Court of Appeal:
Writ of Habeas Corpus Granted in That Case Though Defendant Has Been Paroled, as Well As in Unrelated Case Where Woman, Convicted of Murdering Her Three Children by Setting House on Fire, Was Also Freed
By a MetNews Staff Writer
Confining a first-degree murderer in prison for nearly 49 years constituted cruel and unusual punishment, Div. Two of the First District Court of Appeal has held, granting a petition for a writ of habeas corpus, even though the convict has already been released on parole.
He remains in “constructive custody,” by virtue of being on parole, the panel said, in explaining why his petition is not moot. Div. One of this district’s Court of Appeal provided the same reason for considering the habeas corpus petition—which it denied—of JoAnn Parks, convicted of the first-degree murder of her three children in 1989 by setting the family home on fire, and granted clemency last year by Gov. Gavin Newsom and, following a Parole Board hearing, released on Jan. 21, after 29 years in prison.
Presiding Justice Frances Rothschild explained in a footnote in Parks’s case:
“While Parks’s petition was pending in the California Supreme Court, Governor Gavin Newsom issued an order commuting Parks’s sentence. Because Parks was in custody at the time she filed her habeas petition, and remains in constructive custody even after her release on parole, the habeas corpus custody requirement is satisfied.”
The California Supreme Court, in response to a petition filed in that court, last Nov. 24 issued an order to show cause why Parks should not be released, returnable in the Court of Appeal. That court decided yesterday that modern scientific techniques for determining the cause of fires do not establish that “false evidence” was presented at her trial in 1992-93.
First District Opinion
In the First District case, the court directed that slayer Don C. Wilson be discharged from supervised parole upon finality of its unpublished opinion, filed late Monday, with finality set at 10 days from issuance rather than the usual 30 days. Justice James Richman was the author.
Wilson was sentenced in 1972 to up to life imprisonment under the Indeterminate Sentencing Law (“ISL”), which came to be supplanted by the Indeterminate Sentencing Act of 1976 (“ISL”). Under which the ISL, the Adult Authority released a prisoner when he was deemed to have been rehabilitated and, Richman pointed out, a murderer was then typically set free on parole “after serving slightly more than 12 years.”
His opinion, which does not detail the facts of the crime other than to say that there was a firearm enhancement, recites that Wilson, despite tentative determinations as to eligibility for parole, repeatedly had his bids for being freed denied, until his most recent one. It recounts that this was apparently based on Wilson’s aggressiveness and his unwillingness to admit guilt.
“But now, recent statutory changes worked to benefit petitioner,” Richman said.
Benefits of Statutes
He noted that Wilson is presently regarded, statutorily, as a “youthful offender” because he committed his crime before the age of 25 and has not run afoul of the law since, and is thus entitled to have his lack of maturity when he committed his offense taken into consideration, and also comes under the Elderly Parole Program, mandating deference to inmates 50 or older who have been incarcerated for 20 years or longer.
“With the benefit of these new statutory lenses,” Richman said, “we conclude that the totality of petitioner’s ISL term must be classified as constitutionally excessive.”
He elaborated: “Petitioner was 26 years and three months old when he was ‘received’ by the Department of Corrections on November 24, 1972. He was four months shy of his 75th birthday when he was released on April 28, 2020, subject to three years of parole. That would make his total ISL term 51 years and six months, of which he has served all but the 23 remaining months of parole. Whether evaluated under the ISL or the DSL, we conclude that the more than 49 years he has already served are constitutionally excessive.”
Richman drew attention to Wilson’s individual circumstances but did not delineate the extent to which those circumstances, rather than the total length of confinement, affected the outcome.
He said Wilson “entered prison as an angry young man” but “left it considerably mellowed” and “burdened by numerous physical afflictions.” The justice continued:
“Although he had his share of disciplinary infractions, he educated himself and committed no new criminal offense. So far as the record shows, he has done nothing to violate his parole since release.”
Petition Not Moot
The fact that Wilson is no longer in prison, Richman said, “clearly moots his claim for his ‘immediate release from prison,’ just as it does his complaint that ‘decades ago when the Board found him suitable for parole’ and his fear that the Governor might block his release.” These factors, he acknowledged, “would ordinarily suggest that this proceeding is moot” but, he wrote, it isn’t.
He explained that under the ISL—unlike the DSL where a term of parole is in addition to the stint in prison— “the time spent in prison and the time spent on parole together comprised a single term,” set by the Adult Authority.
Wilson is, accordingly, still serving his “term” while on parole, Richman said, and given that his “excessive punishment claim is meritorious,” he must “be freed from the constructive restraint of his remaining period of parole.”
(Parks was sentenced under the DSL, yet Rothschild found that habeas relief was available.)
“[W]e conclude that 51 years of actual and constructive custody is so disproportionate to petitioner’s individual culpability as to be constitutionally excessive for the sole act of criminal violence he committed in 1972.”
The case is In re Wilson, A158320.
Sought Governor’s Testimony
Wilson was the lead plaintiff in an action challenging conditions at San Quentin State Prison. The plaintiffs’ lawyers served a notice on then-Gov. George Deukmejian, now deceased, requiring him to appear at the trial to testify.
Then-Marin Superior Court Judge Beverly B. Savitt, now retired, denied Deukmejian’s motion to quash.
Div. Three of the First District Court of Appeal on June 3, 1983, granted a writ of mandate requiring the trial court to quash the notice because the prisoners had “made an insufficient showing of need for the Governor’s testimony.”
Presiding Justice Clinton W. White, since deceased, wrote:
“We note a disturbing undercurrent in the argument presented by real parties and accepted by the court. It is assumed that the court may call the Governor ‘on the carpet,’ or at least compel him to work in a committee-like atmosphere with the court in order to solve prison problems. We disapprove such a blurring of the lines separating judicial and executive authority.”
In Parks’s case, Lawyers for California Innocence Project argued that Penal Code §1473(b) applies. It authorizes the granting of habeas relief where it is shown that a conviction was based on false evidence.
In 2017 and 2018, Los Angeles Superior Court Judge William C. Ryan conducted an evidentiary hearing in response to a habeas corpus petition. Testimony was presented by experts on the causation of fires, including conclusions based on methods that did not exist at the time of trial.
Ryan found that the requisite showing was not made. Rothschild agreed. What Ryan heard, she said, was simply the same debate between experts a jury heard earlier, though updated. “Such a debate does not establish that false evidence was offered at trial,” she said, and evidence does not establish that, in the words of the statute, testimony at trial has been “undermined by later scientific research or technological advances.”
The presiding justice commented:
“Parks included in her supporting evidence studies reflecting that the types of issues she argues tainted the Bell fire investigation are common in investigations of that time period, and have led to the reversal of numerous arson convictions, many of which she cites in her petition. With our decision today, we do not intend to dispute that there have been great improvements in fire investigation methods, or to deny that advances have been made in the understanding of how fire behaves and how to interpret burn patterns. The salient question for purposes of Parks’s petition, however, is not a general one regarding the relative state of fire investigation science in at the time of trial and now.”
“ ‘False evidence’ under section 1473 is defined by the role of an improved science or technology in the expert opinion at issue; relief under that statute also depends on the role such testimony played in a particular case. Thus, that the advances in fire investigation science Parks cites in her petition have led courts in other cases to conclude expert testimony in those cases constituted false evidence does not dictate the outcome of the instant petition. For this same reason, our denial of Parks’s petition does not suggest that these same advances in science might not support a successful habeas petition under different facts, depending, as section 1473 instructs, on the effect of the changes on the testimony at issue and the totality of the evidence presented at trial.”
The case is In re Parks, B296998.
Parks was sentenced on Feb. 26, 1993, to life in prison without possibility of parole. In granting clemency, Newsom said:
“Ms. Parks was convicted of a serious crime that took the lives of her three young children. Since then, Ms. Parks has taken the necessary steps toward self-improvement. I have carefully considered and weighed the evidence of Ms. Parks’s positive conduct in prison and her good prospects for successful community reentry. I have concluded that Ms. Parks merits the opportunity to make her case to the Board of Parole Hearings so it can determine whether she is suitable for parole.
“This act of clemency for Ms. Parks does not minimize or forgive her conduct or the harm it caused. It does recognize the work she has done since to transform herself.”
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