3 decades later, murder plea deal is still in dispute

reporting from SAN FRANCISCO —  Candace Lee Fox was 24, a single mother and manicurist living in Canoga Park when police arrested her and three others on suspicion of murder and robbery in a home invasion.

Fox agreed to plead guilty to second-degree murder and testify against a co-defendant. In exchange, according to a court reporter’s transcript of the sentencing hearing, Los Angeles prosecutors promised her parole in 7 1/2 years if she stayed clean in prison.

More than 30 years later, Fox is still behind bars, the victim of an empty promise, her own bad decisions, and lawyers and a judge who approved a deal the courts would not enforce.

“This case sort of screams out to me that it is a mess,” an exasperated U.S. 9th Circuit Court Judge Andrew D. Hurwitz said during a March 5 hearing.

Fox’s case, which the federal appeals court is trying to resolve, underscores how even experienced lawyers and a judge may be befuddled by the law’s complexities. It also serves as a reminder that a seemingly straightforward legal matter can take unexpected twists.

“Everybody agrees the state made a promise it couldn’t keep,” Hurwitz said at the hearing.

Fox and three friends allegedly hatched the 1984 robbery as they sat around a swimming pool at the townhouse where she lived.

Her roommate mentioned that Lewis Levy, 49, the victim, owed her money for sexual services. The group decided to rob and kill Levy and use the proceeds to buy cocaine, according to court records.

In a hearing on her plea, a prosecutor told her it was up to her how much time she served.

“We can make no promises or representations on what the Board of Prison Terms will or will not do or when they will release you,” the prosecutor said.

After testifying for the prosecution for 5 1/2 hours, Fox was sentenced. Her attorney noted that as part of the plea bargain, she would be “looking at” parole in 7 1/2 years. The prosecution agreed.

Once in prison, Fox was informed by the state corrections department that she would not be eligible for parole for 10 years and would be subject to lifelong parole supervision.

That discovery triggered decades of court battles that continue today.

Fox, now 54 and soon to be a grandmother, learned that the plea deal she accepted violated a state sentencing law. She argued that she would not have accepted the longer term and life parole if she had known. She wanted her original agreement enforced or her plea withdrawn.

A state appeals court set aside the plea. Though she had already spent several years in prison and was nearing the 10-year date, she went to trial.

She was convicted of first-degree felony murder — participating in a felony robbery that triggered a killing — and sentenced to life without parole. Although she did not kill the victim, she had hit him in the head with a beer bottle and grabbed a dull kitchen knife that a co-defendant had used to stab him.

She filed more appeals in state court, trying to resurrect the bargain from 1984. California judges were unsympathetic.

A Los Angeles-based appeals court said Fox had been given a “promise of parole in 7 1/2 years” but had wanted to set aside her plea and go to trial.

“She got exactly what she asked for,” the court said. “Obviously, she is not pleased with the end result, because instead of a lifetime of freedom restricted only by her parole status, she now has lifetime in prison, without the possibility of parole.”

Federal judges have been more troubled by her case. A magistrate decided initially in her favor but later changed his mind in an amended report.

He said his hands were tied. Under a federal law, he could not second-guess the state courts unless their decisions were entirely unreasonable and in conflict with a U.S. Supreme Court decision. A federal district judge accepted the recommendation, and Fox appealed to the 9th Circuit.

Judge Stephen Reinhardt appeared incredulous during the hearing that Fox had opted for a high-risk trial so close to her new parole date.

“It has to be very clear that a person who is doing something this drastic understands what is going on,” Reinhardt said. “We don’t know if anyone ever told her, ‘You can get the legal aspect of the original plea.’”

Deputy Atty. Gen. David Wildman, arguing to keep Fox in prison for life, said the state appeals court’s only option had been to give her a new trial.

That might have been the only option under state law, Reinhardt said, but what about her federal constitutional right to due process?

The three-judge panel struggled with the question of whether she had been told she would get parole or would be eligible for it. Prosecutors legally could not have guaranteed her parole because that decision would ultimately have been made by the parole board. Legal documents from the time give conflicting accounts.

The following day, the 9th Circuit ordered attorneys to try to mediate a solution. Neither the prosecutor nor the defense lawyer would comment.

Fox’s daughter, Danielle, 36, who was 6 when her mother was arrested, is expected to give birth to a daughter in two weeks.

Danielle grew up with her maternal grandparents, visited her mother in prison twice a month and still speaks regularly to her on the phone.

Referring to her mother’s crime, she said, “Meeting the wrong people can change your life forever.” She described her relationship with her mother as “super close, best friends.”

“You are always thinking,” the daughter continued, “when is she coming home?”

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