By Bob Egelko
The San Francisco Chronicle
HAYWARD, Calif. — A state appeals court has ordered a new parole hearing that could lead to the release of a man who at age 17 killed a security guard in Hayward during a robbery in 1990, but has a productive and spotless record in prison.
The Board of Parole Hearings had no evidence to support its conclusion at a July 2009 hearing that Joshua Kaplan would be dangerous if released, the First District Court of Appeal in San Francisco said Tuesday. The court told the board to hold another hearing and release Kaplan unless it found new evidence that he posed a risk to the public.
Kaplan was one of two men who robbed Kobe Precision, an electronics store, in August 1990 and fatally shot security guard Keith Taylor, 40, of Hayward.
Kaplan, who had no criminal record, told authorities he had taken LSD, methamphetamine and other drugs that day, saw Taylor lying on the floor wounded and followed the other robber’s order to shoot him. He pleaded guilty to second-degree murder and was sentenced to 15 years to life.
The court said Kaplan, now 38, has had no disciplinary problems in prison, has gotten a community college degree, and has taken drug and alcohol treatment programs and vocational training.
He has accepted full responsibility for the crime, discussed the causes - his youth, drug abuse, family turmoil and falling in with the wrong crowd - and satisfied a prison psychologist that he had no current mental problems and posed a low risk of future violence, the court said.
Kaplan also reads books to blind inmates as part of a program at the state prison in Vacaville, said his lawyer, Charles Carbone.
“If anyone has benefited from being in prison, it’s Mr. Kaplan,” he said.
In concluding in 2009 that Kaplan might still be dangerous, the parole board cited his past drug use, the callous nature of the crime and questions that board members had about his mental state.
Alameda County Superior Court Judge Larry Goodman said there was evidence to support the board’s decision. But the appeals court, in a 3-0 ruling, said the crime and Kaplan’s drug use were past events that did not demonstrate a current threat, and prison records show “strong evidence of rehabilitation.”
State Supreme Court precedent requires courts that overturn parole board decisions to return the case to the board for a new hearing rather than ordering the prisoner’s release. The attorney general’s office could appeal the ruling to the state’s high court.
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