Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Superior Court County of San Luis Obispo, Michael L. Duffy, Judge, No. F213075 (HC-2))
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Jennifer A. Neill, Supervising Deputy Attorney General, Charles Chung, Deputy Attorney General, for Appellant Warden.
Rich Pfeiffer, under appointment by the Court of Appeal, for Respondent Canales.
PERREN, J.
Richard Subia, Warden of Mule Creek State Prison (Warden), appeals the trial court order granting inmate Armando Canales's petition for writ of habeas corpus. The order vacated the decision of the Board of Parole Hearings (Board) that Canales was not suitable for release, and ordered his release on parole. Warden contends that the trial court erred because there was evidence to support the Board's finding that the release of Canales would endanger public safety and, therefore, that Canales was unsuitable for parole. We reverse.
FACTS AND PROCEDURAL HISTORY
In April 1994, Canales was driving while intoxicated from alcohol and methamphetamine. Canales continued to drink alcohol while driving and stopped during the drive to consume more methamphetamine. Canales fell asleep at the wheel and, at a speed of 60 to 70 miles per hour, crossed into the opposing lane of traffic colliding with a car carrying four people. The collision killed two of the occupants in the other car. The other occupants also suffered serious injuries.
Canales was charged with two counts of second degree murder and two counts of driving under the influence causing death. (Pen. Code, § 187, subd. (a); Veh. Code, § 23153, subd. (a).) He pleaded no contest to all counts, and admitted allegations that he had two prior felony convictions and prison terms. (§ 667.5, subd. (b).) The 1988 and 1990 prior convictions were for transportation or sale of drugs, and possession of drugs for sale. (Health & Saf. Code, §§ 11351, 11352.) Canales was sentenced to state prison for 15 years to life for the murders. Sentences on the driving under the influence offenses and the prior conviction enhancements were stayed.
All statutory references are to the Penal Code unless otherwise stated.
The Department of Corrections and Rehabilitation set an April 2004 minimum eligible parole date for Canales. The Board denied parole at his March 2003 initial parole consideration hearing.
The Board conducted a parole reconsideration hearing on July 19, 2006. At the hearing, the Board stated the facts of the commitment offenses from the probation officer's report. Canales declined to discuss the commitment offenses himself, but the Board recited a written report of his version of the offenses. Canales's version of the offense was consistent with the probation officer's report.
The Board reviewed Canales's prior criminal record and other relevant pre-commitment offense matters. His criminal record began when he was 19 years old with a 1984 conviction for possession of drugs, and included the 1988 and 1990 felony convictions, a parole violation in 1990 also involving drugs, a 1991 reckless driving conviction, and two speeding convictions in 1992. Canales admitted trafficking in cocaine during the year prior to the commitment offenses, and that he was addicted to the drug.
The Board then discussed Canales's post-commitment offense conduct. Canales performed well in a prison automotive program, got a high school equivalency certificate while in prison, took college courses, participated in 12-step programs for alcohol and drug abuse, and participated successfully in other rehabilitation programs. The Board noted that Canales had no serious disciplinary infractions, but had received three lesser disciplinary actions during the period between his initial 2003 parole hearing and the 2006 hearing. The Board also stated that Canales's participation in 12-step programs had been sporadic until 2000, and that he was unable to recite all of the 12 steps at the July 2006 hearing.
The Board reviewed two psychological evaluations. A 2003 evaluation stated that the only major risk factor for Canales was his drug and alcohol problem, but concluded that his "dangerousness" in the prison environment was below average, would be no greater than average in a community setting, and that the possibility of relapse if paroled was "very small."
Canales discussed his parole plans which included living with his parents, a close relationship with a sister, and good employment prospects. The Board referred to several letters of support for parole, including a letter from a victim of the commitment offense.
The district attorney opposed parole arguing by letter that Canales continued to pose an unreasonable danger to society. The district attorney stated that Canales had received three prison commitments in a very short period of time, and had a history of drug abuse and parole violations subsequent to periods of incarceration. These factors, the district attorney asserted, were warning signs of peril to the public if Canales was paroled. The district attorney acknowledged his commendable behavior as a prisoner, but stated that such good behavior is not representative of behavior free from custodial restraints.
In its decision, the Board concluded that Canales was unsuitable for parole and "would pose an unreasonable risk of danger to society or a threat to public safety if released from prison." The Board referenced his extensive criminal history and lack of success during prior paroles. The Board also concluded that the commitment offenses were committed in a cruel and callous manner, stating that the victims were particularly vulnerable, and that Canales "deliberately and knowingly took extreme risks" by driving under the influence and continuing to consume alcohol and methamphetamine while driving. The Board also noted that Canales continued to minimize his criminality and culpability for the commitment offenses.
The Board acknowledged Canales's commendable institutional behavior, completion of rehabilitation programs, positive psychological evaluations, and realistic parole plans. But, the Board emphasized that Canales had "some work to do to internalize" and fully represent the steps in his 12-step programs for alcohol and drug abuse. The Board also stated that, although Canales had no serious disciplinary actions in prison, three lesser infractions after 2003 showed a negative attitude and raised a likelihood that Canales would continue to break the rules if he were released from prison.
In May 2007, Canales filed a petition for writ of habeas corpus in the trial court arguing that the Board's denial of a parole date was not supported by any evidence. In October 2007, the trial court issued an order to show cause why the petition should not be granted, and appointed counsel for Canales. The Warden filed a return in December 2007 supporting the Board's decision.
On June 23, 2008, the trial court issued its order granting the writ. The court concluded that "[t]here is no evidence... to support the [Board's] conclusion that Mr. Canales' release would unreasonably endanger public safety. But for the immutable nature of the crime, all the applicable regulatory criteria indicated that he was suitable for parole." The order made no further findings.
The Warden filed a notice of appeal, and a stay was granted by the trial court on July 24, 2008.
DISCUSSION
The Warden contends the trial court erred in concluding that no evidence supported the Board's ruling that Canales was unsuitable for parole. We agree, and conclude that some evidence supports the Board's finding that Canales would pose an unreasonable risk to society if released on parole.
Parole applicants have an expectation that they will be granted parole unless the Board finds they are unsuitable for parole in light of the circumstances specified by statute and regulation. (In re Shaputis (2008) 44 Cal.4th 1241, 1257-1258; In re Rosenkrantz (2002) 29 Cal.4th 616, 654.) Section 3041, subdivision (b) establishes a presumption that parole is the rule, rather than the exception, and should be granted unless the Board finds that "consideration of the public safety requires a more lengthy period of incarceration...."
The fundamental consideration in parole decisions is current dangerousness, namely whether an inmate poses a threat to public safety at the time parole is being considered. (In re Lawrence (2008) 44 Cal.4th 1181, 1205; In reShaputis, supra, 44 Cal.4th at p. 1254.) By directing the Board to consider many factors relating to postconviction conduct and rehabilitation, "the Legislature explicitly recognized that the inmate's threat to public safety could be minimized over time by changes in attitude, acceptance of responsibility, and a commitment to living within the strictures of the law." (Lawrence, at p. 1219.) Accordingly, the aggravated nature of the commitment offense may be one reason for finding an inmate unsuitable for parole but, standing alone, rarely provides a valid basis for denying parole where there is strong evidence of rehabilitation and no other evidence of current dangerousness. (Id. at pp. 1211, 1214.)
In evaluating whether a life prisoner will pose an unreasonable risk of danger to public safety if released, the Board considers all relevant, reliable information available. The regulations set forth a nonexclusive list of circumstances tending to show suitability or unsuitability for release. (Cal. Code Regs., tit. 15, § 2402, subds. (c) & (d).) Factors indicating suitability include the absence of a juvenile record, stable social history, signs of remorse, no significant history of violent crime, realistic plans for the future, and commendable institutional behavior. (Id. at subd. (d).) Factors indicating unsuitability include commission of the commitment offense "in an especially heinous, atrocious or cruel manner," previous record of violence, unstable social history, psychological problems, and serious misconduct while incarcerated. (Id. at subd. (c).)
A parole board has substantial discretion to weigh the relevant factors involving an inmate's history and rehabilitation in deciding whether to grant or deny parole, but discretion is not unlimited. Because the paramount consideration is whether the inmate is currently dangerous, the standard of review is whether there is "some evidence" that an inmate continues to pose a threat to public safety, not merely evidence supporting the existence of an unsuitability factor. (In re Shaputis, supra, 44 Cal.4th at p. 1254.) To protect a prisoner's due process rights and to prevent arbitrary decision making, the Board's findings must be supported by a "modicum of evidence." (In re Lawrence, supra, 44 Cal.4th at p. 1205.)
In this case, the record shows that the Board balanced the factors showing suitability for parole against the factors showing unsuitability, and that "some evidence" supported the Board's conclusion that the combination of the commitment offense and the unsuitability factors demonstrated the Canales continues to pose a risk to public safety. (See In re Lawrence, supra, 44 Cal.4th at pp. 1221, 1227.)
The Board found that there was evidence of factors showing both suitability and unsuitability for parole. The Board stated that the institutional behavior and rehabilitative efforts of Canales were commendable, that he received positive psychological evaluations, and that he had realistic parole plans.
Conversely, the Board found that the commitment offenses were committed in an especially cruel and callous manner. The Board also emphasized that Canales had a history of prior convictions, parole violations, and failure to correct his alcohol and drug problems prior to the commitment offense, and Canales continued to minimize his criminality and involvement in the commitment offenses. The Board also concluded that his participation in 12-step programs had not been completely successful, and that the multiple disciplinary actions against him, although not serious, "show that there is something going on... there's attitude, there's failure to follow rules." These findings are largely undisputed and are all supported by at least "some evidence" in the record.
The trial court's order granting the petition for writ of habeas corpus is reversed. The matter is remanded to the trial court with directions to enter a new order denying the petition and reinstating the Board's decision.
We concur: GILBERT, P.J., COFFEE, J.