ECC NEWSLETTER #6 MAY 2013 JUSTICE FOR ALL Page-1 HELPING EVERYONE REGARDLESS ECC, 532 N. MAGNOLIA AVE. #333, ANAHEIM, CA 92801 $ means these court orders are available to purchase for U.S. currency or stamps. See last page for details. LIFER SCHOOL 2013 BERKELEY LAW SCHOOL I (Keith Chandler) attended the Bay Area Lifer School on April 13 th . There were many friendly faces in the crowd, and it was especially good to see John Dannenberg. Presenters included Keith Wattley, Jennifer Shaffer (Executive Officer) and Howard Mosley (Chief Counsel) from the BPH, along with former three strikers, lifers, and Vanessa Nelson from LSA. For me the highlights were seeing old lifer friend Noel Valdivia and his family together, and the presentation by Justice Anthony Kline from the First District Court of Appeal. As many of you will recall, Justice Kline issued the concurring and dissenting opinion in In re Morganti (2012) 204 Cal.App.4 th 904. Morganti argued that there was a distinction between the statutory right to uniformity in sentence and the constitutional right to proportionality of sentence. As Justice Kline noted, because the board can “defer the fixing of the ‘base term’ until after a prisoner is found suitable for release—on the basis of the public-safety provisions of section 3041, subdivision (b), which are unrelated to and potentially conflict with the principle of proportionality—Dannenberg heightens judicial responsibility to ensure that “the overriding statutory concern for public safety,” which “trumps” the statutory interest in uniform sentences ( Dannenberg, … 34 Cal.4th at p. 1084), is not also allowed to ‘trump’ prisoners ‘constitutional right to sentences proportionate to their offenses.’ By relying on Rodriguez, Dannenberg implicitly acknowledges the judicial responsibility to scrutinize Board practices that are allegedly inadequate to safeguard the constitutional rights of prisoners and to craft such remedies as may be needed to ensure against the impositi on of disproportionate terms.” Justice Kline’s presentation noted how, in his view, the board was doing today exactly what they were prohibited from doing in In re Rodriguez (1975) 14 Cal.3 rd 639. Talk about an informative discussion! THREE STRIKES SUMMIT –STANFORD UNIVERSITY LAW SCHOOL On May 2 nd just released Three Striker activist Eugene Dey and I (Keith Chandler) attended Stanford’s Three Strikes Summit. This is a link to the amazing story Eugene wrote for the San Francisco Bay Guardian on May 14 th called Changing the Metaphor. http://dr.www.sfbg.com/2013/05/14/changing-metaphor. To say that the trip was amazing would be an understatement. Eugene and I left a day early, staying in an ocean-view room in Pacifica and having a nice diner. My welcome home gift to a great friend. Eugene dove into the Ocean for time since his release and was pumped for Stanford the next day, as was I. For me it was kind of a victory lap, as I had not seen a few of the primary players from Prop. 36 since the election. For Eugene it was a first chance to get introduced to some of the more accomplished reform minded leaders of our era. Beyond the amazing Stanford Law Professors David Mills, Michael Romano, 3X-law clinic Attorneys Susan Champion and Emily Galvin, as well as Supreme Court Justice and Goodwin Liu; Sherrilyn Iffil, President and Director-Counsel of the NAACP Legal Defense and Educational Fund; Attorney General Kamala Harris; San Francisco District Attorney George Gascon; Los Angeles Superior Court Judge William Ryan (the Judge hearing almost all 3X recall petitions in L.A.), and two of the foremost Criminal Justice experts in America: Stanford Professors Joan Petersilia and Debbie Mukamal (among so many others we spent the day with). Topics covered included re- entry concerns released three strikers face along with current court interpretations of the new law and ideas for defense attorneys. Also discussed was direct evidence of how the law is actually being applied in many counties. It is the Wild West out here still my friends! We do not have clear Court of Appeal opinions on problem areas like is a person in simple possession of a weapon “armed” and thereby excluded under Prop. 36, or whether the entire re-sentencing process violates equal protection, or Apprendi v New Jersey (2000) 530 U.S. 566 (general right to jury trial on disputed factual issues). Justice varies depending on county (although not as bad as it was pre-Prop. 36 in my view). The presentation by Placer County Superior Court Judge Richard Couzens (ret.) and San Mateo County District Attorney Steve Wagestaffe was fascinating. As frank exchanges occurred between the audience (mostly public defenders and private attorneys) Continued next page
Transcript
ECC NEWSLETTER #6 MAY 2013
JUSTICE FOR ALL
Page-1
HELPING EVERYONE REGARDLESS ECC, 532 N. MAGNOLIA AVE. #333, ANAHEIM, CA 92801
$ means these court orders are available to purchase for U.S. currency or stamps. See last page for details.
LIFER SCHOOL 2013 BERKELEY LAW SCHOOL I (Keith Chandler) attended the Bay Area Lifer School on April 13
th. There were many friendly faces in the
crowd, and it was especially good to see John Dannenberg. Presenters included Keith Wattley, Jennifer Shaffer
(Executive Officer) and Howard Mosley (Chief Counsel) from the BPH, along with former three strikers, lifers,
and Vanessa Nelson from LSA. For me the highlights were seeing old lifer friend Noel Valdivia and his family
together, and the presentation by Justice Anthony Kline from the First District Court of Appeal. As many of
you will recall, Justice Kline issued the concurring and dissenting opinion in In re Morganti (2012) 204
Cal.App.4th
904. Morganti argued that there was a distinction between the statutory right to uniformity in
sentence and the constitutional right to proportionality of sentence. As Justice Kline noted, because the board
can “defer the fixing of the ‘base term’ until after a prisoner is found suitable for release—on the basis of the
public-safety provisions of section 3041, subdivision (b), which are unrelated to and potentially conflict with
the principle of proportionality—Dannenberg heightens judicial responsibility to ensure that “the overriding
statutory concern for public safety,” which “trumps” the statutory interest in uniform sentences (Dannenberg, …
34 Cal.4th at p. 1084), is not also allowed to ‘trump’ prisoners ‘constitutional right to sentences proportionate to
their offenses.’ By relying on Rodriguez, Dannenberg implicitly acknowledges the judicial responsibility to
scrutinize Board practices that are allegedly inadequate to safeguard the constitutional rights of prisoners and to
craft such remedies as may be needed to ensure against the imposition of disproportionate terms.” Justice
Kline’s presentation noted how, in his view, the board was doing today exactly what they were prohibited from
doing in In re Rodriguez (1975) 14 Cal.3rd
639. Talk about an informative discussion!
THREE STRIKES SUMMIT –STANFORD UNIVERSITY LAW SCHOOL On May 2
nd just released Three Striker activist Eugene Dey and I (Keith Chandler) attended Stanford’s Three
Strikes Summit. This is a link to the amazing story Eugene wrote for the San Francisco Bay Guardian on May
14th
called Changing the Metaphor. http://dr.www.sfbg.com/2013/05/14/changing-metaphor. To say that the
trip was amazing would be an understatement. Eugene and I left a day early, staying in an ocean-view room in
Pacifica and having a nice diner. My welcome home gift to a great friend. Eugene dove into the Ocean for time
since his release and was pumped for Stanford the next day, as was I. For me it was kind of a victory lap, as I
had not seen a few of the primary players from Prop. 36 since the election. For Eugene it was a first chance to
get introduced to some of the more accomplished reform minded leaders of our era. Beyond the amazing
Stanford Law Professors David Mills, Michael Romano, 3X-law clinic Attorneys Susan Champion and Emily
Galvin, as well as Supreme Court Justice and Goodwin Liu; Sherrilyn Iffil, President and Director-Counsel of
the NAACP Legal Defense and Educational Fund; Attorney General Kamala Harris; San Francisco District
Attorney George Gascon; Los Angeles Superior Court Judge William Ryan (the Judge hearing almost all 3X
recall petitions in L.A.), and two of the foremost Criminal Justice experts in America: Stanford Professors Joan
Petersilia and Debbie Mukamal (among so many others we spent the day with). Topics covered included re-
entry concerns released three strikers face along with current court interpretations of the new law and ideas for
defense attorneys. Also discussed was direct evidence of how the law is actually being applied in many
counties. It is the Wild West out here still my friends! We do not have clear Court of Appeal opinions on
problem areas like is a person in simple possession of a weapon “armed” and thereby excluded under Prop. 36,
or whether the entire re-sentencing process violates equal protection, or Apprendi v New Jersey (2000) 530 U.S.
566 (general right to jury trial on disputed factual issues). Justice varies depending on county (although not as
bad as it was pre-Prop. 36 in my view). The presentation by Placer County Superior Court Judge Richard
Couzens (ret.) and San Mateo County District Attorney Steve Wagestaffe was fascinating. As frank exchanges
occurred between the audience (mostly public defenders and private attorneys) Continued next page
2285 for use of a firearm. He contends these term enhancements were improper because the superior court struck the
correlative firearm sentencing enhancement allegations from the complaint. Petitioner also contends the term of
imprisonment fixed by the Board violates his plea agreement, in which he gave up trial and appellate rights for the
promise of concurrent sentencing. The court of appeal found “the Board's regulations do not violate the separation of
powers doctrine, nor do they compromise petitioner's plea bargain.” (Yikes.) In 1995, a jury convicted petitioner of 21
criminal charges related to these events, including kidnapping in commission of carjacking, kidnapping for robbery, three
counts of carjacking, attempted carjacking, and counts for burglary, robbery, use and possession of a deadly weapon, and
evading a peace officer. The jury also found petitioner used a firearm while committing each crime. Following the guilty
verdict, a separate jury trial began on petitioner's insanity defense. When the jury deadlocked, petitioner and the
prosecutor reached a negotiated disposition. (Continued Next Page)
MARC ERIC NORTON ATTORNEY AT LAW
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● Practice Exclusively Limited to Parole Hearing and Related Matters; Including Petitions for Writ of Habeas Corpus on Board Denials and/or Governor Reversals of Parole Grants/Petition to Recall Sentence 3-Strikes
~~~~ --“The Board’s psychologist rated me as Moderate/High Risk for violent recidivism, but Marc tore that report apart piece by piece and got me a parole date on November 8, 2012. Marc is the best lawyer I’ve ever seen.” Glenn Bailey, B-47535
--“Marc fought for me like I paid him a half million dollars!” Edwin “Chief” Whitespeare, CMF (R.I.P.)
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PO Box 162 Zamora CA 95698 phone: 530.669.7999 -- collect calls gladly accepted (please be patient)
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SINCE THE ADVENT OF $In re Shaputis II (2011)
53 Cal.4th
192, THERE ARE AT LEAST 40-MUST
KNOW CASES LISTED BELOW. STAY IN THE
GAME BY KNOWING ALL THE CASES.
$In re Emilio Sanchez 4-30-12
$In re Vincent Motley 4-30-12
$In re Harold Hawks 5-2-12
$In re Gary Eccher 5-10-12
$In re Cole Bienek 5-16-12
$In re James Hunter 5-18-12
$In re David Peaslee 6-22-12
$In re Alex Tapia 6-25-12
$In re James Rovida 6-29-12
$In re Johnny Lira 6-29-12
$In re Michael Adamar 7-2-12
$In re Frederick Davidson 7-20-12
$In re John Batie 7-20-12
$In re Mark Ouellette 7-23-12
$In re James Mackey 7-31-12
$In re Brian Montgomery 8-2-12
$In re Manolo Tolentino 8-6-12
$In re Saterial Thomas 8-13-12
$In re Harjot Takhar 8-28-12
$In re Arcadio Acuna 8-30-12
$In re Adam Sanchez 8-31-12
$In re George White 9-6-12
$In re Denise Shigemura 9-27-12
$In re Roger Sundberg 10-12-12
$In re James Grisso 10-23-12
$In re Donnell Jameison 10-25-12
$In re Steven C. Martinez 10-26-12
$In re Erika Schomberg 10-31-12
$In re Gilbert Coronel 11-6-12
$In re Hall 11-28-12
$In re Denham 12-6-12
$In re Ferguson 12-19-12
$Warden v. Sup.Ct. & Carpenter 12-20-12
$In re Gamez 12-21-12
$In re Stevenson 12-21-12
$In re Martin 3-1-13
$In re Vicks 3-4-13
$In re Gray 3-28-13
$In re Stoneroad 4-18-13
$In re Lizarraga 4-23-13
(Martin Continued) Petitioner would drop his insanity
defense, change his plea to guilty and forfeit his appellate
rights. The prosecutor would ask the court to dismiss the
weapon enhancements on the two kidnapping counts and
run sentences on all counts concurrently. The express
terms of the plea agreement did not address the manner in
which the Board would ultimately calculate petitioner's
term of imprisonment. (THE MORAL OF THE
STORY.) At sentencing the court dismissed the two
firearm enhancements on the kidnapping counts. It then,
for kidnapping in commission of carjacking, imposed an
indeterminate sentence of life with possibility of parole,
and stayed, under Penal Code section 654, a second
indeterminate sentence of life with possibility of parole
for kidnapping for robbery. The longest determinate
sentence the court imposed was eight years for first
degree robbery—a four-year base term, plus a four-year
firearm enhancement. The court ordered all determinate
sentences to run concurrently with each other and with the
life sentence, leaving petitioner with, essentially, a life
sentence running concurrently with an eight-year
determinate sentence. In 2009 the Board found petitioner
suitable for parole. After miscalculating his sentence by
using the wrong regulations, and by court order, the
Board recalculated petitioner's term of imprisonment and
release date under the applicable regulations. The Board
did so in 2011 by applying the regulations at sections
2280-2292, generally applicable to life crimes. The
Board again selected a 12-year base term (citing § 2282,
subd. (c)) and added a two-year firearm enhancement
(citing § 2285). It then—stating the court had imposed 53
years (not eight years) of concurrent sentences for the
nonlife crimes—added consecutive enhancements for the
nonlife crimes. These enhancements included an eight-
year term for first degree robbery (including the weapon
enhancement), plus one-third of the terms the court had
set on the non-stayed, nonlife crimes, treating them as
subordinate offenses to the first degree robbery (citing §
2286). The Board also added six months for each of
petitioner's two prior felonies (citing § 2286, subd. (c))
and subtracted 48 months of postconviction credit (see §
2290). The total term of imprisonment was 34 years, 4
months. After discussing “habeas jurisdiction;” a
“general overview of sentencing of life and nonlife
crimes;” “term of imprisonment and parole of life
prisoners;” and “the sentencing authority of the superior
courts and the DSL term enhancement regulations;” the
court of appeal found, (Continued Next Page)
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(Martin Continued) “In this case, the Board did not purport to alter the superior court's determinate sentencing choices as
to petitioner's nonlife crimes. Rather, the Board determined solely the length of time petitioner will serve for his
indeterminate life crime, pursuant to the authority that has been, and remains, invested in the executive branch. The gist
of petitioner's argument is that section 2286, subdivision (b), accomplishes indirectly what the Board cannot do directly,
i.e., transmute concurrent determinate sentences into consecutive ones. As petitioner points out, he received concurrent
determinate sentences on all his nonlife crimes, resulting in an eight-year aggregate determinate sentence. However,
rather than adding eight years to his base term of imprisonment, the Board added over 22 years, essentially the period of
time he would have served on his nonlife crimes had he been consecutively sentenced. This does not mean, however, that
section 2286, subdivision (b), is constitutionally infirm and the Board impermissibly impinged on the superior court's
sentencing authority. (BS). The Legislature empowered the Board to adopt regulations to determine parole eligibility and
the term of imprisonment. (Pen. Code, § 3041, subd. (a).) Thus, the Legislature, itself, has specified the bounds of the
Board's authority. Further, section 2286, subdivision (a), expressly states "If the panel finds circumstances in aggravation
or mitigation as provided in §§ 2287 or 2288, the panel may impose a higher or lower enhancement, or may impose no
enhancement . . . ." (§ 2286, subd. (a).) One circumstance justifying a reduced term enhancement, or no enhancement, for
example, is when "[t]he period of incarceration imposed . . . as the sentence for the other crime is equal to or less than the
additional term provided by Section 2286." (§ 2288, subd. (a).) Thus, section 2286, subdivision (b), does not mandate a
particular result, but leaves it to the Board to exercise its discretion as to the appropriate term of imprisonment for a life
offender convicted of additional crimes. Applying these principles during the early transition from the ISL to the DSL,
the Courts of Appeal rejected arguments similar to that made by petitioner here—that the Board was impinging on the
authority granted to the courts under the DSL by adding other crime enhancements in calculating postulated DSL release
dates in cases where the courts had imposed concurrent sentences. (Continued Next Page)
Benjamin Ramos Law Office of Benjamin Ramos
7405 Greenback Lane #287 Citrus Heights, CA 95610
(916) 967-2927
www.lawofficeofbenjaminramos.com Experienced Parole Hearing Representation since 2000, successful law practice since 1991. Detailed Parole Hearing Strategies: After Shaputis II, “plausibility” of the prisoner’s account of
the crime and other matters is crucial; analyze all sources of evidence for presenting plausible and credible testimony and be prepared to handle priors, 115s, express “insight,” remorse and answer questions effectively, among other concerns.
27 Successful Habeas Petitions Against the Board/Governor; Dozens of Appointments by the Appellate Projects to Represent Clients in Parole Cases.
Representative Former Clients Now Released on Parole: Gary Eccher, Billy Mayfield, Clayton Mills, Frank Bautista, Larry Botsford, James Ludlow, Charles Williams, Darin Palermo, Michael Lindley, Michael Barnes, Michael deVries, Gustavo Aguilar . . . and many others.
Parole cases only. Clean State Bar Record spanning 21 years (State Bar #156643—check online).
“Ben made the deputy district attorney (DDA) look like a fool. After the DDA finished his closing by telling many lies and making false statements, Ben opened his closing with; ‘I object to everything the DDA said, if this were a court of law I would ask that his closing be stricken from the record as speculation and hearsay. He then took apart and exposed all the DDA’s lies and misrepresentations.’”
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(Lizarraga Continued) self-help group opportunities.” “The trial court addressed the grounds for the Board's decision
but evaluated them differently.” “The court concluded that a determination that the Lizarraga lacks insight ‘cannot be
predicated merely upon a hunch or intuition.’ A decision that is based on no evidence is arbitrary and capricious.” The
court of appeal disagreed and found, “We see nothing arbitrary in the Board's decision that denied Lizarraga's application
for parole. The Board's decision was reasoned and based on the evidence that was available to the Board. Lizarraga's lack
of insight seems to have been the primary reason why parole was denied. Commissioner Enloe clearly articulated why
this was important for purposes of determining whether Lizarraga posed a danger to the public. As Enloe pointed out, if
Lizarraga did not understand why he murdered De La Torre, it is hard to know whether such an act of violence could
happen again.” In addition, the appeals court stated, “We do not agree with the trial court's final conclusion that the
finding Lizarraga lacked insight was merely a hunch or intuition. Dr. Pritchard's report on this point rests on solid
foundations, which are lengthy statements made by Lizarraga, and his conclusions are closely reasoned. He traces
Lizarraga's development from the point that he actually blamed the victim to a more insightful stage when he realized the
tragedy that he had brought about in shooting De La Torre.” “Lizarraga errs when he claims that the Board cannot rely on
the nature of the crime to deny parole; the Board may rely on this factor as one of several in determining whether to grant
or deny parole.” “Lizarraga contends that Dr. Pritchard's conclusions were ‘patently false’ because Lizarraga's testimony
at the parole hearing indicates he has ‘sufficient insight.’ But Dr. Pritchard's conclusion is based on Lizarraga's inability
to move beyond the circumstance that he killed De La Torre out of jealousy. The fact that Lizarraga mishandled his
relationship with his wife casts very little light on the reason(s) he committed murder. The order of the superior court
granting the petition for writ of habeas corpus is reversed, and the case is remanded to the superior court with directions to
enter a new order denying the petition.”
IN RE JAMES CHARLES STONEROAD, (2013) 215 CAL.APP.4TH
596, CA1/2, (4-18-13), PUBLISHED.
Stoneroad a life-term inmate in state prison convicted of second degree murder, petitions for a writ of habeas corpus from
the decision of the Board denying him parole. Petitioner argues that the decision denying parole is arbitrary and
unsupported by some evidence of his current dangerousness. He additionally urges that the gravity of his commitment
offense can no longer be used to find him unsuitable for parole because he has already served more prison time than the
maximum base term prescribed by the Board's regulations for that offense. The court of appeal rejected the latter
argument but accepts the former as follows. “In 1987, a jury found petitioner guilty of the second degree murder of
Michael Kane, the 17-year-old son of petitioner's long-time girlfriend, Mildred Irwin, and of the attempted murder of
Irwin. He was sentenced to a term of 15 years to life for the murder of Kane and an additional 11-year consecutive term
for the attempted murder of Irwin and weapons enhancements. Petitioner entered state prison on July 1, 1987. He
became eligible for parole on March 9, 2002, and is currently serving his 26th year in state prison.” “In 2010, the Board
denied petitioner parole and scheduled his next parole hearing to occur in three years.” “Prior to his imprisonment,
petitioner had a long-standing problem with alcohol that is inseparable from any account of his life and the commitment
offenses. According to a 1987 probation department report, petitioner began drinking when he was 12 or 13 years old,
and was drinking regularly by the time he was 16. Petitioner was a ‘binge drinker,’ consuming alcohol until he was
extremely intoxicated and sometimes experiencing ‘blackouts.’ Petitioner murdered Kane and attempted to murder Irwin
after consuming large amounts of vodka, and has stated through the years since that he has very limited or no memories of
these crimes.” “As respondent acknowledges, petitioner has an exemplary prison history.” “The record contains several
psychological evaluations of petitioner” that found his risk of violence to be low. “At the 2010 Board hearing, petitioner
said he could not remember what had happened on the night of the commitment offenses, but agreed he had committed ‘a
pretty horrific crime.’ He had struggled with this issue ever since he entered prison because there was no reason for it,
and the only thing he could understand was that for years he had ‘hidden so much anger and rage inside of myself that
only came out when I was using alcohol.’” “Accepting the legitimacy of the Board's expressed concern that, though he
had been sober for 25 years, he could still fall back into his old habit, petitioner described in some detail his ‘relapse
prevention plan,’ which he said addressed ‘the challenge of high risk situations’ and pertinent ‘disinhibitors for relapse.’”
“Acknowledging petitioner's many positive achievements, including his work to date in AA, his payment in full of
restitution, his forthrightness with the Board, his discipline-free time in prison, his efforts to be assigned to, and complete,
a vocational program, and his participation in a variety of groups and cultural involvement, the (Continued Next Page)
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(Stoneroad Continued) Board denied him parole due to the heinousness of the life crime, his lack of insight into why he
committed it, a related concern with his accounting of the events that led up to the incident, and his limited working
through the steps of AA.” As Justice Kline laid out like a road map for lifers in $In re Morganti (2012) 204
Cal.App.4th
904: “As we have said, the Board does not fix an inmate's base term until he or she is found suitable for
release on parole despite the fact that the Board knows at the time the inmate enters prison the nature and circumstances of
the commitment offense, which is all it needs to know to fix the base term. This failure to promptly fix the base term may
well be constitutionally problematic. As Justice Mosk explained in $In re Wingo (1975) 14 Cal.3d 169, ‘a sentence may
be unconstitutionally excessive either because the [parole authority] has fixed a term disproportionate to the offense or, in
some circumstances, because no term whatever has been set. A failure to fix his term may be just as violative of a
defendant's right as an actual excessive term . . . .’ (Id. at pp. 182-183.) The potential for prison terms disproportionate
to individual culpability led the court in Rodriguez (construing the indeterminate sentencing law then in effect) to order
the Board to set maximum terms promptly upon inmates' entry into prison.” (In re Rodriguez (1975) 14 Cal.3d 639, was
the catalyst for the change in Penal Code § 3041 from “parole may be granted” to “parole shall normally be granted.”)
The Board's "Decision" in this case clearly does not reflect an individualized consideration. It ignores not just "several"
factors indicative of suitability for release set forth in its own regulations (Regs., § 2402, subd. (d)), but virtually all of
them. The Board Decision in this case simply ignores petitioner's "exemplary prison record and extensive rehabilitative
programming," which indicates "an enhanced ability to function within the law upon release." The courts “concern is not
that the Board accorded insufficient weight to the foregoing relevant factors—an evaluation outside the scope of our
review—but that it did not duly consider them in the first place, as its regulations require (Regs., § 2402, subd. (b)), and
its Decision provides no rational justification for the failure to do so.” “The failure of the deputy commissioner
acknowledged that the three risk assessment tools used to measure petitioner's current dangerousness all placed him in the
low range for recidivism. However, the deputy commissioner pointed out, Dr. Hayward ‘opines that your risk would
increase if you resumed the use of alcohol, had difficulty maintaining housing in a clean and sober environment, or had
difficulty obtaining employment that would provide you with sufficient income for your daily needs.’ Petitioner
acknowledged these dangers and never sought to downplay them. As earlier indicated, his relapse prevention plan, the
centerpiece of petitioner's presentation at the parole hearing, addressed all of the concerns referred to by Dr. Hayward.”
“Petitioner's acknowledgment of the value of AA and intention to continue with it after release cannot, in our view,
reasonably be considered evidence that his progress in addressing his alcoholism is ‘limited.’ Nor do we think petitioner's
progress in the Native American Spiritual Circle, which in recent years has been at the center of his life, ‘limited’; and the
Board made no such finding.” “Emphasizing that the commitment offense was ‘terribly atrocious, heinous, [and] cruel,’
the Decision makes clear that, notwithstanding petitioner's acceptance of full responsibility for his criminal act and
unquestioned remorse, the overriding issue for the panel was the extent to which petitioner's inability to remember
committing his offense obstructed his ability to understand the factors that caused the criminal act. As the presiding
commissioner stated at the outset of the Decision: ‘Mr. Stoneroad, I've got to tell you some things here. This panel could
not get past—I asked you a lot of questions about understanding this life crime, and I know you say you don't remember,
but if you don't remember, at least you should have some kind of understanding of how this happened, and you don't even
have an understanding on how this crime happened.’” “The significance the Board attached to petitioner's inability to
remember committing his offense, as demonstrated by its Decision, was evident the moment the hearing commenced.”
“Perceiving petitioner was ‘not going to talk about the life crime’ because he had no memory of it, the presiding
commissioner asked him ‘have you ever talked about the life crime?’ are there ‘any documents . . . that I could go to?’
‘Did you talk to the probation officer about the life crime, sir, or—I've got to have something that I—well, I don't have to,
but it would be nice.’ Petitioner repeated that he could not remember the event and the commissioner again stated, ‘So,
that's basically your statement.’ Petitioner said ‘yes,’ the commissioner repeated ‘You just don't know what happened,’
and petitioner again stated: ‘I don't recall what happened, actually.’ “There is in the present case no evidence suggesting
petitioner's admitted inability to recall commission of his crimes obstructs his understanding of the factors that caused him
to commit them. To begin with, nothing in the record calls into question the authenticity of petitioner's lack of recall. The
psychologists and others who evaluated him all accepted the disability as genuine and none suggested it has in any way
impaired his insight into the factors that caused him to commit his crimes.” “It is also worth noting that petitioner's
inability to recall commission of his offense at the time he was arrested more than 25 years ago (Continued Next Page)
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(Stoneroad Continued) and consistently since then has never previously been questioned or used by the Board to
demonstrate current dangerousness. When petitioner was last denied parole in 2006, nothing was said to him about this
issue. He was told that in order to get a release date he needed to: ‘(1) Stay discipline free; (2) Get self-help; (3) Earn
positive chronos; (4) Learn a trade; (5) Get therapy; and (6) Get a GED.’ When he appeared before the Board in 2010,
petitioner had accomplished all of these goals save the last, a deficiency the Board ignored at the 2010 hearing.
Petitioner's substantial compliance with the Board's 2006 directive availed him nothing; instead, a new theory of
unsuitability was suddenly presented. The Board's reliance on lack of insight in this case is readily distinguishable from
its proper use of that factor in Shaputis II.” “The theory relied upon by the Board is remarkable not just because there is
no evidence in the record to support it, but also because the record contains abundant evidence, also ignored by the Board,
that petitioner understands the factors that led him to commit his crimes, and what he needs to do to insure that they do
not again come into play. As we have seen, in his testimony at the parole hearing petitioner articulately described (1) the
sources of his suppressed anger and rage, (2) the ways in which these factors led to his alcoholism, (3) the manner in
which intoxication lowered his inhibitions and released the rage he was otherwise able to repress, and (4) the steps he
needed to take to stay sober and safe. Dr. Hayward's 2009 evaluation of petitioner confirms petitioner possesses these
understandings as, in varying degrees, do earlier evaluations of petitioner by other Board psychologists and correctional
counselors.” Stoneroad gets a new hearing as a result.
REENTRY MYTH BUSTER? This Myth Buster is one in a series of fact sheets intended to clarify
existing federal policies that affect formerly incarcerated individuals and their families. Each year, more than
700,000 individuals are released from state/federal prisons. 9 million more cycle through local jails. When
reentry fails, the social and economic costs are high--more crime, more victims, more family distress, and more
pressure on budgets. Because reentry intersects with health and housing, education and employment, family,
faith, and community well-being, many federal agencies are focusing on initiatives for the reentry population.
Under the auspices of the Cabinet-level interagency Reentry Council, federal agencies are working together to
enhance community safety and wellbeing, assist those returning from prison and jail in becoming productive
citizens, and save taxpayer dollars by lowering the direct and collateral costs of incarceration.
MYTH: An employer can get a copy of your criminal history from companies that do background checks
without your permission.
FACT: According to the Fair Credit Reporting Act (FCRA), employers must get one’s permission, usually in
writing, before asking a background screening company for a criminal history report. If one does not give
permission or authorization, the application for employment may not get reviewed. If a person does give
permission but does not get hired because of information in the report, the potential employer must follow
several legal obligations.
Key Employer Obligations in the FCRA: An employer that might use an individual’s criminal history report
to take an “adverse action” (e.g., to deny an application for employment) must provide a copy of the report and
a document called A Summary of Your Rights under the Fair Credit Reporting Act before taking the adverse
action. An employer that takes an adverse action against an individual based on information in a criminal
history report must tell the individual – orally, in writing, or electronically: (1) the name, address, and telephone
number of the company that supplied the criminal history report; (2) that the company that supplied the criminal
history information did not make the decision to take the adverse action and cannot give specific reasons for it;
and (3) about one’s right to dispute the accuracy or completeness of any information in the report, and one’s
right to an additional free report from the company that supplied the criminal history report, if requested within
60 days of the adverse action. A reporting company that gathers negative information from public criminal
records, and provides it to an employer in a criminal history report, must inform the individual that it gave the
information to the employer or that it is taking precautions to make sure the information is complete and
current. If an employer violation of the FCRA is suspected, it should be reported it to (Continue Next Page)
ECC NEWSLETTER #6 MAY 2013
JUSTICE FOR ALL
Page-15
HELPING EVERYONE REGARDLESS ECC, 532 N. MAGNOLIA AVE. #333, ANAHEIM, CA 92801
$ means these court orders are available to purchase for U.S. currency or stamps. See last page for details.
(Myth Buster Continued) the Federal Trade Commission (FTC). The law allows the FTC, other federal
agencies, and states to take legal action against employers who fail to comply with the law’s provisions. The
FCRA also allows individuals to take legal action against employers in state or federal court for certain
violations. For More Information: See Credit Reports and Employment Background Checks from the
Federal Trade Commission (http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre36.pdf).
First Annual Lifer Celebration June 8th 2013 Noon until 6PM Eccher & Chandler Consulting is happy to announce that we are hosting our first lifer celebration. All
lifers, families, and friends are invited. Location: Boisseranc Park 7520 Dale St. Buena Park, CA 90620
The park is already reserved. It is on North Dale Street with the major cross-street La Palma Avenue. 1 mile
from the I-5/91 Freeway Split. This is a beautiful park with 200-parking spots nearby, 2-playgrounds for kids,
4-tennis/handball courts, 3-basketball courts, swimming pool with 2-life guards, 2-large clean restrooms, dog-
friendly, plenty of grass and shade trees. We have 26-tables and 125-chairs, bring a blanket and make it a
picnic if you like! Buena Park is normally 80-degrees in June. No alcohol allowed in park. Sorry.
FOOD: 600-pieces of Fried Chicken, 300-Tacos, 300-Smoked Sausages, 1000-bottles of water and cans of
soda, potato salad, salad, chips, fresh vegetables and fruit, plus sweets.
Everyone is welcome regardless. If you would like to bring a dish or make a donation that would be
appreciated to help offset the cost but it is not necessary in any way.
