Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County Case No. HC009630A, John I. Kelly, Judge.
Mark A. Arnold, Public Defender, and Autumn R. Hajmohammad, Deputy Public Defender, for Petitioner Lawrence Canez.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Jennifer A. Neill and Amy Daniel, Deputy Attorneys General, for Respondent State of California.
OPINION
Gomes, J.
In 1982, Lawrence Canez was convicted after trial by jury of first degree murder with use of a firearm and sentenced to a 27-to-life term. In 1984, due to an insufficiency of the evidence of premeditation and deliberation, we modified the judgment from first degree murder to second degree murder and reduced his sentence from a 27-to-life term to a 17-to-life term. (People v. Canez (July 24, 1984, F001882 [nonpub. opn.].) In 2006, a panel of the Board of Parole Hearings (Board) found him not suitable for release on parole. In 2007, the superior court granted his petition for writ of habeas corpus. In February of 2008, the Attorney General appealed the superior court’s order (writ of habeas corpus). In August of 2008, the companion cases of In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence)and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis) clarified the law of parole suitability as originally outlined by In re Rosenkrantz (2002)29 Cal.4th 616 (Rosenkrantz). (Lawrence, supra, at p. 1205.) We will reverse the order (writ of habeas corpus) and remand the matter to the superior court with directions to enter an order directing the Board to reconsider the matter in light of Lawrence and Shaputis within 60 days of the superior court’s order after remand. We will intimate no opinion about whether the Board should find Canez suitable for release on parole.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of January 27, 1982, police found the partially clothed body of Canez’s 20-year-old girlfriend Angel Castruita lying face down in a pool of blood in the back seat of a car parked in an alley in Bakersfield. Arrested that day, Canez, likewise 20 years old, admitted killing her. He said that as they lay together after having sex the previous evening she told him she was going to end her relationship with her boyfriend and tell his (Canez’s) parents that he (Canez) was abusing PCP. Feeling threatened, he fired two shots into her head with a .22 caliber handgun. He put the body into the back seat of a car that he left in the alley. The cause of death was two gunshot wounds to the head.
The facts are from the probation officer’s report, which the Board incorporated into the record of the hearing.
On November 23, 1982, Canez was convicted after trial by jury of first degree murder with use of a firearm and sentenced to a 27-to-life term. (Pen. Code, former §§ 187, 12022.5.) On November 29, 1982, he entered state prison and, coincidentally, commenced service of his life term on that day.
Later statutory references are to the Penal Code.
Canez appealed his conviction, arguing insufficiency of the evidence of premeditation and deliberation. The record showed that he injected PCP just before the shooting and fired both shots so rapidly the second hit Castruita before she fell from the first, that the defense and the prosecution experts both agreed he was under the influence of PCP, that the defense expert testified he lacked the capacity for deliberation, and that the prosecution expert did not testify on that issue. There was no evidence in the record that he kept the loaded gun nearby with a preconceived plan to shoot her. On that record, we modified the judgment from first degree murder to second degree murder and reduced his sentence from a 27-to-life term to a 17-to-life term. (People v. Canez (July 24, 1984, F001882 [nonpub. opn.].) His minimum eligible parole date was determined to be April 20, 1993.
On March 7, 2006, a panel of the Board of Parole Hearings (Board) found Canez not suitable for release on parole. He filed a petition for writ of habeas corpus in the superior court, arguing the lack of some evidence that he would pose an unreasonable risk of danger to society if released from prison. On December 4, 2007, the superior court granted his petition on the ground that the facts of the commitment offense were the sole basis of the denial of parole and that there was no evidence of current dangerousness.
DISCUSSION
1. Governing Law
In August of last year, the companion cases of Lawrence and Shaputis clarified the law of parole suitability as originally outlined by Rosenkrantz. (Lawrence, supra, at p. 1205.) “‘[T]he governing statute provides that the Board must grant parole unless it determines that public safety requires a lengthier period of incarceration for the individual because of the gravity of the offense underlying the conviction. ([] § 3041, subd. (b).) And as set forth in the governing regulations, the Board must set a parole date for a prisoner unless it finds, in the exercise of its judgment after considering the circumstances enumerated in section 2402 of the regulations, that the prisoner is unsuitable for parole. 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.’ (Rosenkrantz, supra, at p. 654; italics added; see also In re Smith (2003) 114 Cal.App.4th 343, 366 [‘parole is the rule, rather than the exception’].)” (Lawrence, supra, at p. 1204.) Prisoners have a constitutionally protected liberty interest in the parole suitability decisions of the Board. (Id. at pp. 1211-1212, citing Rosenkrantz, supra, 29 Cal.4th at p. 664.)
The governing statute and regulations for parole suitability decisions for a prisoner who, like Canez, is serving a sentence for a murder committed on or after November 8, 1978, are, respectively, section 3041 and California Code of Regulations, title 15, sections 2280 et seq. and 2400 et seq. (Cf. Lawrence, supra, 44 Cal.4th at pp. 1201-1202 & fn. 5.)
“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; see Rosenkrantz, supra, 29 Cal.4th at p. 654, fn. omitted.)” (Lawrence, supra, 44 Cal.4th at p. 1202.) The “core determination of ‘public safety’ under the statute and corresponding regulations involves an assessment of an inmate’s current dangerousness.” (Id. at p. 1205.)
“All relevant, reliable information available to the panel shall be considered in determining suitability for parole.” (Cal. Code Regs., tit. 15, § 2281, 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.” (Ibid.) The “fundamental consideration in parole decisions is public safety.” (Lawrence, supra, 44 Cal.4th at p. 1205.)
The regulations articulate circumstances tending to show unsuitability for parole: “(1) a commitment offense carried out in an ‘especially heinous, atrocious or cruel manner’; (2) a ‘[p]revious [r]ecord of [v]iolence’; (3) ‘a history of unstable or tumultuous relationships with others’; (4) ‘[s]adistic [s]exual [o]ffenses’; (5) ‘a lengthy history of severe mental problems related to the offense’; and (6) ‘[t]he prisoner[’]s engage[ment] in serious misconduct in prison or jail.’” (Lawrence, supra, 44 Cal.4th at p. 1203, fn. 7, quoting Cal. Code Regs., tit. 15, § 2281, subd. (c)(1)-(6).) Those circumstances are “general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel.” (Cal. Code Regs., tit. 15, § 2281, subd. (c).)
As to whether the commitment offense was carried out in an “especially heinous, atrocious, or cruel manner” (Cal. Code Regs., tit. 15, § 2281, subd. (c)(1)), the regulations articulate factors for consideration by the Board: “(A) multiple victims were attacked, injured, or killed in the same or separate incidents; (B) the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (C) the victim was abused, defiled, or mutilated during or after the offense; (D) the offense was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering; and (E) the motive for the crime is inexplicable or very trivial in relation to the offense.” (Lawrence, supra, 44 Cal.4th at p. 1203, fn. 7, quoting Cal. Code Regs., tit. 15, § 2281, subd. (c)(1)(A)-(c)(1)(E).)
The regulations articulate circumstances tending to show suitability for parole: “(1) the absence of a juvenile record; (2) ‘reasonably stable relationships with others’; (3) signs of remorse; (4) a crime committed ‘as the result of significant stress in [the prisoner’s] life’; (5) battered woman syndrome; (6) the lack of ‘any significant history of violent crime’; (7) ‘[t]he prisoner’s present age reduc[ing] the probability of recidivism’; (8) ‘[t]he prisoner[’s having] made realistic plans for release or ha[ving] developed marketable skills that can be put to use upon release’; and (9) the inmate’s ‘[i]nstitutional activities indicat[ing] an enhanced ability to function within the law upon release.’” (Lawrence, supra, 44 Cal.4th at p. 1203, fn. 8, quoting Cal. Code Regs., tit. 15, § 2281, subd. (d)(1)-(9).) Like circumstances tending to show unsuitability for parole, circumstances tending to show suitability for parole are “general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel.” (Cal. Code Regs., tit. 15, § 2281, subd. (d).)
In short, since “a parole release decision authorizes the Board … 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,’” the criteria that the governing regulations identify for consideration by the Board “are designed to guide an assessment of the inmate’s threat to society, if released, and hence could not logically relate to anything but the threat currently posed by the inmate.” (Lawrence, supra, 44 Cal.4th at pp. 1205-1206, quoting Rosenkrantz, supra, 29 Cal.4th at p. 655 and citing Cal. Code Regs., tit. 15, § 2281, subds. (c), (d).)
2. Board Hearing
Canez is a 1979 graduate of Foothill High School in Bakersfield. He has no juvenile record and, apart from the commitment offense, no record of violence and only one adult prior, a controlled substance sale for which he was out on bail at the time of Castruita’s murder. He handed an undercover officer some cross-top tablets that a friend and his girlfriend gave him and then handed back to them the money the undercover officer gave him. “I’m going to cop to it, I’m going to cut you two loose,” he told his friend and his girlfriend, once he knew he was going away for murder, “and that’s what happened.”
Asked why he started using drugs, Canez answered, “Just out of curiosity.” The father of his high school sweetheart, with whom he had a son, “sold PCP, and it was free.” He liked the way he felt on PCP. Just a few minutes before Castruita knocked on the door that evening, he had “intravenously put 10 cc’s” of PCP into his arm. Asked if he “killed [her] because she was going to tell [his] mother [he] was using PCP,” he answered, “That was the gist of it, yes.” He compared being on PCP to “watching a black and white movie with no sound, no feeling, no though[t] process.” He acknowledged that the provocation was “trivial” and admitted his conduct was “so callous” that “it was just like a nightmare.”
Canez “clean[ed] up the murder scene” because he “just couldn’t see doing that to [his] mother, having her come home and see something like this.” On awakening the next morning, he “thought it was a dream so [he] went in [his] room and the first thing [he] saw was [Castruita]’s purse, so [he] kn[e]w it was real.” He testified he “didn’t become a suspect because of the investigation” but because of the call he made to the police. He asked, “Did you guys have a – a – a murder last night?” He identified himself, the police came to his house, and he went to the police department, where he confessed.
Asked by a commissioner why he had a “loaded gun, right there,” Canez said a customer who owed him money for an automotive paint job he did just after graduating from high school let him have the gun as collateral. There were no other guns in the house. If the gun had not been there, “It wouldn’t’ve happened,” he testified.
Since the time of the death of Canez’s father, his mother has lived in a bungalow behind the home of his sister and her husband. His parole plans are to live with them. The Board noted the absence of any law enforcement opposition to his parole. He has the addresses of NA meetings to attend on parole.
In the record to support a grant of parole are letters from three welding companies in Kern County expressing interest in hiring Canez, several certificates of achievement in welding courses he completed while in prison, and a character and skills reference letter from the industrial supervisor of the Avenal State Prison welding department. A commissioner characterized his work reports as “exceptional,” the quality of his work as “very good,” and the report of his welding superintendent, showing that his knowledge of welding “had saved thousands of dollars through the years,” as “laudatory.” Additional letters to support a grant of parole are in the record from his mother, his sister, his brother-in-law, his aunt, his niece, his son’s mother, and the tribal chair of the Chumash Council of Bakersfield.
A commissioner characterized Canez’s ten 115s as showing that he got off to a “slow start” in prison. Two of those (both in 1984) were “controlled-substance related.” Canez acknowledged that both were “consistent with what [he] was doing with the PCP.” His last 115 (in 1999) was for manufacturing and distribution of weapon stock, a write-up he attributed to fabrication by a confidential informant whom he could not question. By the time of the hearing, seven years after his last 115, he had worked his classification score – 105 when he entered the prison system in 1982 – down to zero.
Canez’s evaluating psychologist noted that his employment history, “relatively steady since high school,” deteriorated once “his chronic and intensifying PCP use” started “interfering with his daily functioning,” resulting in his being fired twice “for coming to work late.” “Other than the implication inherent” in Canez’s last 115, the psychologist noted, he “has no record of violence or aggression during his incarceration.” “Noteworthy” despite his “early” 115s – two in 1984 for controlled substances, one in 1986 for contraband (money), and one in 1988 for possession of marijuana, all “suggesting drug related behaviors” – was the lack of any “further suggestions of drug involvement” afterward. He has the lowest possible classification score. Noting a series of prior psychological evaluations characterizing Canez’s potential for violence as lower than that of the average inmate, the evaluating psychiatrist reported that he “presents a low risk of future violence” on the basis of all three risk assessment factors – “analysis of background and past behaviors,” “clinical presentation,” and “management of future risk” with the caveat of “the likelihood of continued abstinence from any substance abuse.”
The evaluating psychologist characterized Canez as “first and foremost a substance abuser” who “once demonstrated a reactionary drug influence episode of rage resulting in murder” and who “presents a low risk of future violence.” Asked if he was “angry or in a rage,” Canez replied, “I didn’t feel any.” Asked about his plans to deal with substance abuse if he were paroled, he replied, “I work the Twelve Steps every day,” “I have addresses already for meetings,” “all I need is my family, my self-awareness and good deeds and my meetings, and get a good sponsor that understands me and always be there for me.”
Canez testified he “wanted to make amends,” but no one can “make amends for taking someone’s life,” so he does “positive things, live clean, work [his] Twelve Steps, [and] try to help others in [Castruita]’s memory.” “I still feel shameful, I will always be ashamed,” he said. He chaired the Soledad chapter of Narcotics Anonymous for six years while he was in custody there and still works the Twelve Steps every day at Avenal, where he was in custody at the time of the hearing. Six certificates of appreciation for his work with NA over the years are in the record.
Questioned by his own attorney about how Castruita’s mother and boyfriend looked for her and found her body in the car, Canez said her mother was “the last person that I’d ever want to think that she[] finds her own daughter.” He said he was “very remorseful” and “very sorry” she had to “go through what she did.” He testified, “I don’t have a problem doing my time,” “I’m blessed that the law sees fit to give people a second chance,” and “I just want to grow old with my family.”
The Board found Canez “not yet suitable for parole” on the ground he “would pose and [sic] unreasonable risk of danger to society if released from prison.” The presiding commissioner said the panel was “just not sure that [he] understand[s] why [he] committed the crime in the first place” and suggested that he not only “maybe put pen to paper and retrace [his] feelings, [his] thoughts and [his] activities from that day so that it’s not so cloudy” but also that he “step up [his] self-help.” “In years past there was so much available, now there isn’t as much, and we do know that, and we can’t ask you to do something that you can’t get,” another commissioner added, “but get on the waiting lists and try to work on your understanding of the crime.”
3. Superior Court Proceedings
Canez’s petition for writ of habeas corpus in the superior court argued that the Board’s denial of parole was “arbitrary and capricious” on the ground that “the facts and circumstances of his crime he committed over 24 years ago” on which the Board relied show a lack of “some evidence” that he remains a “‘danger to society.’” The Attorney General’s return to the order to show cause the superior court issued disputed none of the facts but instead argued “that the commitment offense may be used as the sole basis to deny parole.” On those pleadings, the superior court found that there were “no facts in dispute,” that there was no need to “conduct a fact finding hearing,” that the requisite showing of “‘some evidence’” that Canez “poses a present danger to public safety” was absent from the record, and that the basis of the Board’s denial of parole was “speculation substituting as evidence.”
4. Conclusions
As clarified by the Supreme Court after the Board found Canez not suitable for release on parole and after the superior court granted Canez's petition for writ of habeas corpus, the Board’s “core statutory determination” is “whether the inmate poses a current threat to public safety, and the standard of review properly is characterized as whether ‘some evidence’ supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous.” (Lawrence, supra, 44 Cal.4th at p. 1191.) The focus is not on whether some evidence supports the Board’s characterization of the facts in the record but rather on whether there is “‘some evidence’ of the core statutory determination that petitioner remains a current threat to public safety.” (Shaputis, supra, 44 Cal.4th at p. 1254.)
As so clarified, the Board “may base a denial-of-parole decision on 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.” (Lawrence, supra, at p. 1221.) The inference that “a particularly egregious commitment offense always will provide the requisite modicum of evidence” is “inconsistent” with both the Board’s statutory mandate to “consider all relevant statutory factors when evaluating an inmate’s suitability for parole” and “the inmate’s due process liberty interest in parole.” (Id. at p. 1191.) Our duty, then, is to inquire “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.” (Id. at p. 1221.)
Since the Board found Canez not suitable for release on parole before the Supreme Court clarified the governing law in Lawrence and Shaputis, we cannot indulge the normal presumption the Board applied the appropriate standard of parole suitability. (Cf. In re Katrina C. (1988) 201 Cal.App.3d 540, 547-548.) Instead, with no evidence to the contrary in the record, it is more reasonable to assume the Board applied a different and erroneous standard of parole suitability. (Cf. In re Bernadette C. (1982) 127 Cal.App.3d 618, 625.) Since the “paramount consideration” at a Board hearing, as clarified by Lawrence and Shaputis, is “whether the inmate currently poses a threat to public safety,” and since “the inmate’s due process interest in parole mandates a meaningful review of a denial-of-parole decision” (Shaputis, supra, 44 Cal.4th at p. 1254, citing Lawrence, supra, 44 Cal.4th at p. 1191), and since on the record before us we cannot conclude the error was harmless, we will reverse the superior court's order (writ of habeas corpus) and remand the matter to the superior court with directions to enter an order directing the Board to reconsider the matter in light of Lawrence and Shaputis within 60 days of the superior court’s order after remand. (See In re McGraw (2009) 171 Cal.App.4th 251.) We intimate no opinion about whether the Board should find Canez suitable for release on parole.
DISPOSITION
The order (writ of habeas corpus) is reversed. The matter is remanded to the superior court with directions to enter an order directing the Board to reconsider the matter in light of Lawrence and Shaputis within 60 days of the superior court’s order after remand.
WE CONCUR: Cornell, Acting P.J., Hill, J.