Metropolitan News-Enterprise


Tuesday, November 18, 2003


Page 1


Appeals Court Overturns Order Granting Parole to ‘Thrill’ Killer


By KENNETH OFGANG, Staff Writer/Appellate Courts


The Court of Appeal for this district has overturned a Los Angeles Superior Court judge’s order that a man convicted of a robbery-murder when he was 18 years of age be released on parole.

Justice Margaret Grignon, in an unpublished opinion Friday for Div. Five, said Michael Hamilton is not entitled to release because there is “some evidence” supporting then-Gov. Gray Davis’ decision to deny him parole in April of last year.

Hamilton, who had left for Missouri, surrendered to authorities after two juveniles implicated him in the killing of Ricardo Pena, who was robbed and shot after he entered a restaurant, unaware that a robbery was in progress. Hamilton and the juveniles, according to testimony, had decided to rob the restaurant for a “thrill.”

The three obtained a pistol and a shotgun from the home of one of the juveniles, who loaded the pistol and gave it to Hamilton. While Hamilton held the gun on the cook and ordered him to open the register, one of the juveniles held the shotgun on Pena.

Hamilton, the evidence showed, then jumped back over the counter, put the pistol to the head of Pena, who was ordered to lie on the ground, then shot him in the back of the head. Hamilton then took $153 from the cook and fled the restaurant.

Term Reduced

A jury found him guilty of first degree murder and robbery and found that he personally used a firearm during the commission of the crimes. He was sentenced in 1980 to 25 years to life in prison, but the term was reduced to 15 years to life after a Superior Court judge found that the original sentence constituted cruel and unusual punishment under the circumstances of the case.

The Board of Prison Terms denied Hamilton parole nine times in the 1990s. At his 10th hearing, held two years ago, he was found suitable for parole based on his lack of any record of violence prior to the murder, his record in prison, his remorse, and the availability of employment and family support following release.

Davis, however, cited evidence before the board that Hamilton planned the robbery, demonstrated “a callous disregard for human life and suffering,” and had an “inexplicable” motive for the killing. He also noted that Hamilton’s juvenile record involved a series of offenses, although none of them were violent; had a history of substance abuse; and had committed numerous disciplinary offenses in prison, including some involving violence and several involving disrespect for authority.

Remose Disputed

The governor also took issue with the board’s finding of remorse, saying that while Hamilton “sometimes “sometimes acknowledges his responsibility for his crime,” he also “rationalizes it by blaming it on his family difficulties and alcohol.” Davis questioned whether Hamilton would be able to deal with adverse situations as a parolee, said he was likely to be a danger to society if released, and noted that the district attorney and sheriff of Los Angeles County were opposed to his release.

In a petition for writ of habeas corpus, Hamilton’s attorneys argued that the governor had engaged in a sham process in which no consideration was actually given to the board’s finding of suitability.

Los Angeles Superior Court Judge David S. Wesley granted Hamilton’s petition for habeas corpus and ordered his release last May. Wesley said the governor had acted contrary to law by treating the shooting as intentional, whereas the previous judge had found it accidental and ordered the reduction of the original sentence.

He also found the governor’s conclusion that Hamilton had not taken responsibility for the crime to be unsupported by the evidence, and noted that Davis did not take account of the improvement in the defendant’s prison record after he left San Quentin in 1985.

But Grignon cited In re Rosenkrantz (2002) 29 Cal.4th 616. That decision holds that the governor’s veto of a parole suitability determination must be upheld if it is supported by “some evidence” in the record of the proceedings before the board.

Consistency Not Required

Grignon noted that under Rosenkrantz, the governor’s finding, if supported by evidence, need not be consistent with a finding by another fact finder. Davis, she said, could reasonably infer from the facts before the board that the shooting, even if unintentional, “had been committed as a result of a callous disregard for the life of the victim.”

The justice summarized:

Hamilton took a loaded pistol, cocked it, and placed it in his waistband.  It was Hamilton who jumped over the counter and ordered the cook at gunpoint to open the register.  It was Hamilton who jumped back over the counter and shot a compliant and unresisting customer in the back of the head.  It was Hamilton who left his dying victim on the floor and jumped back over the counter to complete the robbery.  It was Hamilton who fled out of state.”

She also noted that multiple victims, including the cook, were assaulted during the robbery.

The jurist went on to conclude that the governor’s findings regarding prison misconduct by Hamilton, who had joined the Aryan Brotherhood, were supported by some evidence.

“Although the Governor’s decision does not mention some of the circumstances that the Board found tended to establish Hamilton’s suitability for parole, nothing in the Governor’s decision indicates that he failed to consider all of the relevant factors as they applied to Hamilton’s individual case,” Grignon wrote. “That the Board, the superior court, or even this court might have arrived at a different determination is not relevant.”

Presiding Justice Paul A. Turner concurred in the opinion.

Justice Richard Mosk concurred in a separate opinion complaining that the “some evidence” test is difficult to apply. He said the test does not substitute for the requirement that the governor review the board’s finding in a manner consistent with due process, but concluded that there were no material errors or omissions in Davis’ decision and insufficient evidence of a due process case.

The case is In re Hamilton, B168006.


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