Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; Petition for Writ of Habeas Corpus Los Angeles County Super. Ct. Nos. A789544, BH007066, Peter P. Espinoza, Judge.
Rodolfo Salas, in pro. per.; and Richard D. Pfeiffer, under appointment by the Court of Appeal, for Petitioner.
Edmund G. Brown Jr. and Kamala D. Harris, Attorneys General, Julie L. Garland, Assistant Attorney General, Linnea D. Piazza, Phillip Lindsay and Michael Rhoads, Deputy Attorneys General, for Respondent.
ROTHSCHILD, J.
Rodolfo Salas brought this petition for a writ of habeas corpus after the former governor reversed the Board of Parole Hearings’ decision to grant Salas parole. We appointed counsel for Salas and issued an order to show cause. We now grant the petition.
FACTS AND PROCEEDINGS BELOW
In 1989, a jury convicted Salas of the second degree murder of Alejandro Munoz and found that Salas personally used a firearm in the commission of the crime. The murder occurred in 1986 when Salas was 21 years of age. The court sentenced Salas to a term of 15 years to life for the murder and a consecutive 2-year term for the firearm enhancement.
It appears from the record before us that on the night of the murder Salas and his brother, Miguel, went to a party where they encountered their cousin, Alejandro Munoz (Alejandro). Animosity had existed between Salas and Alejandro since they were children. The two men got into a fight. Some of the partygoers broke up the fight and Alejandro left. Later that night Alejandro told two of his friends, Marcos Munoz and Jose Luna, about the fight and the three men decided to return to the party. As they sat outside the party in Luna’s car, Salas and Miguel approached and started shooting at them with handguns. Alejandro was shot in the head and died. Marcos was hit in the groin but lived. Luna was not hit. After the shooting, Salas fled to Mexico but was arrested in Texas six months later and extradited to California. Marcos and Jose told police that both Salas and his brother Miguel shot at them. The police recovered two.32 caliber “live rounds, ” two.380 caliber “live rounds” and one “.380 Caliber casing” from the scene of the crime at 35th and McKinley Streets. Despite the eyewitness accounts, the forensic evidence and the jury’s finding he personally used a firearm in the crime, Salas has consistently maintained at his parole hearings that only his brother Miguel shot at the victims.
Neither party provided a transcript of the trial, or an appellate record or opinion. Our appellate record and opinion from 1989 have been destroyed and we were unable to locate the opinion on an on-line source. We take the facts of the crime from the police and probation reports submitted with the return to the petition.
In 2009, the Board of Parole Hearings voted unanimously to grant Salas parole. The evidence at the hearing showed that Salas had no prior criminal record. The Board described his prison record as “exemplary, ” noting that he had received only one “115” discipline report and that occurred more than 20 years before the parole hearing. Salas earned his GED in 2001 and received training in computer-aided drafting and office services. He worked as a mechanical drawer, clerk, teacher’s assistant, and laundry room assistant. In addition, Salas availed himself of an array of self-help programs including Alcoholics Anonymous, Narcotics Anonymous and literacy and anger management programs. He volunteered as a teacher’s aide and as an English tutor for Spanish-speaking inmates. The psychologist who evaluated Salas in 2008 found that he posed “a low likelihood to become involved in a violent offense if release[d] to the free community.” (Italics, bold and underlining in original.)
The Governor did not question any of the positive conclusions of the Parole Board but reversed on the basis of the “gravity of the crime, ” “the evidence that Salas still minimizes his criminal conduct” and because “he has not gained a sufficient understanding of the circumstances of his life offense.” In the Governor’s view, these factors indicate that Salas “still poses a risk of recidivism and violence and that his release from prison at this time would create a current, unreasonable risk to public safety.”
Salas contends the Governor’s conclusion that he would pose an unreasonable risk of danger to public safety if released on parole is not supported by “‘some evidence.’” (In re Lawrence (2008) 44 Cal.4th 1181, 1191 (Lawrence).) We agree.
DISCUSSION
A. Governing Law
Penal Code section 3041 grants every inmate a cognizable liberty interest in parole, and that interest is protected by the procedural safeguards of the due process clause. (Lawrence, supra, 44 Cal.4th 1181, 1205 [“petitioner is entitled to a constitutionally adequate and meaningful review of a parole decision, because an inmate’s due process right ‘cannot exist in any practical sense without a remedy against its abrogation’”].) Section 3041, subdivision (b), establishes a presumption that parole will be the rule, rather than the exception, providing that the Board “shall set a release date unless it determines that the gravity of the current convicted offense... is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed....” Accordingly, the “statutory and regulatory mandate to normally grant parole to life prisoners who have committed murder means that, particularly after these prisoners have served their suggested base terms, the underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when there is strong evidence of rehabilitation and no other evidence of current dangerousness.” (Lawrence, supra, 44 Cal.4th at p. 1211.)
All statutory references are to the Penal Code.
The “core determination” thus “involves an assessment of an inmate’s current dangerousness.” (Lawrence, supra, 44 Cal.4th at p. 1205.) The Board and the Governor are authorized “to identify and weigh only the factors relevant to predicting ‘whether the inmate will be able to live in society without committing additional antisocial acts.’” (Id. at pp. 1205-1206.)
B. Standard of Review
“[W]hen a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings. [Citations.]” (Lawrence, supra, 44 Cal.4th at p. 1212.) The standard is “unquestionably deferential” and limited to ascertaining whether there is “‘some evidence’” in the record that supports the Board’s decision. (Id. at p. 1210.) Nonetheless, the standard “certainly is not toothless, and ‘due consideration’ of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision—the determination of current dangerousness.” (Ibid.)
The Governor's decision must be based on the same evidence and materials that were before the Board, and it must be based on the same factors that the Board was required to consider in reaching its determination. (§ 3041.2, subd. (a); In re Shaputis (2008) 44 Cal.4th 1241, 1258.)
C. The Nature of the Commitment Offense.
In determining future dangerousness, the Board and the Governor are entitled to consider the aggravated circumstances of the commitment offense such as whether “[m]ultiple victims were attacked, injured or killed in the same or separate incidents.” (Cal. Code Regs, tit. 15, § 2402, subd. (c)(1)(A).) But after 23 years, the “‘diminishing predictive value’” of these factors for Salas’s future conduct renders them insufficient, standing alone, to show that Salas continues to pose a serious public danger. (Lawrence, supra, 44 Cal.4th at p. 1218.) As our Supreme Court made clear in Lawrence, “the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner’s pre-or postincarceration history, or his... current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his... commission of the commitment offense remain probative of the statutory determination of a continuing threat to public safety.” (Id. at p. 1214.)
In this case the Governor concluded, contrary to the Board, that Salas “has still failed to obtain insight into his actions in the life offense” and has conveyed only a “limited and vague” “expression of remorse.” Therefore, the Governor concluded, “Salas’ lack of insight, minimization of his actions, and limited expressions of remorse renders his life offense still relevant to my determination that he poses an unreasonable risk of danger if released to the public....”
D. Remorse
The Governor’s finding that Salas had not expressed sufficient remorse for his crime is based on a single remark that Salas made to a mental health evaluator in 2008 as interpreted by a panel of the Board in an earlier decision to deny Salas parole. Referring to the murder victim, Salas told the evaluator: “‘I feel remorseful. I regret what happened to him. He should not have died.’” At the earlier hearing, the Board found this statement of remorse “‘extremely limited and vague’” because it could be construed to mean “‘Salas regrets the victim died, causing him to be incarcerated for life.’” Relying on Salas’s remark, which the Governor admits is “vague, ” the Governor concludes that Salas remains a danger to society.
Even assuming that the remark was ambiguous on the question of remorse, any ambiguity was clarified by Salas’s testimony at that December 2009 hearing. Asked what he had learned about himself during his time in prison, Salas answered: “[I], recognize that what I did it was a horrible thing, and I don’t want to do it again.” Referring to Alejandro’s family, Salas testified: “I don’t have the right to ask for any forgiveness or tell them something that I don’t feel in my heart, but I would tell them to forgive me for the hurt that I caused to them. That I regret what I did. I don’t blame nobody but myself. I made the wrong choice, and I just want to say that I’m sorry. Sorry for the pain that I caused. And if there’s something that I can do to help to relieve that pain, I would do it.” Salas told the Board that he had not “reach[ed] out” to Alejandro’s family because “I just don’t want to open up the wound.... I don’t want to cause more pain than I’ve already done.” He did, however, show the Board a copy of a letter he wrote to Alejandro’s mother. He also included Alejandro and his family in completing Step 8 of his 12 Step AA program (list all of the people you have harmed.)
Further, Salas’s expression of remorse “for the pain that I caused” is not inconsistent with his denial that he shot Alejandro. Salas does not deny being involved in Alejandro’s murder. He told the psychological evaluator that after fighting with Alejandro at the party he went to his cousin’s house to get a gun for protection and that he gave the gun to his brother when they returned to the party.
E. Lack of Insight
We turn now to the Governor’s finding that Salas remains a danger to society because he has “failed to obtain insight into his actions in the life offense.”
Although “lack of insight” is not mentioned in the statutes or regulations governing parole decisions, our high court in Lawrence explained that “where the record... contains evidence demonstrating that the inmate lacks insight into his or her commitment offense or previous acts of violence, ... the aggravated circumstances of the crime reliably may continue to predict current dangerousness even after many years of incarceration. [Citations].” (Lawrence, supra, 44 Cal.4th at p. 1228.)
The Governor relies on Salas’s denial of being the gunman as showing a lack of insight. In overruling the Board’s decision to grant parole the Governor stated: “Salas need not admit his guilt in the life offense in order to be found suitable for parole. However, I am not required to accept his version, and I do not.” As the Governor correctly acknowledged a lack of insight cannot be based solely on the prisoner’s refusal to admit guilt of the commitment offense. Section 5011, subdivision (b) expressly states: “The Board of Prison Terms shall not require, when setting parole dates, an admission of guilt to any crime for which an inmate was committed.” Title 15, section 2236 of the California Code of Regulations contains a similar prohibition.
Nor can a lack of insight be based solely on the Board’s or Governor’s rejection of the prisoner’s version of events. Lack of insight into the crime, however, may be based on the prisoner’s version of the offense that is “‘ physically impossible’” or “‘strain[s] credulity’” such that the denial is “‘delusional, dishonest, or irrational.’” (In re Twinn (2010) 190 Cal.App.4th 447, 466, quoting In re Palermo (2009) 171 Cal.App.4th 1096, 1112; accord In re Jackson (2011) 193 Cal.App.4th 1376, 1391.) In In re Shaputis, for example, the petitioner’s lack of insight was demonstrated by his persistent claim that he shot his wife by accident, where the evidence strongly demonstrated otherwise, and by his minimizing his responsibility for the years of violence he inflicted on his family. (In re Shaputis (2008) 44 Cal.4th 1241, 1260 & fn. 18.) In contrast to Shaputis, Salas’s denial that he shot Alejandro is not strongly contradicted by the evidence nor is it physically impossible or implausible.
The Governor asserts that “Salas’s statements that his brother was the lone shooter are plainly contradicted by the facts contained in the probation report and the police investigation reports.” The Governor bases his assertion on statements to the police by the surviving victims that Salas was one of the shooters and his misreading of the record as to the number of shell casings found at the crime scene.
The first point, inconsistency between the victims’ version of events and Salas’s version, does not, standing alone, strongly demonstrate that Salas is lying. If it were otherwise, a prisoner who claims he is innocent would never be entitled to parole.
The Governor’s second point, regarding the shell casings, is not supported by the record. The Governor concludes that Salas must have been one of the shooters because “shell casings [from two different guns] were found at the scene of the crime.” Although we might agree that if shell casing from two different guns were found at the scene Salas’s version of events would be less credible, the police report states that only one casing was found at the scene. “Officer Pingle... recovered a.380 Caliber casing from McKinley S[treet].” (Italics added.)
Finally, the recovery of live rounds of.32 and.380 caliber ammunition does not necessarily prove that two guns were fired in the crimes much less that Salas was one of the shooters.
Despite affording the Governor’s decision the deference it is due, we cannot say “some evidence” supports the Governor’s decision to reverse the Board’s grant of parole.
DISPOSITION
The petition for a writ of habeas corpus is granted, the Governor’s decision is vacated and the Board’s order granting Salas parole is reinstated.
We concur: MALLANO, P.J., CHANEY, J.