A 23-year-old man who was 13 when he killed an elderly San Luis Obispo resident with a skateboard will remain at a state hospital after a local judge ruled Gov. Jerry Brown had a right to reverse a parole board’s release recommendation.
In her 20-page ruling, filed two weeks ago, Superior Court Judge Linda Hurst denied a writ of habeas corpus filed by the killer, saying Brown also had reason to believe the offender currently poses a threat to society.
“The governor was free to conclude that despite years of treatment, petitioner remains unable to control his behavior and resorts to threats of murder,” Hurst wrote.
The offender — referred to in court only as “Roberto” — was 13 when he broke into 87-year-old Gerald O’Malley’s mobile home and bludgeoned him on Feb. 27, 2005. Afterward, he drew a cartoon devil on a blackboard in O’Malley’s home, then padlocked the front door before joyriding in the dead man’s vehicle.
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Roberto was convicted of murder and sentenced to 42 years to life in prison. But because he was under 14 at the time, he could only be sent to the state’s juvenile rehabilitation system and would have to be released by the time he turns 25, in December 2016.
In March 2014, the California Juvenile Parole Review Board voted unanimously to release him earlier, citing his coping skills, articulation of remorse, recent mental stability, participation in counseling sessions and support groups, along with a lack of serious misconduct since 2012.
But on April 7, 2014, just hours before Roberto’s release, Brown reversed that decision, saying he remained “deeply troubled” by the offender’s continued threats of significant violence. Some of those threats were detailed in a journal Roberto kept that mentioned violent fantasies — including an interest in becoming famous for high-profile violence. Brown also wrote that Roberto sent him an email with death threats.
When contacted by The Tribune, Jim Evans, Brown’s chief deputy press secretary, said the governor would have no comment on Hurst’s ruling.
After Brown reversed the parole board ruling, the Prison Law Office appealed on behalf of the offender, saying Proposition 89, which gave California’s governor the authority to reverse parole board decisions, did not apply to juvenile cases.
During a hearing in April, Corene Kendrick, an attorney with the Berkeley-based Prison Law Office, said juveniles aren’t even considered “convicted” or “sentenced” for crimes, as adult offenders are. Therefore, she argued, they are not subject to adult parole rules.
But Hurst said the 1988 ballot measure made clear that the governor’s power to reverse parole decisions would include all parole hearings, including juvenile ones. In fact, she wrote, a pre-election analysis of the proposition, prepared for voters by the impartial Legislative Analyst’s Office, clearly noted that, if passed, Proposition 89 would give the governor the power to reverse juvenile parole decisions.
“There is no doubt that voters were informed in the ballot pamphlet that the amendment gave the governor the power to reverse a parole decision and that this power included review of juvenile and adult parole board decisions,” Hurst wrote. “That is what the voters voted for.”
That analysis, approved by the secretary of state, was never challenged, Hurst wrote, even though the proposition itself was.
The measure passed with 55 percent of the vote.
Kendrick was out of state Wednesday and did not respond to an email sent by The Tribune. Roberto’s local attorney, Theresa Klein, also could not be reached.
Kendrick also claimed the governor based his decision in part on information obtained from the county probation department when he was only allowed to base it on the information presented to the parole board. She also charged that Brown did not have the evidence to suggest Roberto was currently dangerous.
But, Hurst ruled, every factor Brown cited had been presented to the parole board. And, she added, Brown based his decision on several factors that were backed by evidence.
While committed, Roberto allegedly told staff he felt no remorse for his victim and would re-offend, Hurst wrote. Roberto challenged that claim, but he refused to attend his parole hearing, which would have given him an opportunity to dispute it, the judge wrote.
Other evidence that Roberto remains a threat, Hurst wrote, include the journal he penned, the threat to the governor, fights while in juvenile detention and the “violent and brutal facts of the murder.”
The governor also rightly considered Roberto’s past mental health diagnosis, she wrote, which concluded that he has schizophrenia, post-traumatic stress disorder and bipolar disorder.
During the hearing on the matter two months ago, Hurst said her decision was likely to be appealed to a higher court no matter how she ruled.
Roberto was initially sent to the Southern Youth Correctional Reception Center but was later transferred to Patton State Hospital in San Bernardino County.
When the parole board voted to release Roberto, the District Attorney’s Office appealed to the governor to reverse the decision.
“The governor’s opinion was very well-reasoned,” said Deputy District Attorney Andrew Baird, who tried the case.
Some of Roberto’s actions during his commitment suggest he will continue to be a threat once released, Baird said.
And Roberto will certainly be released by December 2016, because juvenile courts can only hold offenders until they are 25.
“It’s obviously frightening,” Baird said.
At the same time, Baird added, Roberto has had periods of stability during his detention, and he has worked to better himself in apprentice programs.
“He has the capacity — if he wants — to stay out of trouble,” Baird said.