly show that many ofthe conclusions and factors relied upon by the Board were devoid of evidentiary basis."
~; ;supra,334
F.3d at p. 915)
The Court in Biggs, supra, went on to wam the Board that while there was' "some evidence" to use the crime as a basis for 'denial at his initial hearing, the board's continued use
Case 3:07-cv-04821-WHA
Document 8-12
· ":lo.
Filed 12/26/2007
Page 18 of 46
1
The existence of said policy in denying parole may explain why the Board only grants parole in less than two (2) percent of the cases it hears; it also explains the bias demonstrated in the present case.
2 3
4
In this case, Petitioner's own circumstances, the Board's pronouncement of numerous
unlawful conclusions, not supported by the record, violates the process due to Petitioner under
,
5
6 7
8
9
'
the State and Federal Constitutions. Based upon the herein-demonstrated bias, the Board's decision cannot be shielded by the "some evidence" standard. The only appropriate remedy is an independent review. Petitioner respectfully requests that the Court take a look and compare this case [where Petitioner -did not actually kill the victim] with others where the circumstances were more aggravated, yet reviewing courts found that due process was violated and the "some evidence" standard not met. The Court in In re Wen Lee (2006) 143 Cal.AppA th 1400, [a multiple victims case with one person dead], found that Lee's crimes were not "especially heinous, atrocious or cruel." Additionally, the Court held, "Besides not being especially atrocious, heinous or callous, Lee's crimes have little, if any, predictive value for future criminality. Simply from the passing of time, Lee's crimes almost 20 years ago have lost muchof their usefulness in foreseeing the
10
11
12 13 14 15
16
17
19 20 21 22 23
24
"The test is not Whether, some evidence supportsthe reasons cited for denying parole, but whether some 'evidence indicates a parolee's release unreasonably endangers public safety." Some evidence of the existence of a particular factor does not necessarily equate to some evidence the parolee's release unreasonably endangers public safety.
In In re Jeffrey Elkins, 2006 DJDAR 14489, Elkins beat his victim over the head with a
baseball bat, robbed him, put the body in his car trunk and drove to a remote area where he dumped the body. He was convicted by ajury in 1980. He served 26,years. The Court wrote, "The commitment offense, this court has observed, is anunsuitability factor that is immutable and whose predictive value 'may be very questionable after a long period of time. ' (Scott II,
, ,
25
26 27
28
supra, 133 Cal.AppA at pp. 594-595, fn. Omitied.rWehave also noted, as has our Supreme Court, strong legal and scientific support that 'predictions of future dangerousness are
th
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 19 of 46
1
2
exceedingly unreliable,' even where the passage oftime is not a factor and the assessment is made by, an expert. Reliance on an immutable factor, without regard to or consideration of subsequent circumstances, may be unfair, run contrary to the rehabilitative goals espoused by
3 4
'5
.
.
the prison system, and result in a due process violation. A parole hearing does not ordinarily provide a prisoner a very good opportunity to show his offense was not committed 'in an especially heinous, atrocious or cruel manner,' even if such evidence exists and the prisoner is willing to run the risk his effort to make such a showing will be seen as unwillingness to accept responsibility and therefore evidence ofunsuitability." . "Our case.while resting on state due process (Cal, Const., art. 1, section 7, subd. (a)), compares favorably to cases affording. habeas corpus relief on federal due process. grounds, against parole denials for California inmates with exemplary post-offense records who had been sentenced to terms of at least 15 years to life for second degree murder. ill one, the same inmate earlier involved in our Supreme Court's decision in Rosenkrantz had offended at age 18, shooting a younger brother's friend [w~le lying in wait] who had revealed the inmate's homosexuality to the inmate's intolerant father. The inmate's 'perfect prison record' and' gains of nearly two decades included, like Elkins' act ofjeopardizing his own safety to protect a correctional officer, saving the life of a fellow inmate. The Court found due process violated
6
7
8 9 10
11
12 13
14
15 16
17
-:---'-'---18- . wllenihe fOrIDer-Bo-3i:Cl-ofPnson-Terrns aemed-parole,as-ifliad-before, oared ~oIeIy"on-tlie_. -;._. - _.- - -- - 19
gravity of the commitment offense. (Rosen1crantz'v. Marshall (C'D, Cal. 2006 444 F.Supp.2d 1063, 1065, 1070.)
. I' ;.
20
21 22 23 24 25 26 27
28
"In a second such case, former Governor Davis had reversed a BPT suitability
determination, stressing principally the gravity of the commitment offense. (Martin v. Marsh~l1 (2006) 431 F.Supp.2d 1038) After first finding no support for other grounds," the court turned to the factors surrounding and preceding the offense, which included the 26-year-old petitioner fleeing the scene ofhis fatally shooting a drug dealer acquaintance and bystander in a blaze of gunfire ata restaurant, wounding yet another bystander, and withoutseeking medical assistance for any ofhis victims. The court reasoned: 'Petitioner has surpassed his minimum sentence, and has already been found suitable for parole by two decision-making bodies ... He has been in prison for approximately 26 years and.has taken advantage of numerous
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 20 of 46
1 2
rehabilitation and enrichment programs. He has exceeded his minimum sentence by approximately six years ... The Governor's' sole reliance on the circumstance of the offense and conduct prior to the offense, constitutes a due process violation. '" "A third instructive case is Irons v. Warden of Solano (2005) 358 F.Supp.936 (Irons) (app. pending sub nom. Irons v. Carey (9th Cir. 2005) 408 F.3d 1165, No. 05-15275), where an inmate serving 17 years to life was found unsuitable for parole at his 5th hearing before the BPT. The facts of the offense, again, in many respects far worse than those before us. The . petitioner killed a fellow boarder after an argument in which the victim denied stealing from the landlords, as the landlords had claimed. The petitioner loaded a handgun, went to the victim's room, fired 12 rounds into him, said he was going to let him bleed to death and, whe~ the victim complained of the Pa4I, took out a buck knife and stabbed him twice in the back. The petitioner later borrowed a car and drove the' b8dy to an isolated coastal location where he released it into the surf. The BPThad relied exclusively on the facts of the commitment offense and the petitioner's drug use at the time. The Court Wrote: 'Important in assessing any due process violation is the fact that continuous reliance on unchanging' circumstances transforms an offense for which California law provides eligibility for parole into a de facto life imprisonment ~ithout the possibility of parole ... The circumstances of the crimes will always
3
4
5
6
7
. 8
9
10
11
12
13
14 15
16
17
19
20 21. 22
Petitioner has no hope for ever obtaining parole except that a panelin the future will arbitrarily hold that the circumstances were not thatserious or themotive was more than trivial.' ... After 15 or so years in the caldron of prison life, not exactlyan ideal therapeutic environment to say
. . . . . ....
the least, and after repeated demonstrations that despite the reco gmzed hardships ofprison, this petitioner does not posses those attributes, the predictive ability of the circumstances ofthe crime is near zero." . Finally, in Rio v. BPT Commissioners, ND No. C'OS-1483 MPH (Dec. 2006), a case involving a petitioner convicted of second degree murder even though not the actual shooter, Judge Patel wrote: "The BPT considered the circumstances of the murder and concluded that it was an carried out in a cruel and callous manner, carried out in a manner which demonstrates exceptionally callous disregard for human suffering, and was done for a trivial motive." Rio
,'. ",:: \. ..
.
.
.
.
23 24
25 26
27
28
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 21 of 46
1
.and
his crime partners Amaro and Willie went to Roberto Hernandez's apartment under the
2 3
4
pretense ofpurchasingjeweJry. During the robbery, Willie shot'Hernandez in the back ofthe head. The Judge went on to say, "There was not sufficient evidence to support the finding that the circumstances of the commitment offense tended to' show unsuitability. The BPT looked at the killing without any attentionpaid to Rio's role in that killing. The BPT' s approach fails to distinguish between the actual killer and those who may be held liable based on their role in the crime such as aiding and abetting or under a felony murder theory as it rates all of them the same on the dangerousness scale. Not only does that approach seem contrary to common sense, it also is contrary to the wording of the regulation. The regulation calls for the BPT to consider whether 'the prisoner committed the offense in an especially heinous, atrocious or cruel manner,' indicating that the focus is on the parole candidate's particular actions in the killing ... Here, Rio was present when his crime partner killed the victim. The evidence also was that Rio was there.for a robbery and the shooting ofthe victim was rather unexpected to Rio. There was no evidence that Rio was the leader ofthe criminal episode, and no evidence that Rio directed the killing or otherwise urged the killer to kill. Under the circumstances, his crime partner's execution-style killing does notprovide some evidence that Rio 'committed the offense in an especially heinous, atrocious or cruel manner.' The state may hold a person
5 6
7
8
9
10
11
12
13 14
15'
16
17
19
20
chore. The BPT is charged with determining whether a prisoner is suitable for parole, not whether he may be held liable for the killing in the first place. The evidence in the record does not support a finding that Rio committed the offense in an especially heinous, atr:0cious or cruel manner."
21
22
23
24
II II II
. I ". .' ~
i
'.
I
25
26
27
28
Case 3:07-cv-04821-WHA
Document 8-12
'.'--'
Filed 12/26/2007
Page 22 of 46
.Jplicable): .
a. Supporting facts:
..-
- --' _._- --
.~~==-=~~==~=--='-'-==--'-=~=-"=='-'=--'=-=""""""==--=='-='='-=~==~:=..;===-=:;::;..:..==-====--.;=
. b, Supporting cases, rules, or other authority:
M~·275
[Rev. January 1.1999]
PETITION FOR WRIT OF HABEAS CORPUS
Page four of
alx
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 23 of 46
1
PETITIONER'S. RIGHT
TO
HAVE
SEPARATELY
STATED
. AND
2
3
4
.SPECIFICALLY DIRECTED (SEPARATE AND DISTINCT) REASONS WHEN GIVEN A MULTI-YEAR pENIAL WAS NOT PROTECTED BY THE BPT IN VIOLATION OF IDS STATE AND FEDERAL CONSTITUTIONAL DUE PROCESS PROTECTIONS AND CONTRADICTORY OF THE LEGISLATIVE INTENT' OF PENAL CODE § 3041.5(b)(2).
1. The statement of reasons for a multi-year denial must be a separate and distinct statement that is not a mere recital ofthe same reasons used to deny parole worded slightly differently. 2. In denying Petitioner parole for a period of two (2) years, the BPT failed to Cite its reasons for a multi-year denial. ', " .-: .,
5
6
7
8 9
10
11
12
3.. The BPT's stated reason for parole denial was: "The offense was carried outin an especially: cruel and c~lous manner. That's particularly callous and was clearly carried out in a dispassionate calculated manner." . (Exhibit ~ A' p. 68) 4.' The BPT's stated reason for a multi-year denial was:
13 14
15·
16
17
NOT GIVEN.
- _..- _.--lS- .._19
20
5',- A multi~year-demaI can ocly"be applicable-whenvallcfgrounC1s-exlsttofiD:2CPetmoner-_. ----- --- - unsuitable for parole. Petitioner has adequately established, in his argument ante that the BPT's reasoning for denying parole was unsubstantiated, lacking even "some evidence" that he is CURRENTLY all Unreasonable risk to the public and was therefore arbitrary, capricious, lacked basis in fact, and/or was contrary to law.
21 22
23
Supporting cases:
"If the Legislature had intended a single statement of reasons to suffice for both the refusal to set a parole date and the decision to postpone annual review, it would not have enacted language specifically calling for a statement of reasons
011
24
'25
26
27
the
latter...Accordingly, this Court holds the Board to the Legislative requirement that its reasons for postponing a' suitability hearing be separately stated 'and specifically directed to that question." Tn re Jackson, .(1985) 39 Ca1.App.3d 464
....... ;.",
28
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 24 of 46
1
2
3
Penal Code § 3041.5(b)(2) that requires a separate and distinct statement that is not a mere recital ofthe same reasons used to deny parole worded slightly differently. Penal Code § 5076.2
5
6
7
'8
CCR § 2000(b) (48) [Good Cause]; (61) [Material Evidence]; [Relevant Evidence] CCR § 2400 et seq. California Constitution Article I §§ 7, 15 [Due Process] U.S. Constitution Amendment 14 [Due Process] In re Capistran, (2003)107 Cal.App.s" 1299
9
10
11
In. re Morrall, 102 Cal.App.d" 280
In re Rosenkrantz, 95 Cal.App.e" 358 In re Ramirez, 94 Cal.App.a" 549
13
In re Caswell, (l0/10/01) 92 Cal.App.s" 1017 In re Rodriguez, (1975) 14 C.3d 639 California v. Morales, (1975) 115 S.Ct. 1597
14 15
16 17
//
//
. . . . . __ . _._.
·-----18-···-·-·//-- - - - . - -----.---.- -- . -. -':"-;._.. __,~,_.~'c_ ..
19 20 21 .22 23·
L~
24
2S 26 27
28
I ~.
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 25 of 46
1
2
CONCLUSION
3
The Board's decision was arbitrary and capricious. The Petitioner did not receive a fair hearing, nor will he ever.
4
5
6
Petitioner submits and contends that the finding of unsuitability was arbitrary and capricious: 1). Due to the Board carrying out it's political function of adhering to a no or anti-parole policy; 2). Due to the Board's acting contrary to the intent and spirit ofPC § 3041 (a); 3). Due to basing its decisions on unsupported allegations; and
7
8
9
10
11
12
4). Due to the Board's refusal to adhere to aforementioned decisions and the controlling
authorities.
13
·14
15
Petitioner prays this Court order him released. and lor discharged, or at the very least, direct' the Board to issue a decision within ten (10) days granting parole, setting his term "uniformly" as mandated by the legislature.
16
17
---.- ---r8- -7r -.-
- -.- - --- -
--- --.- -_-'-. -- -_._---- .-- - .------.------- - ----_. - ---- ------ -._--- -- _.. - -- -- - _
i9
20
II II
21 22
23
24
25
26
.. " ,: 1: ·.1
··
.,
27
28
.1(.
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 26 of 46
1
PRAYER FOR RELIEF 1. Issue an Order to Show Cause on an expedited basis. . 2. Appoint Counsel.
2
3
4'
'3. Conduct an Evidentiary Hearing.
4. Order Petitioner's 'appearance before the Court. 5. Order Petitioner taken back before the Board for a finding of suitability within ten (10) days, or in the alternative, order Petitioner released forthwith; 6. Declaratory relief, and 7. Any other relief this Court deems fair, just and appropriate.
5
6
7
8
9
10
11
12
13 14 15
.
.
\
.. '
.. ..:_': .,
:
16
17.
---, ',-- -18'- - - '-'-. _. _ . - - -,.... --_..__._.-..- -._.. . --_. -'-
-
-
-
--- ---._,._--
_.._.- -- -
._.-
._- -
"'-"-
---------_ ..
19
20
21
22
23
24
25
26
27
28
,1"
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 27 of 46
1
PROOF OF SERVICE
2
3'
4
I declare that: I, DARRYL DAWSON, C-30679, am a resident of the State of California, County of ,
.
,
" . . . .
5
6 7
Monterey. I am over 18 years of age and I am' a party to the within action. My residence address is P.O. Box 689, Soledad, California, 93960-0689. OnMarch
;'3
, 2007 I served the foregoing writ ofhabeas corpus on the parties listed
8
9
below by placing a true copy thereof enclosed in a sealed envelope with postage fully prepaid in the United States mail at Soledad, California, addressed as follows:
10
11
12 13
14
DEPUTY ATTORNEY GENERAL DARRELL LEPKOWSKY 110 WEST A STREET, SUITE 1100 San Diego, ·CA 92186-5266
"~ ".
15 16 17
,.
There is regular delivery service by the U.S. Postal Service between the place of mailing and
·----.·----fs- 'the'places soaddressedr - ._._._-- .."-_.- - - -_.- --- --- .-' - - - -- - -- ---- -_.- --- -- -'---'.'- - --- ----- - _. 19
I declare under penalty ofperjury under the laws ofthe State of California that the foregoing is true and correct. Executed this
/3
20
21 22 23
day ofMarch, 2007, at Soledad, CalifOrni(2
..
'~~AbG
DARRYL DAWSON
24
25 26
27
28
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 28 of 46
8.-.Did';~u a~;~al fr~m the ~on~ctio..., ~e~ten~e, ~~ co~~en~? .~~Y~s·.--tr No. 1.
a.
JaS, give the following information: Name of court ("Court of Appeal"·_~~,~:~'R.~~l* ;De~t·:.2f.'~~,:n~~9J;.S9.~"):· ''':'':·:':=;lo;lj.t.;~:: ~:· .. ;' ----------------'--.:..._--... ~~ -, ~.: :: . . .~;\,::', .... :·;;t:~·;"~:'· - - - - - - - - - - - - - - - - - - ' ..... ', - -
__
.
I.~~."r~'
~
M
e.
Issues raised: (1)
_
---
'-
":'.:..I'!-'~"
-.,..
-'---
_
(2)_'
(3)~.
----,_
__.:..
_
f.
Where you re~resented by counsel on-appeal?
0
Yes.
C No.
If yes, state the attorney's name and address, If known:
9. Did you seek review in the California Supreme Court? DYes. D No. If Yes, give the following information:
a. c. c. Result: Case number or citation of opinion, ifknown: Issue raised: (1) _ _--,-(2)
--..,._ _ b. Date of decision:
_ _
----'-
-'-
....,._
_
(3)
-'--
_
10. If your petition makes a claim regarding your conviction, sentence, or commitment that you or your attorney did not make on appeal, explain why the claim was not made on appeal:
_.-
-
_ _-_._ .. -'- --..
-- _.- -_._.- ._. __ ._- ---_.-._._._.- - - ---- --.. - _ . - . _ - ; - - - - - - ..--_.- _.- -"'-""--""-"-- ----;'-:--'-. -_. 11. Administrative Review: a. If your petition concerns conditions of confinement or other claims for which there are administrative remedies, failute to exhaust administrative remedies may result in the denial of your petition, even if it is otherwise meritorious. (See in re Muszalski (1975) 52 Ca1.App.3d 500 [125 Cal. Rptr, 286].) Explain what administrative review you sought or explain why you did not seek such review:
_
b. Did you seek the highest level of administrative review available? DYes. D No. Attach documents that show you have exhausted your administrative remedies.
MC-275 [Rev January 1, 1999]
PETITION FOR w'RIT OF HABEAS CORPUS
Page five of six.
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 29 of 46
12. other than direct appeal, have y~ ..Ied~ other petitions. applications, or motion", ..· (h respect to this conviction. commitment, or issue in any court? Yes. If yes, continue with number 13. No. If no, skip "to number ·{S.
U
0
13. a. (1) Name of court: _.
....:...-
-..:..
~-----------
(2) Nature of prcceedlnq (for .example, "habeas corpus petition"): (3) Issues raised: (a)
(b)
(4) Result (Attach order or explain why unavailable): (5) Date of decision: b. (1) Name of court: :.... --'--
-'-
_
-:-_,.-_
_
(2) Nature of proceeding:
(3) Issues raised: (a)
(b) _,.--:...--~____'
_
(4) Result (Attach order or explain why unavailable):
(5) Dateof decision:
c. For additional prior petitions, applications, or motions, provide the same information on a separate page.
14. If any of the courts listed in number 13 held a hearing, state name of court, date of hearing, nature of hsarlnq, and result:
15. Explain any delay in the discovery of the claimed gro.unds for relief and in raising the claims in this petition. (See In re Swain (1949) __ . __3H~aJ.2d_3QP.~.Q4..L. -_._-- - .. - ---- ---_._-- - - - - - --- -- - - ----- ----- ------- --. - - - ..
16. Are you presently represented by counsel?
0
Yes.
o
No. If yes, state the attorney's name and address. if known:
17. Do you have any petition, appeai, or other matter pending in any court?
DYes.
o
No.
If yes, explain:
18. If this petition might lawfully have been made to a lower court, state the circumstances justifying an application to this court:
I, the undersigned, say: I am the petitioner. in this action. I declare under penalty of perjury under the laws af the State of 9alifornia that the foregoing allegations and statements are true and correct, except as to matters that are stated on my information and belief, and as to those matters, I believe them to be true.
PETIl fON FOR WRII OF HABEAS CORPUS
Page six of six
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 30 of 46
-
_.._..
_,
-_. -._-' ._.. _--
'-'
-- _. - _ _--_ ·.. ....:.... ..
-
- - ----
_..
_.
-
--_._- -
-
-
-
-.-;-._
..
- - - --_.--._- _ - - - - -- _._--....
-
-
._..
--_.
_.. -
I
<,
EXHIBIT A . (Hearing Transcript. 2006)
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 31 of 46
SUBSEQUENT PAROLE CONSIDERATION STATE OF CALIFORNIA BOARD OF PAROLE HEARINGS
In the matter of the Life Term Parole Consideration Hearing of: DARRYL DAWSON
CDC Number C-30679
CORRECTIONAL TRAINING FACILITY SOLEDAD,
.~ALIFORNIA
OCTOBER 5,
2006
1:50 P.M.
PANEL PRESENT: Linda Shelton, Presiding Commiss~oner Jeff Sellwood, Deputy Commissioner
- - - -. - ---.--.----- --- -
--oTHERS--PRESENT-:-'-~-
--- - ----
Darryl Dawson, Inmate Terri Rutledge, Attorney for Inmate Bryant Bushling, Deputy District Attorney CORRECTIONAL OFFICERS UNIDENTIFIED
CORRECTIONS TO THE· DECISION HAVE BEEN MADE No Yes See Review of Hearing Transcript Memorandum
Toni Anderson
Hous'e of Scrib-es
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 32 of 46
ii
INDEX
PAGE proceedings Case Factors. Pre-Commitment Factors. Post-Commitment Factors Parole Plans. Recess. Decision. Adj'ournment Transcriber Certif,ication . Closi?g Statements. 1
6
10
22
40
59
66
67 78
.
79
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 33 of 46
1
PRO C E E DIN G S DEPUTY COMMISSIONER SELLWOOD: record. PRESIDING COMMISSIONER SHELTON: Good afternoon, everyone. All right.' Welre on the
2
3
4
5 6 7 8 9 10 11 12 13 14 l5
We are here for the first
Subsequent Parole Consideration Hearing for Darryl Dawson, D-A-W-S-O-N, CDC Number C-30679. is October 5 t h , 2006. Today's date And we
The time is 1:50 p.m.
are located at CTF, Soledad.
Mr. Dawson was received
on May 22~, 1981 committed from Los Angeles County. His life term began September 30 t h , 1987, and his minimum eligible pa ro'l,e date is May 31st , 20-04. Mr.
Dawson, uh, was committed for Case Number A-357550, charging in count one violation P.C., Murder in the First Degree with a 12022.5, Armed with a Firearm, as
~
.-.---- -.._-. -- - 1'6--- 'wel-}' -as'-1z'-count-s- 'of'-robbery "':"'each -w i-t.h- a--·1-:20-2·2-. 17 18· 19 .20 21 22 23 24 25 "26 27 P.C., Use of a Firearm.
--'--
_~.-
----- ...- - -'-'-
Mr. Dawson received a term of Mr. Dawson, this
25 plus 13 equally 38 to life.
heari~g
is being tape recorded, so we are going to go I know this is your first Initial a little bit differ.ent. I mean this
around the room. Hearing, so it I
S
is your first Subsequent Hearing which is different than your Ln.i t La L Hearing, not a lot but a little. So, anyway if you have questions feel free to ask as we go ,. We'll start with introductions, first name,
r
:'last name, spe'll our Laat : name, and when we get t.o you add your CDC number, please. My name is 'Linda
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 34 of 46
2
1 2 3
4
Shelton, S-H-E-L-T-O-N,' Commissioner. DEPUTY COMMISSIONER SELLWOOD: Jeff Sellwood,' S-E-L-L-W-O-O-D r Deputy Commissioner. DEPUTY DISTRICT ATTORNEY BUSHLING: Bryant
~o~
5 6
7
Bushling, B-U-S-H-L-I-N-G, representing the Angeles County District Attorneyr s Office. ATTORNEY 'RUTLEDGE: Terri E. Rutledge,
8
9
R-U-T-L-E-D-G-E, attorney for Mr. Dawson. 'INMA+E DAWSON:
C-30679.
Darryl Dawson, D-A-W-S-O-N,
10
11 12
13
PRESIDING COMMISSIONER SHELTON:
Thank you.
And
for the record we have 'two officers in the room for security purposes who will ,not be participating in the hearing. All right r let's start with accommodation Uh r you signed BPT Form 1073, on
14 15
for disabilities.
-- -1:6-- -, January --19-,-2'0'0 6i·--indi-cat-ing-- -you- -did-not -ae ed- a:n-y- he-lp-, '- ~ - - -.- --17
with anything or any accommodation, uhr for disabilities., I would note for the
\
18
19 20
reco~d
that you
are wearing glasses. INMATE DAWSON:
Are those prescription glasses? Yes. 'And do they
21 22
23
PRESIDING COMMISSIONER SHELTON: work for your eyes, sir? INMATE DAWSON: Yes.
24
PRESIDING COMMISSIONER SHELTON:
OkaYr go ahead
25
and sign on ,that.' 'What you are signing there is what It I s 'Exhibit, TWOj"
""26 'Ybur attorney went"bverwith you. 27
and that would be, uh, an additional discussion of
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 35 of 46
3
1 2 3
4
accommodation for dis,abilities as well as a p.earing information sheet for you. wearing glasses. So, we note that you are
Do you have - is your hearing okay? Yes., ma I am. Okay, and
INMATE DAWSON:
5
PRESIDING COMMISSIONER SHELTON: Thank you.
6' mobility? 7 8 9 10 11
12
You can walk, stand, sit for
periods of time and be comfortable? INMATE DAWSON:
Ye~,
ma'am. Are you on any
. PRESIDING COMMISSIONER SHELTON: medication? INMATE DAWSON: No.
PRESIDING COMMISSIONER SHELTON:
~ounds
Okay.
Then it
13 .14 15
-- .. -_. - 16"-' -
to me like you're comfortable to go. forward Uh, counsel, would you concur? Yes, mal am..
with this hearing.
ATTORNEY RUTLEDGE:
~
- - .-
-PRESIDJ:NG-COMMIBSIONER-SHELTON·: - -okay;..-thank-·- - - - - - - - - - -.- All right. Sir, you have certain rights. You
17 18 19 20 21 22
23
24
you.
have the right to a timely notice of this hearing, the right to review your C-File. And the·record indicates And
you did review your C-File on January 28 t h l 2006. you have the right to present relevant documents. Counsell have your client's rights ATTORNEY RUTLEDGE:
~een
met thus far?
Yes, ma'am. Mr. Dawson, you
PRESIDING COMMISSIONER SHELTON:
25
also have an additional right to be heard by an - impartial panel .. And' today you panel w'oiild"be' -- ......
"26
27
Commissioner Sellwood and myself, is that all right
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 36 of 46
4
1 2 3 4 5
6
with you? INMATE DAWSON: Yes. Thank you. I
PRESIDING COMMISSIONER SHELTON:
also want to let you know 'that on May - in Maya couple of years ago the rules changed with regards to appeal rights. And r uhr if you need
add~tional
7 8 9 10 11 12 13. 14 15 - - _.- - ..._. ---
information in that area feel free to ask your 'attorney or contact the r uhr prison law library, okay. Now r sir, you are not required to admit to or'discuss your offense, however this panel does accept as true the findings of the court. means to you? INMATE DAWSON: That I shouldn't dispute the Can you tell me what that
facts of my - pf the record. PRESIDING COMMISSIONER SHELTON: Kinda r it means
-16---we.Lr-e~·n6t·gG:LFlg -to-retry-
you-r--case·.--··-AnGl. ·-we- aJ:-e--g.ei-rig-· -- --- - - - ---.- .. Uh , but it
17 18 19 20 21 22 23 24 25
. ".
to go by what t.he , uh , says happened..
doesn't mean that we I reo not interested 'in what you. have to say as well, that I s very important to us, okay. INMATE DAWSON: Yes r ma'am. Thank you. Uh,
PRESIDING COMMISSIONER' SHELTON:
Commissioner, do we have any confidential information? DEPUTY COMMISSIONER SELLWOOD: we will not use it today . PRESIDING COMMISSIONER SHELTON: ..·T-errif-i-c·:..·.. ·I t ve I'm not We do have some,
. ·2·6: .- . -' ....
27
already passed the hearing checklist around.
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 37 of 46
5
1 2 3 4 5
6
sure where it is.
Okay, thank you.
Uh, both
attorneys have initialed and. signed indicating that they have all the necessary documents to move forward so we will do t.hat . All. right. Ms. Rutledge, are
there any additional documents to be submitted? ATTORNEY RUTLEDGE: Not at this· time, ma'am. And I did get
7
PRESIDING COMMISSIONER SHELTON:
8 9 10
some here a little bit ago, and these would be, uh , support letters that we'll take into consideration when we go through your parole plans. Are there any
11 .·preliminary objections?
12
13
ATTORNEY RUTLEDGE:
No .
~HELTON:
PRESIDING COMMISSIONER
Will your
14
15
client be speaking with us today? ATTORNEY RUTLEDGE: Not on the commitment
.-~-
_._- - --- .- -16···· -o-ff·ense--buG -a-ll -other--issues
.__..- ._.. _ .. - - _.Okay. Do you Would
17
18 19· 20 21 22
23
PRESIDING COMMISSIONER SHELTON: you please raise your right hand, sir?
solemnly swear. or affirm that the testimony you give at this ·hearing will be the truth, the whole truth and nothing .but; the truth? INMATE DAWSON: ·Yes. And
.jus~
.. PRESIDING COMMISSIONER SHELTON:
to let ..
24 25
you know, Mr. Dawson, you don't need to lean forward every time you
spea~
into the mike.
You're going to
h·~-··-·26··"'·get· di·zzy
doing· ·this·;·-·· So, -you can, -just···be ·comfortable
f~om
27
and talk where you
and i t ' l l pick it up fine.
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 38 of 46
6
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
Okay.
I am going to go to, uh, the summary of the
offense as indicated in the April 2003 Board Report which was, brought forward. We are going to Uh, is that okay
w~th
incorporate that by reference. you, Mr. Bushl ing?
DEPUTY DISTRICT ATTORNEY BUSHLING: PRESIDING COMMISSIONER SHELTON: Rutledge? ATTORNEY RUTLEDGE: Yes.
Yes.
And Ms.
PRESIDING COMMISSIONER SHELTON:
Since, .uh , Mr:
Dawson will not be speaking to that, then consider that done. I will incorporate by reference the Board
Report dated April 2003, and that is pages one, two, and three, that information comes' from the probation officer's report pages six through eight. The,
-,:_,---, ·--16·-'-Appellat·e- Geur-t-Dec-:'isi8n-..da-tea--Apr-il.-25!E ..!-83·,.. ··page.s--17 18 19 20 21 22 23 24 25
.
~
five through six, page 13, and pages 15 through 18. with that, Mr. Dawson, we're going to go to your prior record, and I'll need you to help me out with that so I can make sure - might as well.keep this up here that I have accurate information, okay. First ,of all,
this indicates that you have no juvenile record. INMATE DAWSON: Correct. Is that true?
PRESIDING COMMISSIONER SHELTON: INMATE DAWSON: Yes .
. t·; .
.....,., ...... , 2,6, 27
PRESIDING COMMISSIONER S·HELTON: trouble, huh?
Never, -got: ii'l.'--·
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 39 of 46
7
1
2
INMATE DAWSON:
Right. Good. ·Are you
PRESIDING COMMISSIONER SHELTON: nervous? INMATE DAWSON:' Yes. PRESIDING COMMISSIONER SHELTON: relax.
3 4 5 6 7 S 9 10 11 12 ,13 14 15
Okay, try to
We're not here to beat you up, okay. INMATE DAWSON: Okay. This is your
PRESIDING COMMISSIONER SHELTON:
hearing, and I want you to feel free to contribute as much to it as you would 1 ike to. INMATE DAWSON: Okay. Okay. With
PRESIDING COMMISSIONER SHELTON:
regards to' your adult prior record we have that, uh , you had three contacts with law· enforcement before this commitment offense.
~
--- - --- - - -1-6-- ... _- --- - ----INMATE- .DAWSON:__ Co'rze.cti.,
_ .First one was
17 18 19 20 21
22
23
24
PRESIDING COMMISSIONER SHE.LTON:
in June of '74, you were arrested by Lynwood Police for Assault with a Deadly Weapon, with the D.A. rej ected due to a lack -of corpus. INMATE DAWSON: wrong person. PRESIDING' COMMISSIONER SHELTON: wrong purpose - person? INMATE DAWSON: Yes, I was at a party at my, my You were the Yeah, they, uh, arrested the
25
..·.
·.·.I,~
I
'26 "
s-ister's cousin's" house ','", And;-, uh,·' appanently he was .. '- . having a dispute with his nei$hbor. And she threw a
27
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 40 of 46
8
1
brick and hit my sister in the mouth.
I picked up the
2
3
4
brick and threw it at the house, it broke a window. So, they arrested me for Assault with a Deadly Weapon, but they should have arrested her for hitting my sister with the brick, that I s what happened. PRESIDING COMMISSIONER SHELTON:
o~her
5 6
7
So./ did that
person get arrested? INMATE DAWSON: No. Hmm.
I
l
8 9
PRESIDING COMMISSIONER SHELTON: appreciate the extra information. well you. were
arre~ted
10
11
It said, uh
as
in July of 175 by the Los
12
13
Angeles Sheriff's Department for possession of marij uaria . INMATE DAWSON: Correct. Tell me about .__ .__. ._ .. .. . _
14 15
.....- ··_·16--·
···-~·hat
PRESIDING COMMISSIONER. SHELTON: -one··. '--'-''- '-' ... _ -. _.-- -_. .. INMATE DAWSON: ...__ .._ ,_._ . __ . I was, uh
I l
17 18 19 20 21 22 23 24 25
~·26·
(indiscernible) and so I knew where he
my cousin wanted some marijuana
was and picked it up - we picked it up, and the Sheriff/s Department stopped us and they arrested me. PRESIDING COMMISSIONER SHELTON: cousin. INMATE DAWSON: Not my cousin. Because And not your
PRESIDING COMMISSIONER SHELTON: INMATE DAWSON: ....
He was the driver. Oh, and You ".had.
PRESIDING·-COMM·I·SSIONER SHELT·GN:
27
the' marijuana.
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 41 of 46
9
1
INMATE DAWSON:
No, he had it. Oh.
2
3
PRESIDING COMMISSIONER SHELTON: INMATE DAWSON:
a~rested
'On his possession, but they
4
'5
me for moving in the car. Okay. And
PRESIDING COMMISSIONER SHELTON:
6 7 8
9
then, let's see you were arrested September '79, by Los Angeles Sheriff's for Driving Under the Influence,
. .
and you pled guilty. to' this. INMATE DAWSON: Yes. And let's see,
10 11 12 13 14 15
PRESIDING COMMISSIONER SHELTON:
you were placed on Summary Probation, which basically means not supervised probation, court probation for one year. And you had to attend driving school and You failed to
];lay'a three hundred dollar fine.
appear in. court on 3/14/80 a·fter receiving an _ ..__ ._
. - -16- _. .ext.ens i.onv.t o .pay.i t.he .f.i.ne, '-so- a -war.rant-was-- is:sued.- _. 17 18
19
Evidently you had been in county jail. INMATE DAWSON: Correct. rts'ays for
PRESIDING COMMISSIONER SHELTON:'
20 21
22
"issues related to the commitment offense"., so all this was happening about the same time. INMATE DAWSON: Yes, ma'am. And then you You were given
23 24 25 26
27
PRESIDING COMMISSIONER SHELTON: pled guilty to violation of. probation.
credit'for 10 days, a bench warrant was recalled. What ·were ·you,··under.}·the 'influence o·f, sir?" INMATE DAWSON: Alcohol.
.:
,
,
; ..
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 42 of 46
10
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
·PRESIDING COMMISSIONER SHELTON: when the commitment offense. 'INMATE DAWSON:
Then that's
Sometime after that. Okay. Did I
PRESIDING COMMISSIONER SHELTON:
leave anything out, or is' that accurate information for your prior record? INMATE DAWSON: Yes, ma'am. Okay. You can
PRESIDING COMMISSIONER SHELTON: smile now, there you go. history. INMATE DAWSON: Fairly well. I
Let I s talk about your social
PRESIDING COMMISSIONER SHELTON:
Let's - let me
go through what we have here and I'l~ take some notes and make sure we have all accurate information, okay. INMATE DAWSON: Okay.
-- -16·_· .:'._.- - - ··PRES-IDING--COMMISSIONER --SHELT.ON: .._Rirst_,_ 1.e.t Ls __ . _.__ .__ .
17 18 19 20 21 22 23 24 25 26 27
verify that you were born on 10/20/55. INMATE DAWSON: ' Yes. PRESIDING. COMMISSIONER SHELTON: INMATE DAWSON: Yes. And you're the In Los Angeles.
PRESIDING COMMISSIONER SHELTON: third of three children. INMATE DAWSON: Correct:
PRESIDING COMMISSIONER SHELTON:
And your dad's
name was Leon, and your mom's was Lorraine. -: INMATE' DAWSON:" Ye e , . Uh, you told,
~
. · · · .' .'
· I ;~;. / -
:-~
.
f' , .
PRESIDING COMMISSIONER SHELTON:
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 43 of 46
11
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
uh, the probation officer doing your report that, uh, you were raised in a united home with two sisters, is that true? INMATE DAWSON: Yes, ma'am. So, tell me
PRESIDING COMMISSIONER SHELTON:
about growing up, say between the time you were born which I'm sure you remember that - uh, to when you say you first started high school, how was family life? You had two sisters. INMATE DAWSON: comfortable. PRESIDING COMMISSIONER'SHELTON: do f o rva living? INMATE DAWSON: Company. FRESIDING.-·COMMISSIONER-SHELTON.: . __You...can.i Look __at..; No, it I s okay. . . _ He worked at the Uni-Royal Tire What's your dad Stable, disciplined,
---._- ·--J.6·_· .. _ ... _. ---
17 18 19 20 21 22 23 24 25 26· 27
me when you talk to me, it's okay.
You are so nervous, just take a deep breath, okay. Dad
wor~ed
.for Uni-Royal Tire Company. Yes. Okay. And what
INMATE DAWSON:
PRESIDING COMMISSIONER SHELTON: did mom do?
INMATE DAWSON: :. She worked there, too. PRESIDING COMMISSIONER SHELTON: good. Oh, well that's
And so you went to grammar. school. . Yes. Junior high . ...,....:.". '-.:
,,-~.
. ",.' ·INMA'l'·E .. -DAWSON:
-,.. -."
PRESIDING COMMISSIONER SHELTON:
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 44 of 46
12
1
school. INMATE DAWSON: Yes. And what about
2
3 4 5 6 7
8
PRESIDING COMM:ISSIONER SHELTON: high school? INMATE DAWSON: Yes.
PRESIDING COMM:ISSIONER SHELTON: high school diploma? INMATE DAWSON: . Uh, I got aGED.
Did you get a
I
didn't
9 10 11 12 13 14 15
graduate because I was, uh, I think I was 102 credits, 'uh, from graduating. PRESIDING COMMISSIONER SHELTON: INMATE DAWSON: A 102?
Yes, somew.here around there. Don't you only
PRESIDING COMMISSIONER SHELTON: need 124 to graduate? INMATE DAWSON:
Well, I don't - back in '74, I . . . _
-1.6.. - .t.h.i.nk.ci.t.; was _mor.e, _L' rn.inot; _for ..Sllre ...._ ..._ .. 17 18 19 20 21 22 23 24 25
." 0:.
PRESIDING COMM:ISSIONER SHELTON: you got your GED. INMATE DAWSON: something
th~t
Oh, okay, but
It's hard for me to remember
happened -Yeah, well .
PRESIDING COMMISSIONER SHELTON: that's okay. You got your GED. Yes,' ma'am.
INMATE DAWSON:
PRESIDING COMM:ISSIONER SHELTON:
Did you
g~t
your GED inc.arcerated or out on the streets? :.....:.. INMATE ,DAWSON: Yes, I got it at BBT. Okay, good.
26 27
PRESIDING COMM:ISSIONER SHELTON:
Case 3:07-cv-04821-WHA
Document 8-12
Filed 12/26/2007
Page 45 of 46
13
1 2'
3
So, you were living with your folks at the time of your arrest? INMATE DAWSON: Yes, also with a girlfriend. So, you're back
4
5
PRESIDING COMMISSIONER SHELTON: Sind forth kinda? INMATE DAWSON: Yes.
6
7
S
9
PRESIDING COMMISSIONER SHELTON: INMATE DAWSON:
Okay.
I always went home to do stuff
from my father and my'mother, cut the grass, take the. trash out, anything that my father couldn't do because he hurt his back. PRESIDING COMMISSIONER SHELTON: Oh, very good.
10 11 12 . 13
14
·It says here you joined the National Guard in October of '75. INMATE DAWSON:
i-
15
Yes/ ma'am.
And that's one of
- - - - - - - -- "'·1-6- -- my-higgest md stiake s
I--shou-ld-have,-uh,- I -should-have.,- - --- _..'.-
17
uh PRESIDING COMMISSIONER SHELTON: INMATE DAWSON: Stayed there?
18 19 20
21
Should have stayed, I should
have went in for regular Army when I had the. chance. PRESIDING COMMISSIONER SHELTON: It says you
22 2.3 24' 25
..........
returned from basic training in March of /76, but you failed to attend meetings and you were consistently absent without leave. INMATE DAWSON: Yeah, when I came back to
"26,·"'..·Ca}·i·fornia, uh , empd cyment.-was kind of hard.to·get· 'aE:--" , ,.
27
the time.
So, I decided to move to San Antonio/ Texas
Case 3:07-cv-04821-WHA
Document 8-12
14
Filed 12/26/2007
Page 46 of 46
1
with my sister.
And even though I should have learned
2 3
4
the bus routes but I didn't, and they give me an honorable discharge for failure
~o
report. I know it says
PRESIDING COMMIS$IONER SHELTON:
5 6
7
you did get an honorable di
United States Free Forms
Canada Free Forms
United Kingdom Free Forms
Australia Free Forms