Opinion
NOT TO BE PUBLISHED
PETITION for Writ of Habeas Corpus. Peter Espinoza, Judge No. BH004731.
Luis Ayala, in pro. per.; and Nancy L. Tetreault, under appointment by the Court of Appeal, for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Jennifer A. Neill and Jennifer L. Dolan, Deputy Attorneys General, for Respondent.
EPSTEIN, P. J.
In this petition for writ of habeas corpus, Luis Ayala asks that we vacate the Governor’s reversal of the Board of Parole Hearings (the Board) decision to grant him parole. He asks that we reinstate the Board’s decision and order his release from custody. We issued an order to show cause. We grant the petition.
FACTUAL AND PROCEDURAL SUMMARY
We begin with the commitment offense. On April 2, 1989, petitioner and three companions climbed over a wall to enter a parking lot located below an apartment complex in North Hollywood. One of them had keys to a pickup truck, which they intended to steal and take for a joyride. They entered the truck but improperly operated the stick shift, causing the truck to crash into a wall.
The victim was a resident of the apartment complex who witnessed the attempt to take the vehicle and confronted the petitioner and his companions. Petitioner ran out of the parking lot and hid in nearby bushes until he felt he was no longer being pursued. He then rejoined his companions about a block away from the complex. The victim caught up with the group and grabbed petitioner by the arm. Petitioner punched the victim in the face, causing him to fall to the ground. The victim started to get up, and petitioner ran away.
Petitioner turned around when he heard gunshots. He ran back to a corner near the apartment complex, where he encountered one of his companions. His companion claimed to have just shot the victim in the leg. Petitioner saw the victim walking away and did not attempt to help. He and his companions ran towards a friend’s house.
The victim went to a nearby store to request help. He was hospitalized but died a short time later of a single gunshot wound to the stomach. Petitioner claimed not to know that his friend, the shooter, had a gun with him on the day of the shooting.
A few days later, petitioner was standing on the street in front of his neighbor’s house with a group of friends. Petitioner was holding a gun when police officers appeared on the street in response to a disturbance or fight situation. The officers observed petitioner drop the gun to the ground. Petitioner was detained and then released. Shortly after that, petitioner and two of his companions were arrested after they were identified by a witness who told the police he had observed the shooting.
Petitioner was charged and convicted of first degree murder and first degree burglary. (Pen. Code, § 187, subd. (a); § 459.) The jury also found true a principal armed with a firearm enhancement. (Pen. Code, § 12022, subd. (a).) The sentencing court reduced petitioner’s crime to second degree murder and stayed the sentence for first degree burglary, pursuant to Penal Code section 654. Petitioner was sentenced to 16 years to life in prison. The sentencing court recommended “the earliest possible parole should defendant’s behavior be suitable to authorities while in custody.”
According to his probation report, petitioner came from Mexico when he was 10 years old, and was raised by his mother. He became a member of the Logan Heights gang at the age of 14. He started drinking alcohol heavily on the weekends when he was 16½ years old. He also occasionally smoked marijuana and used PCP.
Prior to his arrest for the present offense, petitioner had been arrested twice. In March 1989, he was arrested by the California Highway Patrol for driving a stolen vehicle in violation of Vehicle Code section 10851. He spent five days in Kings County juvenile hall for that offense. As previously discussed, petitioner also was arrested by Los Angeles police a few days after the shooting for possession of a concealed firearm in violation of Penal Code section 12101, but was released until his arrest on the present offense. It was later determined that the concealed weapon was the gun used in the shooting.
At the time of the present offense, petitioner was 17 years old. He was enrolled in high school as a 10th grader. His grades were poor and he had excessive absences, though many were excused by his mother. He had been employed the previous summer as a custodian in a movie theater.
Petitioner has been incarcerated since April 1989, and has been in prison since June 1994. He is regularly visited by his mother and her husband, his siblings, and a brother-in-law. He also stays in touch with a childhood friend who is not gang affiliated. In prison, petitioner received a G.E.D. certificate and fulfilled the requirements for mechanical drafting and office services vocational classes. He completed 13 years of the CALM program (Conflict, Anger, Lifelong Management). He also has certificates for anger management, citizenship, family matters, life management, and other self-help programs. He is a regular attendee of both Alcoholics Anonymous and Narcotics Anonymous.
At first, petitioner was a member of a prison gang, the South Side Car gang, but ended his affiliation in 1996. He has two California Department of Corrections (CDC) form 128 violations for failure to report, one from 1995 and one from 1998. He has two CDC form 115 violations, for possession of marijuana and physical altercation, both from 1995.
“A rules violation report on CDC Form 115 documents inmate misconduct that is ‘believed to be a violation of law’ or ‘not minor in nature.’ ([Cal. Code] Regs., tit.15, § 3312, subd. (a)(3).) A ‘Custodial Counseling Chronology’ on CDC Form 128-A documents recurring minor misconduct or minor misconduct meriting documentation and the counseling provided. ([Cal. Code] Regs., tit.15, § 3312, subd. (a)(2).)” (In re Razor (2009) 172 Cal.App.4th 1185, 1193, fn. 7.)
Petitioner has never experienced psychological problems, and has received positive evaluations during his time in prison. In a Board of Prison Terms psychological report from 1999, a prison psychologist stated that “a characteristic impulse to violence has never been apparent in this inmate’s life.” The psychologist recommended petitioner for parole. An update to the report later that year repeated the opinion that “inmate Ayala has a good chance of succeeding on parole as compared to other incarcerated felons.”
Petitioner’s minimum parole eligibility date was July 30, 2000. He appeared before the Board of Prison Terms in 2000, 2003, and 2005, and was denied parole on each occasion. On October 12, 2006, petitioner appeared a fourth time before the Board of Parole Hearings and was found suitable for parole.
The Board of Parole Hearings replaced the Board of Prison Terms in July 2005. (Pen. Code, § 5075, subd. (a).) For ease of reference, and because both entities have performed the same duties, we refer to both as “the Board.”
In March 2007, the Governor reversed the Board’s decision to grant petitioner parole. Petitioner sought review of that decision in a petition to the superior court. In August 2008, the California Supreme Court decided two cases concerning the standard of review for gubernatorial reversals of parole decisions. (In re Lawrence (2008) 44 Cal.4th 1181; In re Shaputis (2008) 44 Cal.4th 1241.) In September 2008, the superior court denied petitioner’s petition without citing either case. Petitioner applied to the superior court for reconsideration in light of these new cases, but reconsideration was denied. Petitioner now seeks habeas corpus relief from this court.
DISCUSSION
I
Penal Code section 3041, subdivision (a) provides that for prisoners sentenced to indeterminate prison terms the Board “shall normally set a parole release date” one year prior to an inmate’s minimum eligible parole release date, and shall set the date “in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public,...” Penal Code section 3041, subdivision (b), provides that “[t]he panel or board... shall set a release date unless it determines that the gravity of the current convicted offense or offense, or the timing and gravity of current or past convicted offense or offenses, 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 at this meeting.”
The California Constitution grants the Governor the power to review decisions made by the parole authority. “No decision of the parole authority of this State with respect to the granting, denial, revocation, or suspension of parole of a person sentenced to an indeterminate term upon conviction of murder shall become effective for a period of 30 days, during which the Governor may review the decision subject to procedures provided by statute. The Governor may only affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider....” (Cal. Const., art. V, § 8, subd. (b).)
Penal Code section 3041.2 provides the procedural framework for the Governor’s review. When reviewing parole decisions pursuant to California Constitution, article 5, section 8, subdivision (b), the Governor “shall review materials provided by the parole authority.” (Pen. Code, § 3041.2, subd. (a).) If the Governor decides to reverse or modify a parole decision, he or she “shall send a written statement to the inmate specifying the reasons for his or her decision.” (Pen. Code, § 3401.2, subd. (b).)
Petitioner argues that the Governor’s power to reverse the Board’s parole decisions violates federal procedural due process both facially and as applied to him. We first address the facial challenge. The Fourteenth Amendment to the United States Constitution prohibits states from depriving any person of life, liberty, or property, without due process of law. (U.S. Const., 14th Amend., § 1.) Petitioner asserts the Governor’s parole reversal authority violates due process because it deprives petitioner of “his conditional liberty interest in [being] parole[d].” These and his related arguments are without merit.
Procedural due process does not require that the same protections offered for parole hearings be made available during the Governor’s review. (See In re Arafiles (1992) 6 Cal.App.4th 1467 [due process satisfied by the procedures offered during the parole hearing; those procedures do not have to be extended to the Governor’s limited review of that decision].) The Governor must base his or her decision on the same factors the Board was required to consider. (Cal. Const., art. V, § 8, subd. (b).) The Governor’s review is limited to the record that was before the parole authority, and a reversal of the parole decision must be supported by a written statement specifying reasons for the reversal. (Pen. Code, § 3041.2.) The Governor’s review may be challenged as arbitrary or capricious by the writ of habeas corpus. (See In re Sturm (1974) 11 Cal.3d 258, 269 [the basic remedy to correct arbitrary parole authority action is the writ of habeas corpus].) The Governor may not adopt a policy of rejecting parole solely on the basis of the type of offense; individualized treatment and due consideration are required. (See In re Rosenkrantz (2002) 29 Cal.4th 616, 684; In re Minnis (1972) 7 Cal.3d 639, 647.) There is no showing that he did so.
Petitioner also challenges the Governor’s neutrality as a decision maker, arguing the Governor is a “political partisan with a self-interest in reelection and political advancement.” Petitioner provides no evidence that the Governor acted in political self-interest. (In re Rosenkrantz, supra, 29 Cal.4th at pp. 685, 686.) “Such reversals simply may indicate that the Governor is more stringent or cautious than the Board in evaluating the circumstances of a particular offense and the relative risk to public safety that may be posed by the release of a particular individual.” (Ibid.)
II
We turn to petitioner’s claim that the Governor’s review as applied to him violated his right to federal and state due process. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 7, subd. (a).) We review the Governor’s decision under the “some evidence” standard set out in In re Rosenkrantz, supra, 29 Cal.4th at page 625, and clarified by In re Lawrence, supra, 44 Cal.4th 1181 and In re Shaputis, supra, 44 Cal.4th 1241. “[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.” (In re Lawrence, supra, 44 Cal.4th at p. 1212.) To determine whether some evidence supports the Governor’s decision that an inmate constitutes a current threat to public safety, the reviewing court considers “evidence in the record corresponding to both suitability and unsuitability factors—including the facts of the commitment offense, the specific efforts of the inmate toward rehabilitation, and, importantly, the inmate’s attitude concerning his or her commission of the crime, as well as the psychological assessments contained in the record....” (Id. at p. 1213.)
We also review the Governor’s action under the statutes and applicable regulations. California Code of Regulations, title 15, section 2401, provides the parole guidelines for individuals convicted of murder committed after 1978, as in the present case. Section 2402 presents the factors determining unsuitability and suitability, respectively. “A parole date shall be denied if the prisoner is found unsuitable for parole under Section 2402(c). A parole date shall be set if the prisoner is found suitable for parole under Section 2402(d).”
All further references are to the California Code of Regulations, title 15 unless otherwise indicated.
Circumstances tending to show suitability for parole include that the inmate (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his or her life, especially if the stress had built over a long period of time; (5) committed the crime as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use upon release; and (9) has engaged in institutional activities that suggest an enhanced ability to function within the law upon release. (§ 2402, subd. (d).)
Circumstances tending to show unsuitability for parole include that the inmate (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) has a previous record of violence; (3) has an unstable social history; (4) has sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (§ 2402, subd. (c).)
These factors are presented as general guidelines, and the Board must consider all relevant information. (§ 2402, subd. (b).) “Such information shall include the circumstances of the prisoner’s social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner’s suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.” (§ 2402, subd. (b).)
The Board’s conclusion that the petitioner is suitable for parole and does not pose a current danger to society finds strong support in the record. As the Governor acknowledged, petitioner developed marketable skills by earning a GED, completing vocational training, and holding institutional positions while in prison. Petitioner has participated in self-help programs and maintained strong relationships with supportive family and friends. He has severed gang ties and received favorable mental health evaluations. Petitioner has made realistic plans for release and has a letter of support from his mother indicating he may live with her in Los Angeles. He has other letters from family members and friends who are willing to help him obtain a job.
The primary ground upon which the Governor denied parole was the commitment offense itself. The Governor found that the second degree murder for which petitioner was convicted was especially grave because it demonstrated “an exceptionally callous disregard” for the victim’s suffering and life. To support this, the Governor cited the fact that petitioner failed to help the victim after he was shot. Despite the positive factors discussed above, the Governor concluded that the “gravity of the second-degree murder committed by Mr. Ayala is alone sufficient for me to conclude presently that his release from prison would pose an unreasonable public safety risk.”
“[A]although the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, 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 post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner’s dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.” (In re Lawrence, supra, 44 Cal.4th at p. 1214.)
The Governor failed to identify anything else in the record that indicates the particular gravity of the murder committed by petitioner remains probative to his determination that petitioner remains a current threat to public safety. Petitioner has a criminal record, which consists of two prior arrests for nonviolent offenses. He has received four violations while in prison, but has been violence free since 1995 and discipline free since 1998. Petitioner has completed anger management courses and participated for 13 years in the CALM program. He also has received positive psychological evaluations.
There is no demonstration or showing that the commitment offense alone supports the inference that petitioner currently poses an unreasonable risk of danger to society if released on parole. Lacking that nexus, In re Lawrence, supra, 44 Cal.4th 1181 commands the petition be granted. (See In re Vasquez (2009) 170 Cal.App.4th 370; In re Gaul (2009) 170 Cal.App.4th 20; In re Aguilar (2008) 168 Cal.App.4th 1479.)
Because our review of the materials before the Board presents no evidence to support a decision other than the one reached by the Board, a “remand to the Governor would amount to an idle act.” (In re Aguilar, supra, 168 Cal.App.4th at p. 1491; In re Smith (2003) 109 Cal.App.4th 489, 501.)
At oral argument, petitioner’s counsel acknowledged that since the Board’s 2006 decision there may have been a change of circumstances which could affect petitioner’s suitability for parole. Counsel suggested remanding to the Board with discretion to conduct a new hearing. We assume that if such conduct occurred, the parole authority would invoke section 2450 to postpone or rescind petitioner’s parole date.
DISPOSITION
The petition for a writ of habeas corpus is granted. The Governor’s decision to reverse the Board’s grant of parole to petitioner is vacated and the Board’s parole release order is reinstated. Accordingly, we order that Ayala be released pursuant to the conditions set forth in the Board’s decision. (See In re Gray (2007) 151 Cal.App.4th 379, 411.)
We concur: WILLHITE, J., SUZUKAWA, J.