Skateboard Killer|Pleads for Release

SAN LUIS OBISPO (CN) - Nine years after a 13-year-old beat an elderly man to death with a skateboard, a parole board said the killer was ready to re-enter society - but Gov. Jerry Brown objected.

Less than two days before Roberto H. was due to be released from detention, Brown blocked it, citing the severity of the crime, his violent fantasies afterward and an email threat the ward of the state allegedly sent to the governor from a state hospital.

Roberto H., now 23, might be released if his attorneys can show the governor exceeded his authority.

The ward of the state is referred to as Roberto H. because he was a juvenile at the time of his offense.

In a Superior Court hearing this week, his attorneys argued that a voter proposition that gives the governor power to reverse parole board decisions does not apply to minors. They also claimed that Brown used the wrong criteria to make his decision.

But Rachel Campbell, a deputy attorney general, said the ward's counsel is on a meritless "fishing expedition" to find anything that might set Roberto free.

After gaining entry to Gerald O'Malley's mobile home on Feb. 27, 2005, Roberto repeatedly bashed the 87-year-old Army veteran's head with a 2½-pound skateboard, shattering the man's skull, according to trial testimony.

After the murder, at least 10 other children knew of the crime - some having peeked through a window to see O'Malley's corpse - but kept it secret, according to contemporary news reports.

Because he was younger than 14, Roberto could not be tried as an adult.

During his juvenile trial, his attorneys argued that he had a low IQ resulting from brain damage.

He was convicted of first-degree murder and sent to Southern Youth Correctional Reception Center and Clinic in Norwalk, but due to mental health issues was transferred to Patton State Hospital in San Bernardino County.

He could remain in custody of the state's juvenile justice system until he is 25. But in March 2014, the California Juvenile Parole Review Board unanimously voted for his release, citing articulation of remorse, recent mental stability, participation in counseling sessions and support groups and lack of misconduct.

The San Luis Obispo County District Attorney's Office, which fought the release, quickly appealed to the governor.

Around 8:30 p.m. on April 7, 2014, less than two days before Roberto was to be released, Brown reversed the parole board.

"I remain deeply troubled by his continued threats of significant violence," Brown wrote. The nature of the crime itself, the governor said, was "particularly vicious and senseless."

"He bludgeoned to death an elderly man who posed absolutely no threat to him and left behind written messages and a picture of a devil. ... He returned once to padlock the door, preventing any possibility of Mr. O'Malley's escape, and then returned to take his car."

While Roberto had earned a high school diploma and learned coping skills through intensive therapy, Brown wrote, Roberto had sent him a threatening email 10 months earlier.

The email, laden with vulgarities, was traced to Roberto by the California Highway Patrol, the FBI Cyber Crimes Task Force, and the Office of Internal Affairs for the California Department of Corrections and Rehabilitation.

Brown said the email states in part: "you better hope i never see you i will shoot you with a real gun."

During the investigation of that email, Brown wrote, Roberto's journal was reviewed. In it were "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 report by the Division of Juvenile Justice described the writing as "ideation that violence will fulfill his destiny - He (wrote) about violence, his capability of violence, and eventually dying in fulfilling that."

"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," Brown wrote. "They are particularly significant in the context of the heinous murder he committed and his history of threats and violence during his commitment to the Division of Juvenile Justice."

In her habeas petition, attorney Corene Kendrick, with the Berkeley-based Prison Law Office, argued that the governor's authority to reverse parole board decisions for prisoners with indeterminate sentences for murder does not apply to Roberto because he was a minor, considered "committed" but not "sentenced."

However, Campbell argued in court that Prop. 89, which gave the governor power to reverse parole board decisions in 1988, gave the state executive broad authority, which included cases involving minors.

The initiative was approved by 55 percent of voters.

Kendrick also argued that Brown's decision was based on information obtained from the county probation department though he legally should have relied on evidence presented to the parole board. While the governor did consult with the local probation chief before rendering his decision, Campbell said, the facts he alluded to in his reversal had been presented to the parole board. That evidence, she said, showed that Roberto represents "a current danger to the public."

Superior Court Judge Linda Hurst continued the case so she can review a transcript of Roberto's parole board hearing. The next court date has not been determined.

If Hurst rules in favor of Roberto, the county probation department would be in charge of his supervision.

If Hurst upholds the governor's reversal, Roberto will still have to be released by his 25th birthday, in December 2016.

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