In re Ledbetter

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Filed 12/22/09 In re Ledbetter CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
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IN RE RANDY LEDBETTER ON HABEAS CORPUS C060498
(Super. Ct. No. 103365)
In 1989, when defendant Randy Ledbetter was 16 years old, a
jury convicted him of attempted first degree murder, robbery,
and first degree burglary. The jury also found, as to the
attempted murder, that defendant inflicted great bodily injury
on the victim. He was sentenced to a term of life with
possibility of parole for the attempted murder plus a
determinate term of five years, four months for the robbery and
burglary.
On November 14, 2007, at defendant‟s sixth hearing before
the Board of Parole Hearings (Board), the Board found defendant
unsuitable for parole because he posed an unreasonable risk of
danger to the public if released. The reasons cited by the
Board were defendant‟s unstable social history, his questionable
sincerity in claiming that he was now taking full responsibility
for the crime, and the aggravated circumstances of the attempted
murder.

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On August 5, 2008, defendant filed a petition for writ of
habeas corpus in the Butte County Superior Court seeking
reversal of the Board‟s ruling. On November 18, the trial court
(Judge Robert A. Glusman) granted the petition, finding that no
evidence supported the Board‟s finding that defendant was
currently dangerous. The court directed the Board to set a
parole date and to release the defendant forthwith. On
November 26, the People filed a notice of appeal from, and a
request for a stay of, the trial court‟s orders. On December 1,
we granted the stay pending further order by this court.
The People contend that reversal of the trial court‟s order
is required because the record contains “some evidence”
supporting the Board‟s finding of unsuitability for parole, and
that even if there was no such evidence, the remedy was remand
for further consideration rather than ordering the Board to set
a parole date and to immediately release defendant. We shall
affirm the trial court‟s granting of the petition, but shall
remand the matter to the Board with directions.
THE BOARD‟S DUTIES
For defendants sentenced to an indeterminate term with the
possibility of parole, as is the case here, the Board is
required to set a parole release date unless the Board
determines that the defendant is unsuitable for parole because
he is an unreasonable risk of danger to society if released.
(Pen. Code, § 3041, subds. (a), (b); Cal. Code Regs., tit. 15,
§ 2402, subd. (a), undesignated section references are to title

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15 of the California Code of Regulations.) In determining a
defendant‟s suitability for release, the Board is required to
consider both the general and specific circumstances set forth
in section 2402. (§ 2402, subd. (a); In re Rosenkrantz (2000)
80 Cal.App.4th 409, 425, disapproved on other grounds in In re
Rosenkrantz (2002) 29 Cal.4th 616, 679.)
The general circumstances consist of “[a]ll relevant,
reliable information available to the panel” including “the
prisoner‟s social history; past and present mental state; past
criminal history, including involvement in other criminal
misconduct which is reliably documented; the base and other
commitment offense, including behavior before, during and after
the crime; past and present attitude toward the crime; any
conditions of treatment or control, including the use of special
conditions under which the prisoner may safely be released to
the community; and any other information which bears on the
prisoner‟s suitability for release. Circumstances which taken
alone may not firmly establish unsuitability for parole may
contribute to a pattern which results in a finding of
unsuitability.” (§ 2402, subd. (b).)
Specific circumstances tending to show unsuitability
include, as is relevant here, that the offense was committed in
“an especially heinous, atrocious or cruel manner” (§ 2402,
subd. (c)(1)); that the defendant has an unstable social history
(§ 2402, subd. (c)(3)), and that the defendant has engaged in
serious misconduct in prison or jail (§ 2402, subd. (c)(6)).

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Specific circumstances favoring suitability include, again
as is relevant here, lack of a juvenile record, (§ 2402, subd.
(d)(1)); signs of remorse (§ 2402, subd. (d)(3)); lack of a
history of violent crime (§ 2402, subd. (d)(6); plans for
release including development of marketable skills (§ 2402,
subd. (d)(8)); and activities which indicate an enhanced ability
to function within the law upon release (§ 2402, subd. (d)(9)).
TRIAL AND APPELLATE COURT REVIEW OF THE BOARD‟S DETERMINATION
THAT DEFENDANT LACKS SUITABILITY FOR PAROLE
“[T]he Board or the Governor may base a denial-of-parole
decision upon the circumstances of the offense, or upon other
immutable facts such as an inmate‟s criminal history, but some
evidence will support such reliance only if those facts support
the ultimate conclusion that an inmate continues to pose an
unreasonable risk to public safety. [Citation.]” (In re
Lawrence (2008) 44 Cal.4th 1181, 1221.) “[W]hen a [trial or
appellate] court reviews a decision of the Board or the
Governor, the relevant inquiry is whether some evidence supports
the decision of the Board or the Governor that the inmate
constitutes a current threat to public safety, and not merely
whether some evidence confirms the existence of certain factual
findings. [Citations.]” (Id. at p. 1212.) Where, as here, the
trial court grants habeas corpus relief without an evidentiary
hearing, the question is one of law which we review de novo.
(In re Lazor (2006) 172 Cal.App.4th 1185, 1192; In re Zepeda
(2009) 141 Cal.App.4th 1493, 1497.)

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EVIDENCE REGARDING THE BOARD‟S FINDING OF FACTORS OF
UNSUITABILITY
The Facts of the Commitment Offense
In 1989, defendant, who was 16 years old, homeless and
working as a male prostitute, was taken off the streets by Ernie
Glenn who provided defendant with room, board and a job at
Glenn‟s ranch in Butte County.1 Glen Russell, who was “around
23” years old, and Charles Vogt also lived and worked at the
ranch, as did some others. At some point, defendant and Russell
entered into a plan to steal items from Glenn, sell them and go
to Hawaii.
On July 3, 1989, while Glenn and the others were away from
the ranch, defendant and Russell decided to implement their
plan. Vogt, however, had remained at the ranch. Knowing that
Vogt would not go along with their plan, defendant and Russell
decided to knock Vogt unconscious, handcuff him, and then
burglarize Glenn‟s residence. While all three were together in
a cabin, defendant struck Vogt from behind with a wrench, but
Vogt did not lose consciousness. Russell threw Vogt to the
floor and defendant and Russell kicked and beat him.
During the beating, Russell straddled and handcuffed Vogt,
grabbed Vogt‟s hair, “yanked up,” and told defendant to cut
Vogt‟s throat. Defendant first stabbed Vogt in the back of the
1 While living at the ranch, defendant was going by the name of
Vince Malono; however, after his arrest in this case, he
informed the officers that his name was Randy Ledbetter and that
he was a minor. He was found unfit for juvenile court and tried
as an adult.

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neck, then he cut Vogt‟s throat. Because there was a lot of
blood, defendant believed Vogt was dead. Defendant and Russell
then burglarized Glenn‟s residence.
Still believing that Vogt was dead, defendant and Russell
returned to the room and took Vogt‟s wallet. A short time
later, defendant again returned to the room, this time to obtain
keys to a van to facilitate their escape. However, Vogt was not
only still alive, but he now had a rifle which he pointed at
defendant, who immediately fled.
Vogt made it to a neighbor‟s home and the sheriff‟s
department was called. A few hours later, the officers found
defendant and Russell walking down a nearby road and took them
into custody.
We shall have more to say about how the facts of the
offense affect the decision whether to grant parole.
Defendant‟s Unstable Social History
The Board found defendant had an unstable social history
based upon his “transitory lifestyle,” truancies, runaways, and
teen prostitution. The evidence established that in his
childhood defendant lived with his mother who was in the
military; they moved to Italy, Germany, England and back to the
United States; and defendant admitted becoming increasingly
truant, out of parental control, drinking alcohol at 14, smoking
marijuana at 15, running away and engaging in prostitution for
about a month.

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Although the factors cited by the Board are adequately
supported by the evidence, the factors themselves do not
establish an unstable social history. Section 2402, subdivision
(c)(3), defines “Unstable Social History” as one where “[t]he
prisoner has a history of unstable or tumultuous relationships
with others.” Aside from the instant offense, there is no
evidence in defendant‟s record of “unstable or tumultuous
relationships with others.”2 Indeed, while the factors cited by
the Board establish turmoil and upheaval in defendant‟s youth,
they do not establish any relationship at all with others, let
alone relationships that are unstable and/or tumultuous. (See,
for example, In re Roderick (2007) 154 Cal.App.4th 242, 268
[factors of being raised by grandmother and dropping out of
school in 11th grade, and continuing criminal activity during
20-year marriage do not provide evidence of unstable social
history or tumultuous relationships “with others”]; In re DeLuna
(2005) 126 Cal.App.4th 585, 595 [even where the evidence shows
consumption of alcohol contributed to the defendant‟s criminal
activities, such circumstance does not in and of itself show
instability or tumultuous relationships with others].)
2 “Tumultuous” means: “1. marked by a tumult: full of commotion
and uproar . . . 2. tending or disposed to cause or incite a
tumult . . . 3. marked by violent or overwhelming turbulence or
upheaval.” (Webster‟s 3d New Internat. Dict. (1981) p. 2462.)
“Tumult” means: “3a: violent agitation of mind or feelings;
highly disturbing mental or emotional excitement or stress
. . . .” (Ibid.)

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Additionally, the record is devoid of evidence that
defendant experienced any on-going or difficult relationships
with other prisoners or prison staff. In fact, the panel noted
both that defendant had “maintained Medium A custody” which is
“the lowest custody you can have as a life term prisoner without
a parole date” and that he had “no enemies” or “gang
affiliations.”
Consequently, we conclude there is no evidence supporting
the Board‟s finding that defendant had an unstable social
history.3
Board‟s Uncertainty that Defendant Accepted
Responsibility for the Crime
The Board is to consider a defendant‟s “past and present
attitude toward the crime” in determining parole suitability.
(§ 2402, subd. (b).) Defendant claimed that he had now taken
full responsibility for his part in the attempted murder, a
circumstance which, if true, would favor parole. (§ 2402, subd.
(d)(3) [defendant “understands the nature and magnitude of the
offense”].)
During the instant Board hearing, defendant admitted that
in his early years of incarceration he repeatedly lied about the
extent of his involvement in the attack on Vogt. His lies
3 Even if any of the foregoing factors, singly or in combination,
could be stretched to find an unstable social history, we would
conclude that there is no conceivable, rational inference which
could be drawn between such long-ago and relatively benign
events and a prediction of defendant‟s current dangerousness.

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ranged from claiming that it was Russell who cut Vogt‟s throat
to having committed the offense because he was under the
influence of heroin and alcohol when he aided Russell in the
attack on Vogt. Defendant also admitted that he lied when he
claimed that he had been talked into having sex with Glenn and
had been molested by his babysitter. Defendant said that he
told these lies “to avoid the consequences of what [he] had
done” and to minimize his punishment.
However, defendant insisted that starting in 1999 he had
consistently told the truth and taken full responsibility for
his part in the attempted murder, specifically admitting that he
had struck Vogt from behind with a wrench, stabbed Vogt in the
back of the neck, and cut Vogt‟s throat, all of which was done
while defendant was not under the influence of alcohol or drugs.
The Board observed that defendant‟s “past and present
versions and attitude towards the crime” bore “significantly” on
his suitability for parole. The Board stated: “I‟m not sure if
we‟re getting the truth as it should be or is this an evolution
of layers of falsehoods spun to satisfy the Panel today. But we
would like to believe that you have made progress, but we‟re
just not real sure if this is the truth. And if it is, it‟s
been a long time coming and it is recent. [¶] . . . [¶] So, this
Panel looks at your gains as recent . . . . And it wasn‟t until
after [2002] that you started saying I take full responsibility.
. . . So that‟s relatively recent . . . .”

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Defendant argues that, contrary to the People‟s position,
the Board “did not deny parole based on the alleged falsity of
[defendant‟s] testimony . . . , but because it felt his „gains,‟
i.e., his acceptance of responsibility, was too „recent.‟”
We do not read the record so narrowly. What the Board said
was that because of defendant‟s repeated lying about the extent
of his involvement in the crime, the Board was unsure whether
defendant was now truthful in his claim of acceptance of
responsibility. But even if defendant was now being truthful,
which only he could know for certain, the recency of his
acceptance still left the matter in doubt.
Notwithstanding this difference in interpretation, we
nevertheless conclude that the evidence does not support the
Board‟s failure to credit defendant with this favorable factor.
That defendant had taken full responsibility for the crime
since at least August of 2000 is documented by the reports of
mental health experts who evaluated him for the various Board
hearings. Specifically, that defendant had admitted hitting
Vogt with a wrench and cutting his throat was reported by Dr.
William O. Evans in 2000, by Dr. John R. Bellinger in 2003, by
Dr. Meredith B. Smith in 2005, and again by Dr. Smith in 2007.
The instant Board hearing was in November 2007. Thus,
defendant had been taking full responsibility for the offense
for over eight years when the Board refused to credit him with
accepting responsibility for the crime. This eight years of
consistency, coupled with the opinions of the mental health

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professionals who evaluated and accepted defendant‟s sincerity,
renders unreasonable the Board‟s refusal to credit defendant‟s
acceptance of responsibility for the offense.
Defendant‟s Institutional Behavior
A defendant‟s institutional behavior is a circumstance
unfavorable to parole when the defendant has “engaged in serious
misconduct in prison or jail” (§ 2402, subd. (c)(6)); it is
favorable when the defendant‟s “[i]nstitutional activities
indicate an enhanced ability to function within the law upon
release” (§ 2402, subd. (d)(9)).
Evidence of defendant‟s negative behavior is the following:
Defendant was committed to the California Youth Authority (CYA)
-- now the Department of Juvenile Justice -- in December 1989.
In 1991, he escaped, making “it outside the fence and about two
blocks down the street.” He was transferred to adult prison in
November 1991. There he accumulated six section
115 write-ups -- failure to report to work, attempted suicide,
manufacture of pruno, twice refusing to work, and failure to
report to job assignment. The last section 115 write-up was in
1998. He also received eight section 128 write-ups -- not
obeying orders, twice failing to report, possession of
contraband, absent from work, unauthorized property, cell
standards, and out of bounds. The last section 128 write-up was
on June 11, 2004.
Defendant‟s positive behavior was evidenced by his
successful completion of programs offered by Narcotics

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Anonymous, Alcoholics Anonymous, stress management, life skills,
coping skills, anger management, and victim awareness. He
earned an Associate of Arts degree from Palo Verde College where
he also made the Dean‟s list, and he received vocational
certificates in dry cleaning, computer services technician,
electronics technician, information technology, and data
processing. He participated in, but has not completed, training
in carpentry.
Aside from defendant‟s inept escape at CYA, he has no
“serious misconduct” while incarcerated. Indeed, the panel
recognized as much when it noted that, even including
defendant‟s section 115 and 128 write-ups, “As to your
institutional behavior, you have programmed well.”
Consequently, this circumstance favors suitability for parole.
No Juvenile Record
A prisoner is considered having no juvenile record where
“[t]he prisoner does not have a record of assaulting others as a
juvenile or committing crimes with a potential of personal harm
to victims.” (§ 2402, subd. (d)(1).) Aside from committing the
instant assault when he was a minor, defendant has no such
juvenile record.
Lack of Criminal History
This favorable circumstance applies where “[t]he prisoner
lacks any significant history of violent crime.” (§ 2402, subd.
(d)(6).) Again, aside from the committing offenses, there is

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nothing in the record reflecting any violent crime, let alone a
significant one.
Defendant‟s Post-Release Plans
A circumstance favoring release exists where “[t]he
prisoner has made realistic plans for release or has developed
marketable skills that can be put to use upon release.” (§
2402, subd. (d)(8).) As previously set forth, these marketable
skills are receiving an associate arts degree from Palo Verde
College and obtaining certificates in dry cleaning, silk
screening, data processing, information technology, and computer
services.
Additionally, Ronald Reed, the attorney who represented
defendant in juvenile court prior to his being found unfit, has
offered defendant housing and full time employment in a
commercial development that he and his sons own. The Board also
had before it a letter from Dr. Voss, a marriage and family
therapist, offering outpatient counseling to defendant. The
Board found these plans “adequate.”
Butte County District Attorney‟s Letter
The Butte County District Attorney‟s office provided a
letter, dated November 6, 2007, opposing a finding of
suitability. Factors cited were the aggravated circumstances of
the offense, the “number of rule violations [and] chronos
[defendant had] received,” his escape from CYA, and the
inconclusiveness of Dr. Smith‟s psychological reports in
assessing defendant‟s risk if released. Aside from the letter‟s

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opposition to defendant‟s being paroled, the letter neither
contained any information which was not before the Board nor any
recognition of defendant‟s achievements while incarcerated nor
analysis as to why defendant was currently dangerous.
Aggravated Nature of the Commission of the Offense
A circumstance favoring unsuitability, and the one relied
on primarily by the Board, is that “[t]he prisoner committed the
offense in an especially heinous, atrocious, or cruel manner.”
(§ 2402, subd. (c)(1).) We have recounted the facts above.
Ample evidence supports the Board‟s finding that the
attempted murder was carried out in an especially heinous,
atrocious and cruel manner, and defendant does not contend
otherwise.
However, “[T]he aggravated nature of the crime does not in
and of itself provide some evidence of current dangerousness to
the public unless the record also establishes that something in
the prisoner‟s pre- or postincarceration history, or his or her
current demeanor and mental state, indicates that the
implications regarding the prisoner‟s dangerousness that derive
from his or her commission of the commitment offense remain
probative of the statutory determination of a continuing threat
to public safety.” (In re Lawrence, supra, 44 Cal.4th at p.
1214.)
In addition to the many institutional programs completed
and the vocational certificates obtained by defendant, the
mental health professionals who examined him over the past eight

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years consistently rated his current dangerousness from being no
more dangerous than the average person on the street to
virtually nonexistent.
Thus, in March 1998, Dr. William O. Evans, Ph.D. wrote:
“Inmate Ledbetter presents as an essentially changed individual
based on his previous psychiatric and psychological
evaluations.” “Once in a while, the system works, and CDC
should be proud of its own extensive use of resources in this
inmate‟s behalf.” “[H]e is a low recidivism risk . . . [and]
[h]is current dangerousness is considered almost nonexistent.”
In August 2002, Dr. Evans opined that while defendant had
remained discipline free for approximately two years, Dr. Evans
recognized that it would take “a number of years before the
Board of Prison Terms would take his improvement seriously.”
However, Dr. Evans also noted, “He seems to have experienced
some sort of a turn around, a somewhat realistic epiphany
concerning reality.”
In January 2003, Dr. John R. Bellinger assessed defendant‟s
dangerousness as having “no identifiable risk factors, at this
point, which could lead to violent behavior.”
In June 2005, Dr. Meredith Smith stated that while “[i]t is
impossible to predict with scientific certainty that any
individual will or will not reoffend . . . . [¶]. . . [¶] . . .
[i]f he were released into the community he would be expected to
present no greater risk than the average citizen.”

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In March 2007, Dr. Smith wrote, “Mr. Ledbetter does not
present a risk to the public. There are no psychological
factors that would adversely affect his release. He is expected
to be able to sustain a successful parole and adequately adjust
back into a free society. Participation in Alcoholic and
Narcotics Anonymous self help programs and individual and family
therapy are recommended as additional supports when released.”
In an addendum to her previous report, prepared in
September 2007, Dr. Smith reviewed defendant‟s plans if released
and concluded, “There is every indication that he will be a
productive member of a free society if released. [¶] . . . [¶]
[And] [h]e is to be considered a good candidate for release.”
Aside from defendant‟s single instance of violence
committed when he was 16 years old, he has no record of violence
in or out of prison. The mental health professionals who have
evaluated him for the past eight years have found the risk of
his current dangerousness if released as nearly nonexistent or,
at the least, no more than would be expected of the average
person on the street. Notwithstanding defendant‟s accumulation
of sections 115 and 128 write-ups, the last of which occurred in
2004, the Board noted that during the time of his incarceration
he had programmed well, a conclusion clearly evidenced by the
certificates he had obtained, his degree from Palo Verde
College, and his participation in and completion of the many
programs offered by the institution.

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In sum, and in accordance with the requirement of Lawrence,
supra, 44 Cal.4th 1181, the record fails to establish anything
in defendant‟s “pre- or postincarceration history, or his [ ]
current demeanor and mental state” that indicates that the
circumstances of the commitment offense remain “probative of the
statutory determination [that he is] a continuing threat to
public safety.” (Id. at p. 1214.) Consequently, the Board
erred in finding defendant unsuitable for parole.
REMEDY
On November 14, 2007, defendant was entitled to have the
Board set a date for his release on parole and, pursuant to
Penal Code section 3053, subdivision (a), to consider what, if
any, conditions should be imposed.4 Because the Board
erroneously determined defendant was not suitable for parole, it
of course did not set any conditions for the parole. Remand is
therefore required for this purpose.
DISPOSITION
The Butte County Superior Court‟s granting of defendant‟s
petition for writ of habeas corpus and its order directing the
Board of Parole Hearings to set a date for defendant‟s release
on parole are affirmed. The Butte County Superior Court‟s order
directing the Board of Parole Hearings to release defendant
4 Penal Code section 3053, subdivision (a) states: “The [Board
of Parole Hearings] upon granting any parole to any prisoner may
also impose on the parole any conditions that it may deem
proper.”

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forthwith is vacated, and the matter is remanded to the Board of
Parole Hearings to set a parole date and to determine what, if
any, conditions should be placed on the parole. The stay issued
by this court on December 1, 2008, is vacated upon this
opinion‟s finality.
SIMS , J.
We concur:
SCOTLAND , P. J.
BUTZ , J.

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