Wednesday, August 29, 2007
Page 1
C.A. Overturns Order Releasing Octogenarian Convicted of Murder
By KENNETH OFGANG, Staff Writer
Gov. Arnold Schwarzenegger had legally sufficient reasons for vetoing the proposed release of an 82-year-old convicted murderer from prison, the Court of Appeal for this district ruled yesterday.
Div. Four, in an opinion by Justice Thomas Willhite, said Los Angeles Superior Court Judge David Wesley improperly reweighed the evidence in concluding that the governor had exceeded his authority when he decided that Arnold Jacobson should remain in prison.
Jacobson has served more than 20 years of a 17-year-to-life sentence for the murder of Patty Silveira outside the Barge Inn, a Long Beach bar.. Silveira was a friend of Sonja Sharlow, Jacobson’s ex-girlfriend, who was also shot on the night of March 13, 1985.
Jacobson, who had frequently been following Sharlow since their breakup, followed the two women to the bar. After Sharlow saw Jacobson in the parking lot, she ran into the bar but was shot in the leg before alerting Silveira, who came out and was shot in the chest at close range.
Jacobson, who left the scene, was arrested 12 days later. Charged with murder and attempted murder, he testified at his non-jury trial that he was intoxicated, that he did not intend to kill either woman, that he shot Sharlow, and that when Silveira came out of the bar and confronted him, he was startled and the gun fired again accidentally.
Implied Malice
The judge found him guilty of second degree murder and attempted murder, saying he shot the women with implied malice and that his actions on the night of the murder and his ability to set out a clear version of the events showed that he was not impaired by alcohol so as to diminish his responsibility.
He became eligible for parole in 1995 and was turned down several times before the Board of Prison Terms—now the Board of Parole Hearings—found him suitable for release in 2003. His release was vetoed by then-Gov. Gray Davis, however.
In 2005, the board again found him suitable for release. Schwarzenegger, however, concluded that his age, record of good behavior in prison, positive mental health evaluations, and pledges of support and assistance from fellow military veterans did not outweigh the seriousness of the crime and his continuing refusal to take responsibility by admitting that he shot Silveira intentionally.
In granting Jacobson’s petition for writ of habeas corpus, Wesley reasoned that contrary to the governor’s conclusion, there was no evidence showing that Jacobson was dangerous or lacked remorse.
‘Highly Deferential’ Standard
But Willhite, writing for the Court of Appeal, said Wesley failed to apply the “highly deferential” standard of review required by In re Rosenkrantz (2002) 29 Cal.4th 616. That standard, the justice explained, “examines only whether the factual basis on which the Governor relies to deny parole gives due consideration to the factors he is required by law to consider as applicable to the particular inmate, is drawn from the record before the Board, and is supported by ‘some evidence’ in that record.”
Willhite acknowledged that at least six recent published opinions have overturned the governor’s parole vetoes. But he concluded that those courts erred because they had “transmuted the Rosenkrantz standard into one that permits the court to reweigh evidence, recalibrate relevant factors, and reach an independent determination whether the inmate continues to pose a risk to public safety.”
Applying the Rosenkrantz standard to Jacobson’s case, the justice went on to say, requires that habeas corpus relief be denied.
Willhite explained:
“The Governor legitimately concluded that petitioner fired multiple shots (one bullet and four shell casings were found at the scene), and that ‘[petitioner’s] murderous actions make the life offense for which he was convicted especially grave because they included his violent victimization of two women — resulting in his conviction for both murder and attempted murder and exceeding the minimum necessary to sustain a conviction for second-degree murder.’”
Release Factors
The justice noted that the statute governing parole cites the killing or wounding of multiple victims, as well as the fact that a crime was committed for a “very trivial” reason, as negative factors.
Citing Rosenkrantz, Willhite wrote:
“Because there is some evidence to support the Governor’s finding that two women were deliberately shot for trivial reasons, resulting in the attempted murder of one and the second degree murder of the other in the same incident, there is necessarily some evidence to support the conclusion that the murder of Silviera was ‘particularly egregious’....Therefore, the circumstances of the offense alone justify the Governor’s decision.”
Presiding Justice Norman Epstein and Justice Nora Manella concurred in the opinion.
Attorneys on appeal were Deputy Attorneys General Anya M. Binsacca and Amanda Lloyd for the state and Jeffrey Allan Lowe, a Beverly Hills lawyer appointed by the Court of Appeal, for Jacobson.
The case is In re Jacobson, B195521.
Copyright 2007, Metropolitan News Company