RAPE VICTIMS AND DUI VICTIMS ARE NOT ONE AND THE SAME

I believe that a rape victim has the right to request that a parolee who raped her be required to live at least 35 miles away from her home. But that’s not what we have in this case. I agree with the ruling of the two judges. Not allowing this parolee to live with his ailing mother would have punished the woman for her son's fatal PCP induced wreck.

35-MILE PAROLE BUFFER DOESN’T APPLY TO VICTIM’S NEXT OF KIN
By: Bob Egelko

San Francisco Chronicle
January 6, 2011

When a prisoner is paroled after serving time for a violent crime, California law allows the crime victim or a witness to ask the state for a buffer zone requiring the parolee to live at least 35 miles away. Prison officials invoked that law in 2010 to bar Terrance David from moving in with his ailing mother in Burbank, 26 miles away from the sister of a woman who was killed when David, while driving under the influence of PCP, slammed into her car in 1986.

But a state appeals court has now overturned the restriction and allowed David to stay in his mother’s home and take care of her after spending 21 years in prison for two counts of second-degree murder. In a 2-1 ruling Friday, the Second District Court of Appeal in Los Angeles said the law’s definition of “victims” doesn’t include next of kin, and its application in a case like this one would make no sense.

The parole board has independent authority to impose conditions on newly released inmates to protect the public and might have reasonably prohibited David from living in or near the same community as the victim’s sister, said Justice Richard Mosk in the majority opinion. But he said Burbank was an entirely separate community many miles away from Lynwood, where the sister lives, and the chances of any contact between them are remote.

The residence restriction “has no relationship to (David’s) crime and will not deter future criminality,” Mosk said. “It does not bear on the safety of the victim’s family. And, because of the distance involved, it does not reasonably affect their well-being.”

In dissent, Sanjay Kumar, a Los Angeles Superior Court judge temporarily assigned to the appeals court, accused the majority of rewriting the law and contributing to the mental anguish of the victim’s sister.

David had two previous convictions for driving while intoxicated when he ran a stop sign at 80 mph in November 1986 and broadsided a car driven by Lavell Hunter, killing Hunter and his fiancee, Gladys Coral. Convicted of murder in 1989, he was denied parole six times before the Board of Parole Hearings approved him for release in July 2010.

At the parole hearing, the court said, David expressed remorse and apologized to the victims’ families, and Coral’s sister, Elizabeth, said she and her family had forgiven him. But she later asked prison officials to prohibit him from residing wihtin 35 miles of her, to protect her — as a parole agent described it — from “living in fear and under the stress of knowing that (he) lives in her community.” The Department of Corrections and Rehabilitation granted the request, as it generally does in such cases, but court orders allowed David to move in with his mother while he appealed the decision.

In Friday’s ruling, Mosk said the law authorizing the 35-mile buffer zone, passed more than 20 years ago, refers to a request by a “victim or witness” whose safety or well-being is at risk. Unlike other victims’-rights laws, he said, it does not mention a victim’s next of kin.

Even if his victim’s sister was covered by the law, Mosk said, there is no evidence that David posed any threat to her safety or well-being. Those criteria would be meaningless, he said, if they included “the understandable anguish of a victim’s family member,” which is present in virtually every case.

Kumar, in dissent, said the Corrections Department found that the buffer was needed to protect the well-being of Elizabeth Coral, who testified that she is still in pain from her sister’s death.

David’s lawyer, Richard Pfeiffer, said the ruling would affect many other cases, because prison officials “routinely” order such restrictions without evidence that a parolee poses a threat to a victim’s family. He said David, a young man who used drugs and drove recklessly before his conviction, behaved well in prison and is now attending law school and getting top grades.