Opinion
NOT TO BE PUBLISHED
Original proceeding; petition for a writ of habeas corpus to challenge an order of the Superior Court of Orange Count No. M-12190y, Thomas J. Borris, Judge. Petition granted.
Leopoldo Cordero Garcia, in pro. per.; Steve M. DeFilippis, under appointment by the Court of Appeal, for Petitioner.
Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Assistant Attorney General, Jennifer A. Neill and Charles Chung, Deputy Attorneys General for Respondent.
RYLAARSDAM, J.
Petitioner Leopoldo Cordero Garcia petitioned this court for a writ of habeas corpus after the Board of Parole Hearings denied parole. We reviewed the transcript of the proceedings before the Board and the exhibits it considered. The record supplied fails to contain “some evidence” petitioner poses a current threat to public safety and, therefore, the Board erred in failing to grant parole. We will remand the case to the Board of Parole Hearings with instructions to vacate its decision and conduct a new parole hearing. At the new hearing, the Board shall find petitioner suitable for parole, unless either previously undiscovered evidence or new evidence subsequent to the last parole hearing regarding petitioner’s conduct, circumstances, or change in his mental state support a determination he currently poses an unreasonable risk of danger to society if released on parole.
FACTS AND PROCEDURAL BACKGROUND
In 1976, petitioner, then 28 years old, was convicted by a jury of robbery, kidnapping, assault with a deadly weapon, assault with a deadly weapon on a peace officer, and first degree burglary. He received seven-years-to-life sentence and first became eligible for parole in 1983. We recite the trial court’s description of his crimes contained in its order denying petitioner’s petition for habeas corpus.
While on parole, petitioner “devised a plan to commit a robbery to get enough money to leave the state. He obtained a gun, entered a store with the intention to steal jewelry, took a tray of rings worth over $6,000, and ran. He was chased by a security guard. Petitioner dropped about half of the rings in his flight. He and the guard engaged in a gun battle in the parking lot. They were each wounded. Petitioner then forced another individual to drive him from the scene, down the freeway. A little while later, a police pursuit ensued. Petitioner was eventually apprehended, but not before he threatened a third individual with the gun. That person escaped.”
After the hearing the Board denied parole and issued a detailed, 10-page decision explaining the circumstances on which it relied in determining that petitioner was “not yet suitable for parole and would pose a reasonable risk of danger to society or a threat to public safety if released from prison.” These circumstances consisted of the following: (1) the commitment offense; (2) petitioner’s prior record; (3) institutional conduct; (4) the psychological report; and (5) petitioner’s parole plans. We considered each of these circumstances as reflected in the record as discussed below.
DISCUSSION
1. The Commitment Offense
In the statement of decision, Presiding Commissioner Eng noted the calculated and dangerous nature of the commitment offense. She pointed to the “total disregard for human safety whatsoever.... [It]... put a lot of people through a lot of terror.... [T]here is a huge police pursuit, including a helicopter[,] and that basically put a whole lot of lives and the entire community... in danger. That was a total disregard for the community at large. It didn’t stop there. He takes off and is jumping over fences and through yards, so this was a long drawn-out incident that occurred with a lot of different people that were put at risk.”
No doubt, the crime was horrendous and easily could have led to the death of many people. Petitioner’s total disregard for the property and safety of others cannot be excused or treated lightly. Its egregiousness deserves the strongest condemnation.
In re Lawrence (2008) 44 Cal.4th 1181 teaches that “when 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.” (Id. at p. 1212, italics omitted.) But the commitment offense, standing alone does not, except in unusual circumstances, provide “some evidence [that] supports the decision of the Board” to deny parole. As the court noted, “[E]vidence suggesting a commitment offense was ‘especially heinous’ or ‘particularly egregious’ will eternally provide adequate support for a decision that an inmate is unsuitable for parole.” (Id. at p. 1226.)
In re Lawrence did recognized that the nature of the commitment offense may constitute the requisite evidence of a current threat, but it conditioned this holding on situations “such as those in which the inmate has failed to make efforts toward rehabilitation, has continued to engage in criminal conduct postincarceration, or has shown a lack of insight or remorse....” (In re Lawrence, supra, 44 Cal.4that p. 1228.) We therefore cannot find support for the denial of parole in the nature of the commitment offense, unless the other factors considered by the Board provide some evidence to support its decision.
2. Petitioner’s Prior Record
Petitioner also presents a sorry record of delinquent conduct, starting at age 10 when he stole a bicycle. At age 16 he was committed to the Youth Authority, followed by a second commitment and parole. During a two-year period in the late 1960’s “he had numerous arrests. Grand theft auto, auto theft, drug arrests.” When he moved to Texas, he was sentenced to prison for armed robbery. After serving about three years, he returned to California where he continued his life of crime. There were several more arrests and he was again sentenced to prison. While on parole from that incarceration he committed the crime for which he is now imprisoned.
As with the crimes for which he is presently committed, there is nothing in petitioner’s previous history that is commendable. It is a sorry history of an anti-social, misguided youth.
Yet, as with the commitment offence, the facts here are static. Under the analysis of In re Lawrence, we cannot find support for the denial of parole in the nature of the crimes preceding petitioner’s commitment offense, unless it is demonstrated they are indicative of petitioner’s present danger to society. In doing so, we must evaluate whether the other factors considered by the Board provide some evidence to support its decision.
3. Petitioner’s Institutional Conduct
The Board’s decision stated “[i]nstitutionally,... he’s been programming okay, he has obtained some vocations. His misconduct, however, while incarcerated does include three 128A counseling chronos, the last one being in July of 1985 where he did not have an I.D. card, and he has had [10] more serious 115 disciplinaries, the last one being in August 2004 for mutual combat.” “A ‘Custodial Counseling Chrono’... documents minor misconduct and counseling provided for it. [Citation.]” (In re Roderick (2007) 154 Cal.App.4th 242, 269, fn. 23.)
While incarcerated, petitioner gained experience in electronics and major appliance repair. Also, in 2001 and 2002, he trained as a computer tech and in computer repair and, in 2004, received a certificate in “vocational computer refurbishing.” He acknowledged that the field has advanced since he received his training. At the time of his incarceration petitioner was a ninth-grade drop out, but he obtained his GED while in prison.
Petitioner participated in anger management classes and had been active in Alcoholics Anonymous for 15 years. He gave specific details about his participation in this program. He last used methamphetamine in 1985 and became infected with hepatitis C as a result. His last discipline was in 2004 for mutual combat; but petitioner produced a letter from Correctional Officer Ramos, wherein Ramos explained the incident. Petitioner was attempting to soothe Harris, another inmate, after the latter was “upset over something else and not in a good mood....” Ramos stated, “Being the regular officer in the wing at the time, I can say there was never any hostility, before or after the incident, between Garcia and Harris, only friendship and camaraderie. The incident should not be a negative factor in assessing Garcia’s suitability for parole. To the contrary, I believe Garcia demonstrated restraint and compassion.”
Other than this incident, the most recent disciplinary citation mentioned in the hearing transcript was in 1992. A partial transcript of an earlier parole hearing references a 2000 disciplinary report for the possession of a controlled substance. The transcript follows this entry with the statement, “It’s commonly agreed by most commissioners that a... rule of having five years between... is a good indicator and I think you’ll generally find that most commissioners would use that. So, to your credit, that one’s past you. It’s in the rear view mirror.”
4. The Psychological Report
The Board considered a report dated July 15, 2007 prepared by Richard Starrett, Ph.D., a forensic psychologist. The report noted that petitioner, who had dropped out in the ninth grade, completed his GED while incarcerated, had a number of college units, and had studied to be a paralegal. He also received vocational training in electronics and major appliance and computer repair. In addition to his 15-year affiliation with Alcoholics Anonymous petitioner had completed a number of self-help groups. Starrett reported “no serious mental health concerns at the current time,” but noted that, based on his history, petitioner “would also meet the diagnostic criteria for Antisocial Personality Disorder.”
Tests administered by Starrett disclosed that petitioner scored “in the high end of the low range of psychopathy, or at the 25th percentile relative to the population of incarcerated males....” (Bold and italics omitted.) Based on historical factors, petitioner “would rate in the high range in his propensity for future violence.” (Underscoring omitted.) But this was based on petitioner’s criminal history preceding incarceration. Based on clinical review and insight petitioner displayed, Starrett opined that petitioner “would rate in the low range in his propensity for future violence....” (Underscoring omitted.) Petitioner’s insight was found to be appropriate.
We fail to find evidence in the psychologist’s report that petitioner’s psychological state “constitutes a current threat to public safety.” (In re Lawrence, supra, 44 Cal.4th at p. 1212.)
5. Petitioner’s Parole Plans
The record contains a letter from one Mel Hernandez, on the letterhead of Mel’s Auto Servicein Inglewood, California, offering to “provide employment, residence and other support as needed” for petitioner. In addition, there is a letter from Maria Ramos, petitioner’s oldest sister, advising the Board that petitioner has family in Texas, New Mexico, and California who will assist petitioner “in reintegrating into society upon his release.” In his statement explaining the Board’s ruling, Presiding Commissioner Sawyer characterized these parole plans as “very solid.”
6. Conclusion and Remedy
In summary, the only part of the record supporting the Board’s decision is the nature of petitioner’s crime and his preceding criminal history. The Board’s statement of decision emphasizes this conduct and we must agree that petitioner’s conduct deserves only the strongest censure. But we are not persuaded that, standing alone, this justifies the denial of parole.
“Judicial review of decisions by the Board or the Governor to deny parole to inmates serving indeterminate life terms is governed by the highly deferential ‘some evidence’ standard of review. [Citation.] Until recently, appellate courts have struggled to apply this standard but In re Lawrence (2008) 44 Cal.4th 1181, 1205... and the companion case, In re Shaputis (2008) 44 Cal.4th 1241..., have now clarified that a decision to deny parole comports with due process only if there is a rational nexus between the relevant statutory factors as found by the Board or the Governor and the determination that the inmate would present a current danger to the public if released. [Citation.]” (In re Criscione (2009) 173 Cal.App.4th 60, 65.)
We follow the remedy outlined in In re Rico (2009) 171 Cal.App.4th 659. There, after the court found that the Board’s decision to deny parol was unsupported, it concluded that “[r]emand to allow the [Board] another opportunity to simply restate the basis for its decision is unwarranted on the record before us. The [Board] has stated the basis for its unsuitability finding, and that finding was not supported by ‘some evidence.’ Further articulation of that flawed decision is unnecessary. [Citations.]” (Id. at p. 687.) We therefore order the Board to vacate its decision finding petitioner unsuitable for parole and, “unless new information, either previously undiscovered or discovered subsequent to the [prior] hearing, supports a determination that [petitioner] poses an unreasonable risk of danger if released on parole,” find him suitable for parole. (Id. at p. 688.)
DISPOSITION
The petition for habeas corpus is granted. The California Board of Parole Hearings shall vacate its decision finding petitioner unsuitable for parole. Within 60 days after the issuance of the remittitur herein, the Board shall conduct a new parole suitability hearing. At that hearing the Board shall find petitioner suitable for parole unless, either previously undiscovered evidence or new evidence subsequent to the last parole hearing, regarding his conduct, circumstances, or change in his mental state, supports a determination petitioner currently poses an unreasonable risk of danger to society if released on parole.
WE CONCUR: SILLS, P. J., MOORE, J.