Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. C24929
Lambden, J.
In 1990, petitioner Martin Barragan-Mendoza was convicted of the second degree murder of Antonio Sanchez Guizar. He was sentenced to an indeterminate term of 15 years to life imprisonment, with an additional four years because of his use of a firearm in the commission of the murder.
In 2007, the Board of Parole Hearings (Board), having denied petitioner parole in 2002 and 2004, found him suitable for parole and set a parole date. The Governor, however, reversed the Board’s decision, concluding petitioner currently posed an unreasonable risk of danger to society. Petitioner filed a petition for a writ of habeas corpus with the San Mateo County Superior Court, which denied him relief, and subsequently filed a petition for writ of habeas corpus with this court. We deny the writ in In re Barragan Mendoza, on Habeas Corpus, case No. A120455, issued simultaneously with this petition, because we conclude that there is “some evidence” (In re Lawrence (2008) 44 Cal.4th 1181, 1190–1191 (Lawrence)) to support the Governor’s conclusion.
In 2008, the Board denied parole to petitioner because it concluded that he currently posed an unreasonable risk of danger to society. Petitioner filed a petition for writ of habeas corpus with this court in the first instance, without first petitioning the superior court, because we were at that time considering his petition regarding the Governor’s reversal of the Board’s 2007 decision, because we were in effect reviewing an administrative record and decision and there was no need for additional fact finding at the superior court level, and to avoid further delay. We issued an order to show cause why relief should not be granted on February 6, 2009. Petitioner contends that his continued imprisonment violates his constitutional due process rights. He asks that we vacate the Board’s 2008 decision, and reinstate his parole date as determined by the Board at its 2007 hearing. We deny petitioner’s petition because we find that “some evidence” supports the Board’s decision.
Petitioner requests that we take judicial notice of the pleadings and records in the related petition, in case No. A120455, which we hereby grant pursuant to Evidence Code section 452, subdivision (d).
BACKGROUND
We incorporate by our reference herein all of the facts discussed in the background section of our related opinion in case No. A120455, which we issue simultaneous to this opinion. We add the following because it is relevant specifically to the Board’s 2008 decision.
2008 Psychological Evaluation for the Board
Forensic Psychologist Amy Parsons prepared a psychological evaluation of petitioner for the Board in April 2008. She interviewed petitioner, with the focus to update any information relative to the most recent full evaluation, as well as to deal with any unexamined issues relative to intrapersonal functioning at the time of the commitment offense. She found that petitioner was readily responsive to questions, had no psychomotor abnormality during the interview, made good eye contact, smiled appropriately, was tearful about his sense of loss regarding his family, engaged in thought processes that were linear and goal oriented, had no abnormality in his thought content, appeared to be well-adjusted to his life in prison, appeared to be cognitively intact, demonstrated no impulsivity, exercised adequate judgment in his day-to-day decision making, and approached problem solving in a concrete manner. Parsons noted that since the last report, petitioner had maintained a clean disciplinary record and continued to be a regular participant in Alcoholics Anonymous.
Parsons indicated that petitioner, if released, planned to return to Uruapan, Mexico to live in his father’s home (as he is under an INS hold, and mentioned that his father was currently ill with cancer. He planned to stay there after his father’s death and work the family cattle business, where he thought he could make a good living. He indicated that he hoped to reunite with his wife, but that she had indicated to him that she desires a divorce. He planned to continue a clean and sober life style after release, and stated that he would continue to attend Alcoholics Anonymous meetings in Mexico, and said he was aware of meetings that occurred with a reasonable traveling distance from his home there. He acknowledged that his brother and uncle in Mexico drank alcohol, and indicated that he would endeavor to avoid contact with them when they did.
Petitioner also provided a detailed account of the commitment offense to Parsons. He stated that he drank 24 cans of beer each night before he could “ ‘feel the alcohol.’ ” On the night of the offense, he went to the bar around 5:00 p.m., and that in the course of the evening someone asked him where Pablo and Antonio Seguera Mendoza were. There was a feud between the Mendoza and Ramos families, but he was neutral in the feud. He had only cursory relationships with family members who were actively involved. By 10:30 p.m. that night, he was very intoxicated. A struggle occurred. Someone handed him a gun “ ‘to make someone back up.’ ” He did not know the name of the person on whom he was directed to hold the gun, but “ ‘[he] knew it was a Mendoza.’ ” Suddenly, someone yelled at him to shoot the person, and he felt scared and remembered that it “ ‘took time for him to pull the trigger, as if the situation were slowed down.’ ” He knew that he pulled the trigger, but he did not know how many times. Because of his level of intoxication and the suddenness of the violence, the incident is not clear in his memory.
He identified his alcohol dependence as contributing to his participation in the commitment offense, and reported that he regretted being socially involved with the people at the bar. He stated that “despite the fact that he knew they were involved in criminal behaviors, he chose to be around them and as a result, committed the instant offense and disappointed his family.” He “expressed self-recrimination for his past offenses when he stated, ‘I was acting selfish all my life.’ ” When asked about his earlier denials of his culpability for the offense, he stated that initially, he was afraid his family members would be in danger because of the ongoing feud if he admitted culpability, that he had difficulty accepting that he had been involved in the crime, and that he had difficulty remembering the offense. He said he felt relief when he finally admitted he was guilty. He became tearful when he considered that his victim had been taken from his children and said that he had put himself in that position.
Parsons included the following in her assessment of petitioner’s risk to the public if he were released: “[Petitioner’s] description of the instant offense did include detail and his admission that he did fire the gun at the victim. He admitted that he was intoxicated and should not have been keeping company with people who had guns due to his probation status at the time of the offense. In this evaluator’s opinion, it is likely that his intoxicated state and the traumatic nature of the incident contributed to [petitioner’s] fuzzy memory of it. However, in this evaluator’s opinion, [petitioner] tended to downplay the criminality of his lifestyle prior to the instant offense. His insight into his former criminal behaviors appeared to be somewhat limited. For example, he stated that although he knew the people around him were trafficking narcotics, he was not involved in the criminal behavior. He stated that when he was arrested for shooting a handgun in the air, he had found the gun in a parking lot and was just checking to see if it was loaded. To his credit, he has not been violent or impulsive in custody and has participated in self-help groups when they have been available. Additionally, he did not communicate any negative attitudes about his incarceration or the institution’s staff.
“As for the ‘management of future risk’ domain, parole will provide many challenges to [petitioner]. [Petitioner] cited his ongoing affiliation with AA as a coping tool to help him to avoid alcohol use relapse. However, he has not developed an adequate alcohol relapse prevention plan at this time. To his credit, [petitioner] was receptive to the idea of developing a more detailed relapse prevention plan at interview and agreed it would be helpful for him to acquire a relapse prevention workbook in his preparation for parole. [Petitioner] stated that he believes his wife is planning to divorce him and not join him in Mexico after his parole. The loss of the supportive relationship will be emotionally destabilizing for [petitioner] when he paroles. Additionally, he has not lived in Mexico for a number of years. His re-entry to his native country will likely involve some cultural readjustment and stress.”
Parsons concluded that, based on a combination of her clinical interview, review of the available records, and the current risk assessment estimate, petitioner posed a low to moderate risk to become involved in a violent offense if released into the community.
The 2008 Board Hearing
In the 2008 hearing with the Board, petitioner, in discussing when he first took responsibility for the commitment offense, said that he had admitted it in 2002 to the Board, and that perhaps the 2005 report stating that he denied responsibility was mistaken. He said he was “involved in the shooting.” All that he could remember was that somebody gave him a weapon when his cousin was fighting with the victim. He did not remember how many shots he fired, but did remember that he had “something to do with the death of that person.” He did not have any weapons with him at the bar, but was given one by one of the relatives of the Mendoza Peron or Mendoza family, who he knew by a nickname; however, he “never [had] any relationship with any of them.” He said that “[t]hey gave me the weapon supposedly like they said, here, to protect you from anything that might happen.” He did not know Sanchez, and acknowledged only after repeated questioning that at the time he shot Sanchez, Sanchez did not pose a threat to him.
The Board reviewed petitioner’s statements in his psychological evaluation regarding his early drinking and alcoholism after his mother’s death, his participation in Alcoholics Anonymous since approximately 1995, and his 15 years of sobriety. A Board member asked petitioner if he had prepared a substance abuse relapse prevention plan, as recommended by his evaluating psychologist, and petitioner said that he had. However, when the Board member asked to review it, petitioner stated, “I don’t have it here but I had to look down in Mexico where these programs are. That’s the main focus that I want to be, focus when I get out. In Mexico there are, but there’s different where I want to be located, but I will find those programs, you know, or AA membership, you know.” When asked if his plan was to find them when he went to Mexico, petitioner stated, “Probably I would find them from here. If I, you know, like I, yeah, any writing to my family members and find me a place over there.” When one commissioner stated that this was not the kind of plan the psychologist had in mind, petitioner stated: “Working on my liabilities to, you know, keep sober, you know, in other words, being sober with my steps and try to find the groups over there where they provide you the support, the help with those members and help others. That’s how I figure how I can do it.”
The People opposed petitioner’s release. A deputy district attorney appeared before the Board and argued that petitioner’s circumstances had changed significantly since 2007 because his wife was now divorcing him, ensuring that he would be without that relationship and likely deported to Mexico. He further argued that petitioner had not developed a plan for substance abuse prevention as Parsons had told him to do.
The deputy district attorney also pointed out a number of inconsistencies between petitioner’s statements to the Board and his criminal record before the murder. This included his arrest for gun possession, when he was seen holding a gun in the air; petitioner had told the Board that the police had found the gun in the parking lot and arrested him because he was on probation at the time. Petitioner also had told the Board that he had only used cocaine once, when the 1991 probation report indicated he had said he used cocaine often.
The deputy district attorney concluded that petitioner was “a risk because he can’t and won’t admit what he did, can’t and won’t be truthful with anybody about his alcohol issues, his state of intoxication or lack thereof that night, and the real motivation for engaging in the shooting, nor is he being truthful or honest about his preoccupation with firearms. He has lousy parole plans.... He has no insight[.]”
Petitioner’s attorney argued that he had been truthful since 2005, had had a hard time admitting he was an alcoholic, had an excellent prison record, and that the psychologist’s evaluation that he was a “low to moderate” risk was a supportive evaluation. Petitioner said he was a new person, with the support of his family, had made mistakes and paid for them, did not resent anyone, and would restart his life if given the chance.
The 2008 Board’s Decision
The Board announced its decision to deny parole at the end of the hearing. Although the Board found his family support and job offers in Mexico were adequate, and that he had made significant gains, it found petitioner was not suitable for parole for several reasons after weighing the factors referred to in California Code of Regulations, title 15, section 2402. First, the commitment offense was a brutal crime in which petitioner shot the victim in the back four times, although the victim was not a part of the feud between the Mendoza and Ramos families, nor a danger to petitioner. Whether petitioner shot the victim as part of the feud or because he was drunk and scared, his motive was trivial.
Second, the Board found petitioner to be a “poor historian” regarding his prior commitment offenses, which was a “tremendous concern” to the Board, given his extensive adult record, which indicated an escalating pattern of criminal conduct.
Third, the Board found that the psychological evaluation was not supportive of release, and indicated that petitioner needed a longer period of observation. The Board was concerned that he had not sufficiently participated in self-help, given that he did not admit to a problem with alcohol or drug use until 2005, 10 years after he began participating in Alcoholics Anonymous. The Board was also concerned that he had wavered in the past about whether or not he had been drunk when he participated in the murder, and even now contended that he was so intoxicated that he could not remember how many times he had shot the victim.
Fourth, the Board questioned whether petitioner was taking his substance abuse potential seriously because of his failure to develop a workable substance abuse relapse prevention plan that he could exercise in the community, including in Mexico.
Finally, the Board thought he needed to “try to come to a better understanding as to what impact you have made here.” The Board thought he had showed a lack of emotion and remorse, somewhat minimized his part in the murder, lacked insight, and was not taking responsibility. It concluded that he remained unpredictable and a threat.
DISCUSSION
Petitioner argues that the Board’s decision was arbitrary, not based on evidence, and violated his constitutional rights. We review the record to determine whether “some evidence” supports the Board’s determination that petitioner remains a current, unreasonable risk to public safety pursuant to Penal Code section 3041. (Lawrence, supra, 44 Cal.4th at p. 1191; In re Shaputis (2008) 44 Cal.4th 1241, 1246 (Shaputis).) We conclude that “some evidence” supports its decision.
All statutory references herein are to the Penal Code unless otherwise stated.
“ ‘The applicable statutes provide that the Board is the administrative agency within the executive branch that generally is authorized to grant parole and set release dates. (§§ 3040, 5075 et seq.) The Board’s parole decisions are governed by section 3041 and title 15, section [2402] of the California Code of Regulations.... Pursuant to statute, the Board ‘shall normally set a parole release date’ one year prior to the 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....” (§ 3041, subd. (a), italics added.) Subdivision (b) of section 3041 provides that a release date must be set “unless [the Board] determines that the gravity of the current convicted offense or offenses, 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.” (Italics added; [Citation], fn. omitted.)’ (Lawrence, supra, 44 Cal.4th at pp. 1201-1202.)” (Shaputis, supra, 44 Cal.4th at p. 1256; see also Cal. Code Regs., tit. 15, § 2281 [“Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.”) “ ‘Accordingly, parole applicants in this state have an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation.’ ” (Shaputis, at p. 1258.)
Title 15, section 2402, of the California Code of Regulations sets forth the factors to be considered by the Board in carrying out the mandate of the statutes. These factors 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.” (Cal. Code Regs., tit. 15, § 2402, subd. (b).) Section 2402, title 15 of the California Code of Regulations is designed to guide the Board’s assessment of whether the inmate poses “an unreasonable risk of danger to society if released from prison,” and thus whether he or she is suitable for parole. (Id., § 2402, subd. (a).) It also lists several circumstances relating to unsuitability for parole—such as the heinous, atrocious, or cruel nature of the crime, or an unstable social background; and several circumstances relating to suitability for parole—such as an inmate’s rehabilitative efforts, demonstration of remorse, and the mitigating circumstances of the crime. (Id., § 2402, subds. (c), (d).) The regulation explains that the foregoing circumstances “are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel.” (Id., § 2402, subd. (c).) Furthermore, “[c]ircumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.” (Id., § 2402, subd. (b).)
The Supreme Court concluded “in Lawrence that because the aggravated nature of a commitment offense does not, in every case, provide relevant evidence that an inmate remains dangerous, and a focus upon the egregiousness of the commitment offense to the exclusion of other relevant evidence has proved in practice to obscure the core statutory emphasis upon current dangerousness, the manner in which courts apply the some evidence standard in evaluating the evidentiary value of the gravity of the commitment offense requires some clarification. [¶] Accordingly, ‘the determination whether an inmate poses a current danger is not dependent upon whether his or her commitment offense is more or less egregious than other, similar crimes. [Citation.] Nor is it dependent solely upon whether the circumstances of the offense exhibit viciousness above the minimum elements required for conviction of that offense. Rather, the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense. This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate’s psychological or mental attitude. [Citation.]’ (Lawrence, supra, 44 Cal.4th at p. 1221].)” (Shaputis, supra, 44 Cal.4th at pp. 1254-1255.)
“Thus, ‘the Board... may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate’s criminal history, but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. [Citation.] Accordingly, the relevant inquiry for a reviewing court is not merely whether an inmate’s crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor.’ (Lawrence supra, 44 Cal.4th at p. 1221.)” (Shaputis, supra, 44 Cal.4th at p. 1255.)
The Board, in denying parole to petitioner, stated numerous grounds for doing so. Among other things, the Board found that the commitment offense was a “brutal crime” and found petitioner to be a “poor historian” regarding his prior commitment offenses. It stated that petitioner needed to “try to come to a better understanding as to what impact he had in killing Sanchez. ” The Board thought he had showed a lack of emotion and remorse, and had engaged in some “minimization” of his part in the murder, and a lack of insight and taking of responsibility. The Board told petitioner that “[u]ntil progress is made, you certainly do continue to be unpredictable and a threat.”
Petitioner argues that he should be granted relief in keeping with that granted to the petitioner in In re Gaul (2009) 170 Cal.App.4th 20, which was recently issued by the Second Appellate District. We do not agree. In Gaul, the petitioner pled guilty to second degree murder in 1991, admitted his involvement in the murder soon after committing it, and agreed to cooperate with the People and to testify at the trial of another participant in the crime. (Id. at p. 25.) The district attorney and the trial judge subsequently described him in 1994 at sentencing as having fully cooperated with law enforcement and the prosecution of the other participant since his early admission of guilt, and that he continued to express “ ‘extreme remorse for his actions and fully and completely accepts responsibility for what he has done.’ ” (Id. at pp. 25-26.) A correctional counselor report prepared shortly before Gaul’s fifth parole suitability hearing in 2004 stated that Gaul “ ‘[had] taken the time to insightfully assess the crime he has committed, understand why he did it, and undertaken efforts to avoid similar behavior[,]’ ” and urged his release, stating that he would be “ ‘an asset to society if released at this time.’ ” (Id. at pp. 27-28.) These facts are significantly different from those presented here.
We detail petitioner’s changing and inconsistent statements regarding the commitment offense, his drinking, and how he came into possession of a gun on the night of the murder in the discussion section of our opinion in case No. A120455. We incorporate this discussion by reference herein. Nothing was added to the record after the 2007 hearing that alters our conclusion in that case. That is, the many changes and inconsistencies in his accounts, along with the brutal nature of the commitment offense, indicate that petitioner in 2008 still lacked insight into his part in the murder, and did not take sufficient responsibility for his part in it, rendering him still unpredictable and a current, unreasonable risk of danger to society.
Indeed, petitioner’s statements to Parsons and the Board in 2008 create more concerns about his insights and willingness to take responsibility. As the Board indicated, he is a “poor historian.” For example, his statements to Parsons indicated that he “chose to be around” his crime partners although they were involved in criminal behaviors, suggesting that he did in fact know his cousins somewhat, and their criminal activities, but he told the Board in 2008 that he never had any relationship with any of them. Furthermore, he acknowledged to the Board that the victim posed no threat to him only after repeated questioning from a Board member.
Regarding his pre-commitment offense crimes, he told Parsons that his conviction for gun possession occurred because he had innocently picked up a gun he found in a parking lot to see if it was loaded, while his comments to the Board indicated the police had found the gun in the parking lot and arrested him as he left a bar simply because he was on parole. Along with the apparent inconsistency, both stories show that he continues to deny his unlawful use of a gun in that instance. Petitioner points out that the Board erred in referring a conviction for assault with a deadly weapon, which did not actually occur. However, it was undoubtedly harmless in light of the other evidence we discuss herein.
The Board was also concerned that petitioner was not taking his substance abuse potential seriously enough because of his failure to show evidence to the Board that he had developed a workable substance abuse relapse prevention plan that he could exercise in the community, including in Mexico. There can be no dispute that petitioner’s continued sobriety is essential if he is to avoid posing an unreasonable risk of danger to society after his release. Petitioner’s inability to show the Board a workable substance abuse relapse prevention plan when asked to do so at the 2008 hearing, despite Parsons’s recommendation to him some time before the hearing that he prepare one, and despite his stating to the Board that he had in fact prepared one, was a telling demonstration that he cannot yet be trusted.
In light of our conclusion, we do not need to discuss the other bases for the Board’s ruling, or other arguments made by the parties.
DISPOSITION
The writ is denied.
We concur: Kline, P.J., Richman, J.