Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BH006018 Peter Espinoza, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Julie A. Malone and Jennifer L. Heinisch, Deputy Attorneys General, for Appellant.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I. INTRODUCTION
In 1987, Jesse Martinez (petitioner) was convicted of second degree murder and sentenced to an indeterminate term of 15 years to life in prison plus an additional two years due to his use of a firearm in the commission of the offense. In 2008, the Board of Parole Hearings (Board) found petitioner suitable for parole. The Governor, however, reversed the Board’s decision, concluding that petitioner constituted an “unreasonable risk of danger to society....”
On May 18, 2009, petitioner filed a petition for writ of habeas corpus in the superior court challenging the Governor’s decision. On February 4, 2010, the superior court granted the petition. The superior court found the record did not contain “some evidence... of [p]etitioner’s current risk of danger to society.”
The Governor contends the superior court’s ruling was erroneous. Alternatively, the Governor argues, if the superior court’s ruling was correct, the proper remedy is to remand the matter to the Governor for reconsideration. We reverse the judgment of the superior court and, therefore, do not reach the Governor’s alternative position.
The superior court correctly required the Governor’s decision to be supported by “some evidence” petitioner constituted a current threat to public safety. The Supreme Court has explained that this requirement is satisfied as long as “a modicum of evidence” supports the Governor’s decision. (In re Lawrence (2008) 44 Cal.4th 1181, 1226.) Here, there was, at a minimum, a modicum of evidence supporting the Governor’s decision.
II. FACTUAL BACKGROUND
A. The Underlying Crime
At 5:45 p.m., while riding his bicycle, petitioner encountered Omar Castellanos sitting on the tailgate of a pick-up truck. Petitioner, a gang member, displayed gang signs and asked Castellanos where he was “from.” Although Castellanos was not a gang member, he replied “18th Street.” Petitioner then pulled out a firearm and shot Castellanos four times. Castellanos was not armed. He died upon arrival to the hospital.
B. The Board of Parole Hearings
After serving approximately 21 years in state prison, the Board concluded petitioner was suitable for parole. The Board acknowledged the severity of the crime in that Castellanos was shot four times at close range and left to die in front of his neighbors and family members but credited petitioner for his remorse and the fact that he honestly revealed the shooting elevated his position in his gang.
The Board recognized petitioner had a long history of abusing narcotics and alcohol and that he sniffed paint at an early age. However, the Board was pleased with petitioner’s participation in self-help programs in prison such as Alcoholics Anonymous and job training.
The Board also credited petitioner with providing assistance to inmates with physical or mental needs and recognized he had a recently favorable psychological report.
C. The Governor’s Reversal
In review of the Board’s decision, the Governor took a different approach. The Governor acknowledged the accolades alluded to in the Board’s findings. However, the Governor also cited numerous factors weighing against a parole release.
The Governor indicated the offense was “especially atrocious” because Castellanos was unarmed and posed no threat to petitioner. Further, petitioner’s motivation for the crime (i.e., petitioner’s belief that Castellanos had attacked one of his fellow gang members years prior to the shooting) was characterized by the Governor as “extremely trivial.”
The Governor also expressed concern over petitioner’s history of substance abuse and his absence of a clear understanding that substance abuse treatment was important to his success on parole. In this respect, the Governor referenced a 2008 mental health evaluation which noted petitioner had not received narcotics counseling and that his risk assessment score was elevated, thereby, suggesting the probability of violent recidivism was “increase[ed].”
The 2008 mental health evaluation was also referenced by the Governor because it suggested petitioner had unresolved anger management issues. In this regard, the evaluation revealed that the risk of recidivist violence was increased because petitioner had a “macho” attitude and became angry when others teased him or attempted to “take away his ‘manhood.’”
Finally, the Governor was concerned that petitioner lacked the counseling he needs to address his history of gang participation and “his inability to reject gang instructions that have led to violence.” This, in the Governor’s view, was important to avoiding future criminal conduct.
D. The Superior Court Ruling
The superior court broke down its analysis of the Governor’s decision into three main components: the nature of the criminal offense; concerns in the psychological evaluation; and petitioner’s gang-related “programming.”
In assessing the offense, the superior court acknowledged it was especially heinous and motivated by trivial matters but concluded that it did not represent a current risk of violence because petitioner had “more than 20 years of violence-free rehabilitation.” Furthermore, the superior court found petitioner was remorseful, lacked a significant history of violent crime, was 50 years old, had realistic employment opportunities, and participated in self-help programs and counseling. The superior court concluded that, despite the seriousness of the offense, petitioner’s post conviction record “strongly supports a finding that he no longer poses a danger to public safety.”
The superior court disagreed with the Governor’s assessment of the psychological report. First, the superior court noted that the report incorrectly minimized the number of years that petitioner had attended alcohol counseling. Second, it discounted statements made to the evaluator regarding his anger because petitioner recognized his “triggers for anger” and because petitioner told the Board that he is no longer concerned about others teasing him. Finally, the superior court gave weight to the fact that petitioner had been discipline-free for a long period of time and that, “despite concerns raised, [his] overall risk of future violence was low.”
With respect to gang-related counseling, the superior court noted petitioner participated in a youth outreach program designed to prevent gang participation and petitioner had indicated, if he were to change anything about his past, he would have never entered a gang. In the view of the superior court, this program was sufficient to satisfy the Governor’s concern that petitioner had appropriate counseling to address his gang-related issues.
III. DISCUSSION
A. The Standard of Review
When the Governor reverses the Board’s finding that an inmate is suitable for parole, a court’s review of the Governor’s decision is “deferential.” (In re Shaputis (2008) 44 Cal.4th 1241, 1255.) “[T]he Governor has the discretion to be ‘more stringent or cautious’ in determining whether a defendant poses an unreasonable risk to public safety. [Citation] When a court reviews the record for some evidence supporting the Governor’s conclusion that a petitioner currently poses an unreasonable risk to public safety, it will affirm the Governor’s interpretation of the evidence so long as that interpretation is reasonable and reflects due consideration of all relevant statutory factors. ” (Id. at p. 1258.) In other words, this “deferential standard of review requires [a reviewing court] to credit the Governor’s findings if they are supported by a modicum of evidence. [Citation.]” (In re Lawrence, supra, 44 Cal.4th at p. 1226.)
Title 15, section 2402 of the California Code of Regulations sets forth the factors to be considered in determining whether an inmate is suitable for parole. It is undisputed that the Governor applied legitimate factors in reaching his decision. The only question is whether those factors were supported by “some evidence.”
B. The Governor’s Decision is Entitled to Deference
As acknowledged by petitioner, the heinous nature of the offense is a circumstance that tends to establish unsuitability for parole. (Cal.Code Regs., tit 15, § 2402, subd. (c)(1)). He also agrees that one of the statutory factors supporting a finding that the crime was heinous (i.e., a trivial motive) is supported by some evidence in the record. Petitioner, however, claims that other factors listed in the Code of Regulations which point to the heinous nature of the crime (i.e., multiple victims, calculated killing, the victim was mutilated, callous disregard for human life) were not present. Thus, petitioner surmises that the Governor improperly found the crime was heinous.
Petitioner’s argument is not persuasive for two reasons. First, the Governor’s finding that the crime was heinous was not only supported by the trivial nature of the crime, but also the callous disregard for human life in that Castellanos was unarmed when he was shot four times. Second, the position taken by petitioner amounts to an invitation to reweigh the factors supporting the heinous nature of the offense, rather than review the record to determine whether the heinous nature of the offense is supported by some evidence. The type of review contemplated by petitioner’s argument is inappropriate. (See In re Criscione (2009) 180 Cal.App.4th 1446, 1458; see also In Re Cerny (2009) 178 Cal.App.4th 1303, 1315.)
Petitioner’s remaining arguments are that the Governor’s decision was erroneous because there was “no evidence” he: lacked a clear understanding of his problems with narcotics; and posed a danger to society based on his personality or his prior gang involvement. Again, we find the record provides the modicum of evidence necessary to support the Governor’s decision.
First, the record demonstrates petitioner admitted to an extensive history of using intoxicants such as PCP, cocaine, marijuana, paint fumes, and alcohol. Although petitioner recognized he has a historical problem abusing narcotics, petitioner did not take the initiative to address his narcotics history by completing narcotics counseling while in prison. Thus, some evidence supports the Governor’s conclusion that petitioner did not appreciate the necessity for narcotics counseling — a seemingly necessary component to petitioner’s success on parole particularly because the record demonstrates he was under the influence of an intoxicant when he committed the murder.
Second, the Governor’s finding that petitioner had unresolved anger management issues is supported by the reference in the psychological evaluation to petitioner’s “macho” attitude and tendency to become angry if he is teased by others. In his response to the psychological evaluator’s question about whether petitioner could foresee any problems for him in the community, even petitioner questioned his ability to handle the lack of respect from another person: “Like if a guy cuts in front of me what do I do [?] But I think I can be okay with this.”
Third, given that the killing was motivated by gang-related retaliation, the Governor reasonably examined the record for evidence that petitioner had received adequate gang counseling. In an effort to refute the Governor’s finding that petitioner lacked this counseling, petitioner argues the record demonstrates he “pretty much” severed his gang ties, he was not active in gang activities while incarcerated, he obtained his GED, and had a positive behavioral record. While these points are supported by the record, there is nonetheless no evidence in the record demonstrating that petitioner had any counseling that focused on gang culture.
The record does not indicate that petitioner received gang-related counseling in the youth-adult program.
In sum, all of the factors cited by the Governor are supported by the necessary “modicum of evidence.” Thus, we give deference to the Governor’s conclusion that petitioner poses a current threat to public safety, and therefore, is not suitable for parole.
IV. DISPOSITION
The February 4, 2010, order granting the habeas corpus petition filed May 18, 2009 is reversed. Upon remittitur issuance, a new order denying the habeas corpus petition is to be entered. Pending entry of the new order, our previously entered stay order shall remain in full force and effect. Upon entry of the new order denying the habeas corpus petition, the stay order shall dissolve.
We concur: TURNER, P. J., KRIEGLER, J.