Crime

Killer who attacked 87-year-old with skateboard should be paroled, attorney says

In this March 2005 photo, a San Luis Obispo police officer walks past the home of Gerald O'Malley, who was found dead inside by police.
In this March 2005 photo, a San Luis Obispo police officer walks past the home of Gerald O'Malley, who was found dead inside by police. jjohnston@thetribunenews.com

Gov. Jerry Brown did not have the authority to reverse the parole of a juvenile ward who beat an elderly man to death with a skateboard when he was 13, an attorney for the ward argued Monday.

But an attorney for the Attorney General’s Office countered that California residents gave the governor the right to reverse parole decisions in a voter initiative more than 25 years ago.

“The initiative represents one of the most precious rights of our democratic process,” said Rachel Campbell, a deputy attorney general.

Because the now-23-year-old ward was a juvenile when he committed the crime, Superior Court Judge Linda Hurst ordered that he only be referred to by his first name — Roberto.

On Feb. 27, 2005, Roberto bludgeoned Gerald O’Malley, 87, with a skateboard inside O’Malley’s San Luis Obispo home. After he was convicted of murder, the boy was sent to the Southern Youth Correctional Reception Center and later transferred to Patton State Hospital in San Bernardino County.

As a result of his conviction, he could remain in custody of the state’s juvenile justice system until he turns 25 — in December 2016.

But in March 2014, the California Juvenile Parole Review Board unanimously voted for his release based on recent progress while in custody. On April 7, 2014, just hours before Roberto was set to be released, Brown reversed the decision, writing, “I remain deeply troubled by his continued threats of significant violence.”

Attorneys for the offender appealed that decision with a petition to the San Luis Obispo Superior Court. The hearing was originally intended to be closed to the public, but The Tribune sought and gained access.

Roberto, still looking like a teenager, appeared in court, alongside three attorneys as members of his family sat in the audience. The Attorney General’s Office represented Brown.

Corene Kendrick, an attorney with the Prison Law Office in Berkeley, argued that Brown’s authority to reverse parole hearings does not apply to minors. She also maintained that Brown did not show Roberto is currently a risk to public safety and that Brown wrongly based his decisions on county probation reports instead of evidence presented to the parole board.

Unlike adult inmates, Kendrick said, juveniles are not prisoners subject to the same parole rules. They are not even considered sentenced for crimes.

“It is a commitment,” she said.

Campbell, however, argued that Proposition 89, approved by 55 percent of the voters in 1988, gives the governor broad authority to reverse parole decisions — and that it did not limit the power to adult cases. The governor made his decision based on facts presented to the parole board, she added, and he did establish that Roberto currently posed a threat.

While in custody, Campbell said, Roberto hacked into computers and sent Brown a threatening message, saying, “I will shoot you with a real gun.” That threat, like the murder, she said, was done to impress the ward’s friends.

The offender also had a journal that mentioned violent fantasies, she noted. According to Brown’s written reversal, the journal included “many references to violence, veiled threats regarding a possible attack, lists of pistols, rifles, machine guns, explosives, and tactical gear, an interest in fame, violence and ‘media violence.’ ”

A disciplinary report from the California Division of Juvenile Justice, the governor wrote, described the journal as “ideation that violence will fulfill his destiny.”

Hurst continued the hearing on the petition so that she could review transcripts from the parole hearing. She did not give a date for the next hearing.

Regardless of her decision, she said in court, an appeal is likely.

When Hurst asked Roberto how he was doing, he responded, “It’s going really well,” and said he had been in an apprentice program.

The parole board’s decision to grant him parole was based in part on his coping skills, articulation of remorse, recent mental stability, participation in counseling sessions and support groups, and a lack of serious misconduct since 2012.

Citing the fantasies and threats, Brown said he wasn’t convinced that the offender has the emotional development and maturity to ensure public safety.

“These recent actions demonstrate a deeply disturbed pattern of thinking that I am not willing to set aside after only a few months of therapy and good behavior,” he wrote.

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