Appeal panel hesitant to release killer from San Quentin over virus concerns

A convicted Orange County murderer who contracted the coronavirus at San Quentin State Prison made a strong case that the felon inmate population has to be reduced in order to stop what's become one of the worst outbreaks in the country, a state appellate justice said this week.

But he said he wasn't convinced he can order the prisons department to immediately release 50% of San Quentin's prisoners, as the local health officials cited in Ivan Von Staich's petition for habeas corpus said is necessary to create sufficient space for social distancing.

"I'm not sure I'm willing to do that because I'm not confident that my court has the ability," said 1st District Court of Appeal Presiding Justice J. Anthony Kline said during a Tuesday hearing.

Although the court has 90 days to issue an opinion, Kline said a ruling should come within a few days because "there is an urgent need to act."

Richard Braucher of the First District Appellate Project, who is pleading for the immediate release of Von Staich, known as "the claw hammer killer" into a re-entry program, said he fears without strict guidelines ordered by the court, the California Department of Corrections and Rehabilitation will continue to disregard the health of inmates like his client by keeping them in prison to serve out their sentences. In re Ivan Von Staich on Habeas Corpus, A160122.

Deputy Attorney General Kathleen R. Walton said the warden of San Quentin has taken considerable actions to protect the prisoners' health since a botched transfer from a prison in Chino introduced the virus at the prison just north of San Francisco in June. The warden has released almost 1,000 inmates as of last week, which has brought the population to just above 100% capacity, and has re-purposed parts of the prison into safe quarantine locations, including an adjustment center where Von Staich was transferred from his double cell in the West Block last month, the deputy attorney general told the court.

She argued in filings that the petition should be consolidated in one of the several pending class actions contesting prison conditions during the pandemic, particularly the longstanding Plata v. Newsom federal case. Walton also said Tuesday that there should be an evidentiary hearing in the case, either in the appellate court or to be included in one of the upcoming evidentiary hearings of other similar pending petitions in Marin County Superior Court, to allow the state to introduce evidence that would dispute claims that the prisons department isn't doing enough to protect the health of inmates at San Quentin.

The other two justices on the panel are James A. Richman and Therese M. Stewart.

Von Staich was convicted in 1986 of second-degree murder and attempted murder and was sentenced to 30 years-to-life by Orange County Superior Court Judge Robert R. Fitzgerald. Records show that in 1983, Von Staich broke into the Santa Ana home of his former girlfiend, Cynthia Topper, after cutting the phone lines, bludgeoned and then fatally shot her husband, Robert Topper, and then shot and beat Cynthia. She survived but her injuries left her in a coma for months after the attack.

"His 1983 commitment offense was inexcusable, but Von Staich is not presently dangerous," Braucher argued in court filings. "The absence of any true risk is demonstrated by more than 20 years he has remained free of any substantial disciplinary infraction."

Von Staich and his cell mate contracted the virus in June, although he was asymptomatic. He said he had chronic obstructive pulmonary disease, which put him at a heightened risk. However, medical records did not confirm that diagnosis after Walton disputed it at a case management conference last month.

Von Staich's attorneys now say his age and lung damage from bullet fragments put him at risk for contracting it again. They say the antiquated ventilation system at San Quentin -- open bars, shut windows and shouting and screaming -- have allowed for the prison to become a tinderbox for spread of the coronavirus.

Over the last three decades, Von Staich has contested his conviction, largely criticizing then-Gov. Edmund G. Brown's decision in 2012 to reverse his grant of parole, which was issued in 2011 by the Board of Parole Hearings. In one such habeas corpus petition filed in the 4th District Court of Appeal, Von Staich claimed he was being unjustly imprisoned because Brown relied on an outdated psychological report to deny him parole.

Walton said Von Staich's behavioral record while in prison doesn't make him suitable for parole, despite Kline pointing out that the parole board has again deemed him likely to qualify at his next hearing in October.

"It found that before and also denied," Walton said.

Until early June, not a single inmate at San Quentin had tested positive for the virus. That changed when more than 100 medically vulnerable and infected inmates were transferred there on May 30 from the California Institution for Men in Chino, where the virus had already infected nearly 700 inmates and killed nine.

Since March, the prisons department has reduced its statewide inmate population by more than 17,000, making it the first time in 30 years the population has been below 100,000, according to a prisons department spokesperson.