IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

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1 Filed 4/15/11 In re Cassidy CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE In re MARYLINN CASSIDY, on Habeas Corpus. A (Alameda County Super. Ct. No. H11890A) Marylinn Cassidy is serving a sentence of 15 years to life, with a minimum eligibility parole date of March 1994, having been convicted on her guilty plea of the second degree murder of her husband. (Pen. Code 187.) 1 Incarcerated since October of 1984, she challenges the August 12, 2009 decision of the Board of Parole Hearings (Board) finding her unsuitable for parole. She contends there is no reliable evidence to support the decision, it was arbitrary and capricious, and it violated her state and federal due process rights. The Attorney General responds the Board s finding that Cassidy poses a current, unreasonable risk of danger to public safety is supported by some evidence, and the decision did not violate her state or federal constitutional rights. We hold the Board s decision is not supported by the evidence. Accordingly, we grant the petition for writ of habeas corpus to the extent that we direct the Board to hold a new parole suitability hearing for Cassidy. (In re Prather (2010) 50 Cal.4th 238, 251.) 1 Further statutory references are to the Penal Code unless otherwise noted.

2 APPLICABLE LEGAL PRINCIPLES The Supreme Court set forth the legal principles governing parole suitability decisions and our appellate review of them in In re Lawrence (2008) 44 Cal.4th 1181 and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis). Numerous opinions of the Court of Appeal have subsequently summarized and restated those rules. We quote the summary by the Third Appellate District in In re Palermo (2009) 171 Cal.App.4th 1096, ) One year prior to the minimum eligible parole release date of an inmate sentenced to an indeterminate prison term, the Board must normally set a parole release date... in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public.... (Pen. Code, 3041, subd. (a).) The Board shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting. (Pen. Code, 3041, subd. (b).) The Board is required to establish criteria for the setting of parole release dates. (Pen. Code, 3041, subd. (a).) A panel of the Board must determine whether the life prisoner is suitable for release on parole, and [r]egardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison. (Cal. Code Regs., tit. 15, 2402, subd. (a); further section references are to title 15 of the California Code of Regulations unless otherwise specified.) The Board s regulations set forth nine factors tending to show suitability for release on parole: (1) the absence of a juvenile record; (2) a history of reasonably stable social relationships with others; (3) tangible signs of remorse; (4) the commission of the crime resulted from significant stress, especially if the stress had built over a long period of time; (5) battered woman syndrome; (6) a lack of a history of violent crime; (7) increased age, which reduces the probability of recidivism; (8) marketable skills and 2

3 reasonable plans for the future; and (9) responsible institutional behavior. ( 2402, subd. (d).) Factors tending to demonstrate unsuitability for release on parole include the inmate s (1) commission of the offense in an especially heinous, atrocious, or cruel manner; (2) previous history of violence; (3) unstable social history; (4) prior sadistic sexual offenses; (5) lengthy history of mental problems; and (6) serious misconduct in prison or jail. ( 2402, subd. (c).) The importance of those factors is left to the discretion of the parole panel ( 2402, subds. (c), (d)), and judicial review of the Board s parole decisions is very limited. [T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the [Board], but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious. It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole. As long as the [Board s] decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court s review is limited to ascertaining whether there is some evidence in the record that supports the [Board s] decision. ([In re] Rosenkrantz [(2002)] 29 Cal.4th [616,] 677.) However, the deferential review accorded the Board s decision does not mean that courts simply rubberstamp its determination as long as there is some evidence to support any of the unsuitability factors; the standard is unquestionably deferential, but certainly is not toothless. (Lawrence, supra, 44 Cal.4th at p ) Rather, the reference in Rosenkrantz to some evidence to support the Board s decision to deny parole means its ultimate decision that the inmate poses a current risk of danger to society if released from prison. (Lawrence, supra,... at pp. 1210, 1212; see also [In re] Lee [(2006)] 143 Cal.App.4th [1400,] 1408; In re Tripp (2007) 150 Cal.App.4th 306, 313 [58 Cal.Rptr.3d 64].) 3

4 Accordingly, to give meaning to the statute s directive that the Board shall normally set a parole release date ([Pen. Code,] 3041, subd. (a)), a reviewing court s inquiry must extend beyond searching the record for some evidence that the commitment offense was particularly egregious and for a mere acknowledgement by the Board or the Governor that evidence favoring suitability exists. Instead, under the statute and the governing regulations, the circumstances of the commitment offense (or any of the other factors related to unsuitability) establish unsuitability if, and only if, those circumstances are probative to the determination that a prisoner remains a danger to the public. It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public. (Lawrence, supra, 44 Cal.4th at p. 1212, original italics.) There must be something more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision the determination of current dangerousness. It is well established that a policy of rejecting parole solely upon the basis of the type of offense, without individualized treatment and due consideration, deprives an inmate of due process of law. [Citation.] (Lawrence, supra, 44 Cal.4th at p ) With respect to the aggravated circumstances of the commitment offense, the statutory and regulatory mandate to normally grant parole to life prisoners who have committed murder means that, particularly after these prisoners have served their suggested base terms, the underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when there is strong evidence of rehabilitation and no other evidence of current dangerousness. (Lawrence, supra, 44 Cal.4th at p ) In other words, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner s pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner s dangerousness that derive from his or her commission of the commitment 4

5 offense remain probative to the statutory determination of a continuing threat to public safety. (Id. at p. 1214, original italics.) Thus, the determination whether an inmate poses a current danger is not dependent upon whether his or her commitment offense is more or less egregious than other, similar crimes. [Citation.] Nor is it dependent solely upon whether the circumstances of the offense exhibit viciousness above the minimum elements required for conviction of that offense. Rather, the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense. This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate s psychological or mental attitude. [Citations.] (Lawrence, supra, 44 Cal.4th at p ) In sum, the Board may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate s criminal history, but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. [Citation.] Accordingly, the relevant inquiry for a reviewing court is not merely whether an inmate s crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor. (Lawrence, supra, 44 Cal.4th at p. 1221, original italics.) THE HEARING RECORD We now examine the record before the Board in light of the some evidence standard. 1. The life crime. The Board recited the following version of the life crime. July 19, 1983 between 7:00 a.m. and 8:00 a.m. Jeff Grey shot John Jack Simmons twice in the head with a.357 5

6 Magnum pistol at Jack s Bail Bond Office in the City of San Leandro, California. Prior to the shooting, Ms. Cassidy paid a hit man, her co-defendant Jeff Grey, $20,000 to kill her husband, the victim, John Jack Simmons. The offense occurred when the codefendant Jeff Grey went into the victim s... office, and asked the victim for some coffee. When the victim left the room the [co-defendant] Grey put a gun in a McDonald s bag. The victim returned with the coffee and sat at his desk. Grey [stood up, removed the gun from the bag,] and shot Jack twice in the head. Grey then [left the premises. He] made a call from gas station near a 7-Eleven store[, reporting] a robbery [had taken] place at a convenience store on Davis Street to draw the police away from the area of the victim s office. Ms. Cassidy, know[n] as Joyce Simmons, telephoned the San Leandro Police Department and reported she had found her husband, the victim, Jack, at his desk at work bleeding. Police officers found the victim slumped over the top left drawer of his desk. His right hand was fully extended and he still held a pen in his hand. There was a large amount of blood and brain matter on the floor, and pieces of scalp were stuck to the north wall behind him. The victim s skin was still warm to the touch[;] however, the officers could not find a pulse, respiration, or signs of life. Petitioner Cassidy s version of the crime was taken from the Board report dated September 2006 as follows: Inmate Cassidy reported that prior to the [instant] offense she was separated from her husband. She and her husband owned a bail bonds business together, despite their marital differences. Inmate Cassidy states that she met her co-defendant, Jeff Grey [while] purchasing illegal fireworks. She and Mr. Grey immediately became friends. Mr. Grey wanted her to employ him as a bail bonds enforcer for the business that she owned with her husband. She recalls complaining to Mr. Grey often about her husband and their marital problems. The evening prior to the [instant] offense her husband telephoned her and informed her that he would no longer be financially supporting her. She admits that without his monetary support she would suffer some financial difficulties. During the conversation with her husband, Mr. Grey was at her residence and she told him... what transpired. Mr. Grey made comments to her that he would take 6

7 care of the problem. Inmate Cassidy states that she knew in her heart that Mr. Grey was probably going to murder her husband based on his remarks. Inmate Cassidy expressed feelings of guilt and responsibility for the murder because she did not attempt to stop Mr. Grey from carrying out his threats. She said the next day she went to her place of business, found her husband s body, and telephoned the police. Cassidy reiterated her consistent statements to prior Board panels that she never gave Grey money, and never agreed to give him money. She explained I really don t go into depth in my crime at my Board Hearings but I can tell you that it was not a murder [for] hire, it was not set up that way. It was a set of very awful, terrible circumstances that culminated in the murder of this man. And it wasn t preplanned. It wasn t the things the police department that s why I took a plea bargain for second degree murder.... Because I felt like that s where my culpability lie. Cassidy s version of the crime is in contrast to other documents considered by the Board contained in police records and court files including the Probation Officer s Report, which discussed detailed statements made by Grey that Cassidy had hired him to kill Simmons, as well as statements made by Kenneth Guy, a roommate of Cassidy s, that she had told him she set Jack up to be killed.... She said the plan was that someone would call Jack and set up a meeting... regarding bail and Jeff would meet Jack at the office and kill him. After the murder, Grey moved in with Cassidy for a month. Cassidy was not arrested until October 18, Cassidy s pre-prison history. Cassidy was born in Texas, moved to Missouri at the age of 12 and to California at the age of 29. Her mother had been a housekeeper, and died of a stroke suffered in 1984 upon learning of Cassidy s arrest. Her father, a farmer, died in Cassidy was married at age 17, divorcing at age 18. Her second marriage at age 20 lasted about two years. She married again at 24, but divorced two years later. She again married briefly at 26. She married the crime victim when she was 30, and they remained married until his death approximately 15 years later. In January of 1984, she 7

8 married Anthony Cassidy whom she met through the victim s bail bond business. He was in custody, and eventually, he testified against her. They were divorced after a year. She had one daughter. Regarding her multiple marriages, she explained to the Board that her mother told her If you re going to sleep with somebody, you have to marry him. And her father told her If you re not happy, get out. Don t live like I have all my life. She explained, So that s what I did. I mean, that s the only way I can explain it. I know that sounds ridiculous but that s what I heard all my life and that s what I did. Cassidy was in the 10th grade when she dropped out of high school. She attended court reporting school and, prior to her arrest, worked and taught court reporting. She worked in the victim s bail bond and accounting businesses during their marriage. She has a brother and sister and is estranged from them as she is from her daughter. Her siblings blame her for her mother s death. Cassidy has no criminal history other than the life crime. 3. Post-conviction history. Cassidy has been a model prisoner throughout her years of incarceration. Her undisputed post-conviction history is summarized at length in her traverse, and our recitation here is taken from her summary. She has received no disciplinary CDC 115 s, and only two CDC 128 s. 2 The first of these, in 1993, concerned clipboards, a wire bucket, a contraband picture and non-see through pens found in her cell. The second, received in 2004, was for smoking in her cell. She has no history of drug or alcohol abuse. Her classification score is 19 and Medium A, the lowest possible score given her life crime. She obtained her GED while in prison. Her programming has been extensive, including therapy and self-help activities (Christian Freedom from Bitterness, Victim Impact Seminar, Victim Services Program, self-esteem classes). She has received 2 When an inmate commits misconduct that is believed to be a violation of law or is not minor in nature, it is reported on a Form , Rules Violation Report, whereas, minor misconduct is documented on a Form 128-A, Custodial Counseling Chrono. (Cal. Code Regs., tit. 15, 3312; see also In re Palermo, supra, 171 Cal.App.4th 1096, 1104, fn. 1.) 8

9 laudatory chronos for her work as chair of the Long Termers Organization, and has participated in the Young Adult Network Group, and the Latino self-help group. A certified HIV Peer Educator since 1995, she has been trained in a number of related subjects through the CDC in Sacramento and the AIDS Services Foundation in Los Angeles. She worked as an HIV Peer Educator Clerk at the time of the hearing. Prior to that job, she was a sewing machine operator for prison industries. She has received consistently excellent work reports, and is considered an asset to the prison work force, interacting well with staff and other prisoners. She has pursued Bible studies extensively while in prison, and is actively involved in Extreme Joy Bible Study and a Christian-based Twelve Step program with a residential aftercare component. She has also participated in the Women of the Bible program, Prison Fellowship Ministries and Garden Path Ministries. She is remorseful. Although, as noted, she is estranged from her siblings and daughter, she has had the consistent support of long-term friends, including her minister and his wife who have offered her housing upon her release. 4. Psychological evaluations. The most recent evaluation of Cassidy was performed by Dr. Robert E. Record in September of Applying the Board s required protocol, Dr. Record rated Cassidy at the lowest possible risk level, very low on all risk instruments save one. In that category, which includes historical violence, here the life crime, she was rated simply low. She presented no indication of a personality trait of psychopathy or increased future violence. She scored lower than 99 percent of North American female offenders for risk of general recidivism. She had no Axis I major diagnosis. In the past, she had been diagnosed with an antisocial personality disorder (Axis II) in four reports by Dr. McDaniel in 1995, 1998, 2000 and 2002, but Dr. Record found it not evident. He did state that she had some dependency personality traits evidenced by her multiple marriages. The psychologist who prepared a 2004 report also found no antisocial personality traits, noting that if she had any they were in remission. 9

10 Dr. Record concluded that Cassidy posed a very low risk of violence in the community and that [a]t this time there is significant evidence, however, that the inmate has the skills and insight necessary for decreasing her violence risk. He assigned her a GAF score of 95 that of a person with superior functioning in a wide range of activities, life s problems never seem to get out of hand, is sought out by others because of his or her many positive qualities. 5. Parole plans. The adequacy of Cassidy s parole plans is not in dispute. She has three separate, detailed residential plans, two in group homes and one with long-time friends, her pastor and his wife. She has employment skills and opportunities. She will be able to collect Social Security. She has the support of long-time friends. THE BOARD S DECISION The Board has relied primarily on the crime itself, noting that the offense was carried out in a dispassionate and calculated manner, with callous disregard for the suffering of the victim, and for a trivial motive, greed Cassidy s money was to be cut off by the victim. The Board explained that Cassidy s statements about the crime, both at the hearing and in the past, conflicted with the probation report, but noted this Panel is aware that usually the truth is somewhere in between. The Board was troubled with the fact that 16 months passed between the murder and Cassidy s arrest, and also that the hit man was allowed to move in with Cassidy. The Board wanted to know Cassidy s insight into this crime, and to be comfortable that you have a good understanding of just how these dynamics created themselves and why they won t reoccur. Noting Cassidy s co-dependency issues, and that she liked to have a man around, the Board expressed concern that with these type of crimes that you were involved with, it s more of your influence on someone else with the offer of a, you know, getting that person whether it s $20,000 or a better situation. And so age is not so effective in regards to these crimes. We normally have these statistical, well, statistic[s] would indicate that as people get older they re less prone to 10

11 crime and it s true. But [there are] certain types of crimes that are not so prone to decrease with age, and this is one of those. The Board observed due to Cassidy s unwillingness to discuss the crime, it did not have the opportunity to really explore insight, and noted nothing in the psychological evaluation discussed insight into the crime. Several times, the Board expressed its concern that Cassidy continued to work the deceased s business for 16 months after the murder. The Board also relied on the instability manifested in Cassidy s social history. You had experimented with drugs. You had left high school I think in the 10th grade? Or am I misquoting it. You had a number of tumultuous relationships, including your marriages, some six marriages five up to the crime and then six once in custody. Your daughter apparently had issues early on. There s certainly something missing in the social that didn t allow you to really settle in and lead a very kind of life you wanted. You mentioned that here today, that you were constantly looking. The Board expressed its approval of Cassidy s insight and self-assessment of her own strengths and weaknesses as expressed in the 2008 psychological evaluation, but again announced its concern regarding her lack of explicit discussion of her insight into the crime itself, and her unwillingness to discuss it. The Board gave Cassidy a three year denial, but noted we didn t feel three was an appropriate length of denial. The Board felt that Cassidy should clarify for us where you re at, where you were, and how you ve transitioned from where you were and understand how you were and how you are today. DISCUSSION We, of course, are required to uphold the Board s decision if it is supported by a modicum of evidence probative of current dangerousness. As we have seen, however, the law is settled that the underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when there is strong evidence of rehabilitation and no other evidence of current dangerousness. (In re Lawrence, supra, 44 Cal.4th 1181, 1211.) Here the commitment offense is both temporally remote and 11

12 mitigated by circumstances indicating the conduct is unlikely to recur, (id. at p. 1191) including Cassidy s exemplary rehabilitative efforts in prison, her solid parole plans, and her psychological reports. The other factors relied upon by the Board also fail to support its decision, either alone or in conjunction with the crime. Cassidy s social history, like the immutable facts of the crime, cannot be changed. 3 Nothing in her post-conviction history suggests the instability noted by the Board. Her recent psychological evaluations put her at the lowest possible risk of reoffending. There is simply no rational nexus in this record between Cassidy s past social history and her present dangerousness. The Board s additional, and primary, concern was Cassidy s alleged failure to articulate insight into why she committed the crime. An inmate s acceptance of responsibility and signs of remorse may be considered in determining the inmate s suitability for parole. ( 2402, subd. (d)(3); Shaputis, supra, 44 Cal.4th [1241,] 1246.) In addition, to the extent these factors show an inmate lacks insight into and understanding of the behavior precipitating the commitment offense, they can support a conclusion the inmate is currently dangerous. (Shaputis, supra, at p ) Expressions of insight and remorse will vary from inmate to inmate and there are no special words for an inmate to articulate in order to communicate he or she has committed to ending a previous pattern of violent or antisocial behavior. (Id. at p. 1260, fn. 18.) Like all evidence relied upon to find an inmate unsuitable for release on parole, in our view lack of insight is probative of unsuitability only to the extent that it is shown by the record and rationally indicative of the inmate s current dangerousness. (In re Twinn (2010) 190 Cal.App.4th 447, 465, fn. omitted.) Contrary to the Board s decision, Cassidy s 2004 psychological evaluation did contain a detailed discussion of her insight into the causative factors of the crime, as well as her remorse and acceptance of responsibility. 3 We also observe the Board was factually in error regarding its stated concern that Cassidy continued to run the deceased s business after the murder. There is no evidence in the record to support this conclusion, and Cassidy stated otherwise. 12

13 When closely examined, the Board s conclusion Cassidy lacks insight into the crime really is an expression of its concern that Cassidy failed to admit a version of the facts consistent with the recitation in the probation report. The Board repeatedly admonished Cassidy it was troubled by her failure to discuss the crime. But the Board is precluded from conditioning a prisoner s parole on an admission of guilt. (In re Palermo, supra, 171 Cal.App.4th 1096, 1110.) Moreover, Cassidy s statements about the crime, and the reasons for her guilty plea to second degree murder, have remained unchanged over the decades of her incarceration. Nothing in the record suggests further imprisonment will compel her to alter her version of the facts and her explanation for her guilty plea in order to conform to the probation report. Significantly, the Board failed to articulate a rational nexus between these discrepancies and present dangerousness (In re Twinn, supra, 190 Cal.App.4th 447, 468), relying instead on speculation Cassidy might commit such a crime again. Given Cassidy s present age of 71 years, lack of criminal history, remorse, exemplary in-prison behavior, positive programming for over 25 years, extensive parole plans, support network, and psychological evaluations, nothing in this record supports such speculation. DISPOSITION The petition for writ of habeas corpus is granted to the extent that the August 12, 2009 decision of the Board of Parole Hearings finding Marylinn Cassidy unsuitable for parole is vacated, and the Board is directed to hold a new parole suitability hearing within 30 days of issuance of the remittitur in accordance with due process of law. (In re Prather, supra, 50 Cal.4th 238, 251.) 13

14 Dondero, J. We concur: Marchiano, P. J. Banke, J. 14