Opinion
D059853 Super. Ct. No. HC20047
12-20-2011
In re OSCAR MAELA on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Original proceeding on a petition for writ of habeas corpus. Petition denied.
In 1988, a jury convicted Oscar Maela of second degree murder (Pen. Code,§ 187) and also found he personally used a firearm to commit the offense (§ 12022.5). The court sentenced him to prison for a total of 17 years to life. Maela, at age 22, begin serving his indeterminate term in 1988 and first became eligible for parole on September 10, 2002. After multiple unsuccessful parole hearings, the Board of Parole Hearings (the Board) again found him unsuitable for a release date at his July 7, 2009 suitability hearing and denied him parole, setting a new suitability hearing in three years.
All statutory references are to the Penal Code unless otherwise specified.
After the trial court denied a request for habeas relief, Maela filed the present petition for writ of habeas corpus. Maela asserts the Board's conclusion is not supported by some evidence that, if paroled, he would be a current danger to the public. He also contends the application of Marsy's Law to increase his time between parole suitability hearings violates the federal Constitution's ex post facto provision. Because we conclude the Board's decision is supported by some evidence and the application of Marsy's Law to Maela does not violate ex post facto principles, we deny the petition.
Marsy's Law or Proposition 9, which the electorate approved November 4, 2008 and became effective November 5, 2008, changed certain aspects of California's parole system, including amending section 3041.5, subdivision (b) regarding the frequency and availability of parole hearings for petitioners not found suitable for parole.
FACTUAL AND PROCEDURAL BACKGROUND
The Commitment Offense
Maela's conviction for second degree murder was upheld on appeal. (See People v. Maela (Feb. 7, 1990, D008295) [nonpub. opn.].) We repeat the facts contained in this court's opinion.
On the night of December 27, 1987, Javier Torres died from a bullet to his back. The night of his death, Torres and Martin Vasquez went to an apartment complex in south San Diego to purchase PCP.
Maela, John Adame, and four female acquaintances came to the apartment complex that night to purchase marijuana laced with PCP. Maela waited outside while Adame went to an apartment with one of the girls to purchase the drugs. When leaving, Adame became involved in a fight with Vasquez, who was entering the complex. This initial fight ended, and Adame proceeded out of the complex to the street. Once in the street, Vasquez and Adame again fought. During this second fight, several more men joined in. Sometime during this second fight, Maela retrieved a gun from his car, returned to the scene of the altercation and fired several shots. At trial, contradictory testimony was given as to who initiated the altercation, how many men were involved in the second fight, and when the shots were fired.
Adame testified Vasquez initiated the fights. Adame stated he was beaten by five to six men and feared for his life. He also stated he was losing consciousness and did not hear or see Maela shoot the pistol.
Three of the women who had accompanied Adame and Maela to the scene testified there were three or four men beating Adame, and they feared for his safety. One of the women stated the men attacking Adame began running from the altercation before any shots were fired. Another of the women testified the men did not begin to run away until Maela fired one shot into the air. However, this testimony was impeached by earlier statements the witness made to the police that the men began running before any shots were fired.
Vasquez testified Adame started the fight. He further testified another man began helping Adame. Vasquez stated he then called for help from Torres and began to run when they learned Maela had a gun and before any shots were fired.
Contradictory testimony was given concerning when the first shots were fired. However, it was generally agreed several shots were fired after the attackers began running from the scene. There was no testimony Maela shot Torres while Torres was beating Adame.
Maela's Preconviction History
Maela grew up in Chula Vista. His father died when he was one year old, and his mother remarried. Maela did not get along with his stepfather.
Maela did not complete the ninth grade. He joined a gang at age 12 and began drinking alcohol and using drugs at that time. He admits to having used LSD and smoking marijuana laced with PCP.
Maela's Criminal History and Postconviction Conduct
As a juvenile, Maela committed multiple offenses, which consisted of burglary, battery, vandalism, shooting into a residence, and theft of firearms. In regard to shooting into a residence, Maela admitted he fired a shot through the window of a residence on July 7, 1981, when he was only 16 years old. He had been at a party drinking beer and bought a "four way hit" of LSD. He first fired a shotgun in the air. When an unidentified man questioned this act, he fired a shot through his window "just to scare him."
After the firearms offense, Maela was committed to the California Youth Authority (CYA) from July 23, 1981 until January 3, 1983. He was discharged from CYA on November 13, 1986. As an adult, Maela also was arrested for disorderly conduct and loitering.
Prior to committing his life offense, Maela had been living with his wife, a daughter (age two), and a son (age four). He experienced some domestic problems with his wife and was charged with assault. The charges were eventually dropped.
Maela's initial postconviction behavior was far from exemplary. While he was awaiting sentencing for his conviction of second degree murder, Maela attempted to escape while confined in the San Diego County Jail, South Bay Detention Center, but was apprehended. Unfortunately, this incident was merely the beginning of a string of problems for Maela.
A jury convicted Maela of attempted escape from lawful confinement (§ 4532, subd. (b)). His conviction was upheld on appeal. (See People v. Maela (July 25, 1991, D009998) [nonpub. opn.].)
Beginning September 16, 1989 and continuing until August 20, 1996, Maela was the subject of 13 rules violation reports, with his conduct including refusing to work, possession of weapons, fighting, stabbing an inmate, and participating in a race riot. Maela, however, did not receive any rule violation report for substance abuse.
Maela has been discipline free since August 1996. In addition, Maela "debriefed" from the Mexican Mafia gang in 2000. He earned his GED and enrolled in classes at Coastline Community College. Maela obtained his certification in masonry and plumbing. He also received proficiency certificates in textiles and as a chemical handler working at the detergent plant. Maela worked in optical, as a clerk for education, as a cook, porter, building clerk, bilingual clerk, and on yard crew. He received positive reports for all jobs and classes he attended.
Maela attended Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) classes and received certificates of two-year completion for both programs in 2005. In January 2009, Maela volunteered for the Amity program and was hired as a peer mentor in March 2009. Amity is a substance abuse program that allowed Maela to be both a participant and a mentor.
Maela received 20 laudatory chronos from correctional counselors and other prison personnel attesting to Maela's good work with Amity; his volunteering to paint, clean, and maintain facilities as well as designing, fabricating, and instructing three therapeutic modules; and his attendance in the creative conflict resolution workshop.
In his 2008 psychological evaluation, the psychologist noted Maela "shows remorse, and appears to take responsibility for his offense, without rationalizing." The psychologist determined Maela does not have current anti-social personality traits or any mental illness that would make him a risk to society. In addition, the psychologist stated, both clinical and objective measures of risk rate Maela as low for psychopathy, future violence, and reoffending.
The psychologist also indicated Maela demonstrates awareness of the contributing role drugs and alcohol played in his life offense and noted Maela has attended AA and NA groups while abstaining from using all substances while incarcerated. In conclusion, the psychologist commented that Maela's "maturity and positive behavior appear to reflect an internalized set of prosocial values" and "[h]is behavior now appears stable and habituated."
The 2008 Suitability Hearing
At the August 6, 2008 suitability hearing, although the Board commended Maela on his progress, it denied him parole. The Board based its decision on the circumstances of the commitment crime, Maela's history of violence and criminal activity, and his unstable social history. The Board also found Maela's self-help programming efforts were "weak somewhat."
The Board set a new hearing for a year later and recommended that Maela avoid any further disciplinary problems, continue programming, select a primary parole plan, prepare some book reports regarding self-help issues, and form a relapse prevention plan.
The Present Proceeding
Suitability Hearing
At Maela's July 7, 2009 suitability hearing, the Board reviewed and considered Maela's central file, prior transcripts, the 2008 psychological evaluation, and additional documents regarding programming and parole plans provided by Maela's attorney. The Board stated both the District Attorney's Office and the San Diego Police Department sent letters urging the Board to deny Maela parole.
Per Forensic Assessment Division guidelines, psychological evaluations completed prior to 2009 remain valid for three years. As such, a new psychological evaluation was not prepared for the 2009 suitability hearing, but, in a letter dated January 21, 2009 written to the Board, a psychologist confirmed the information contained in the 2008 evaluation.
Maela agreed to discuss all matters with the Board. He admitted that he began using drugs and alcohol at age 12 and had been in a gang "as long as [he] can remember." The Board noted Maela had seven siblings and asked Maela why they never got involved in gangs although Maela did. Maela responded, "I think I'm a little embarrassed by my reply, but I think maybe I was a little more needy [sic] than they were emotionally." Maela further elaborated that he became part of a gang because he was a follower and was seeking acceptance.
The Board probed Maela's extensive criminal history. Maela explained his thinking in trying to escape jail: "I mean I was an idiot. I was confused. I was hurting. . . . It was right after I got sentenced and I guess I didn't want to take responsibility for what I had done and I was just looking for an easier way out." Maela also did not make excuses about assaulting his wife: "I was just inconsiderate doing what I wanted to do and that basically was the stem of all our problems. I just wanted to act like a bachelor instead of taking the responsibilities of a husband and of a father and of a friend."
The Board also discussed in detail Maela's commitment crime. Maela candidly answered the Board's questions about the crime, which lead to the following exchange:
"Inmate Maela: For a long time I had a problems trying to deal with that [the death of Torres]. I guess I wasn't mature enough to look into the gravity of the crime that I committed. All I seen was gang members, unfortunately. That's all I was looking at and now I've had the opportunity to reflect and to put myself in the other person's shoes and to understand that he left a void, that he left a void in his family's lives.
"[Board]: No, you left the void in his family's life.
"Inmate Maela: That's correct, sir.
"[Board]: Okay.
"Inmate Maela: That's correct. Let me restate that. My actions left a void in that man's life. . . . I don't know if there's any kids out there growing up fatherless because of my action, my inconsideration and my uncompassionate action and it grieves me. . . . [T]here's [no] way that I can justify what I did and that's the last thing I want to do. . . . It's easy to point the finger at circumstances, at other people, and my dad this or that. I don't want to do that. I want to continue to mature and take responsibility."
The Board noted Maela's disciplinary problems upon being incarcerated, but also acknowledged Maela had been discipline free since 1996. The Board, however, asked Maela why it took him so long to leave the Mexican Mafia gang. Maela admitted that he was not strong enough to leave the gang until 2000. Maela explained he found his strength by finally "seeing [his] surroundings" and "the madness" of the gang as well as reading the Bible.
The Board reviewed Maela's parole plans, noting letters indicating Maela could live in Amity's aftercare residence, with his wife, or with either of two of his sisters. The Board also acknowledged that Maela had three job offers if he was paroled: one with Amity as an intern, a second as a mason with Rock Your World Stone, Inc., and a third as a painter for Custom Design Painting. While finding Maela had a good parole plan, the Board expressed concern he had not yet contacted any groups for his relapse prevention program although he had amassed good materials regarding available resources.
The Board also recognized Maela's efforts since his last suitability hearing on August 6, 2008. It marked six general support letters for Maela in the record. The Board further praised Maela for attending a parenting class, facilitating Amity's father-son workshop, and participating in an eight-week anger management course as well as additional three-day training in anger management and dispute resolution. In addition, the Board acknowledged Maela received a certificate of completion from Amity for his participation in mentoring at South Lodge and two certificates from prison fellowship for Conversion in Calling and the Kingdom of God.
The Board noted Maela's previous participation in AA and NA as well as his work with Amity beginning in 2009. However, the Board was concerned about the gap in self-help programming, specifically involving substance abuse, from the time he received his certificates of participation for AA and NA in 2005 and his work with Amity in 2009. The Board asked Maela if he had any book reports to fill this gap in self-help programming and expressed disappointment when Maela had none to provide.
In closing, Maela's attorney stressed Maela takes responsibility for his actions and shows regret, remorse, and guilt. He also highlighted Maela's thorough parole plans and his growth while in prison that substantially decreases his risk for repetitive offenses. Maela's attorney finally reminded the Board of Maela's various accomplishments and emphasized that parole would not only benefit Maela, but the community as well.
At the end of the hearing, Maela answered the Board's final question regarding why he felt he was suitable for parole:
"Inmate Maela: This is probably the most difficult question that I could actually reply to. It's something that I wrestle with a lot because in my mind I know that there's no question that I committed a crime, that I hurt somebody, and that there was consequences to those actions.
"[Board]: You killed somebody.
"Inmate Maela: I took somebody's life.
"[Board]: Yes.
"Inmate Maela: I took somebody's life and there's consequences. I understand that. In my mind, I'm willing to take responsibility regardless of what decision you men make today. I understand that. I understand that there was consequences to my actions and I just want to continue to work on myself as a human being so that I could
help not just myself but people in my surroundings and people that I care about so that they can learn how to respond differently to situations and help guide them. Hopefully, I can be a better source of influence than the ones that I had around me being the gang. I can't help but to feel somewhat as a scumbag to sit here in front of you men and say that I deserve an opportunity that I didn't give somebody else and I don't want nobody to hurt them either. I don't want nobody who takes a life to end up getting paroled. The only thing that I can say is that I'm working to not be the same person that I was. That's the only thing I can say."
The Board's Decision
Based on the totality of the record, the Board denied Maela parole and concluded "there is some evidence that Mr. Maela is a current risk of dangerousness to the public and it also makes him an unreasonable risk to the public's safety in a free community." The Board based its decision on three suitability considerations: (1) the commitment offense, which it found Maela committed in an especially cruel manner; (2) Maela's previous history of violence, including his "significant violence during his incarceration until about 199[6]"; and (3) Maela's unstable social history, primarily his abuse of alcohol and drugs as well as his gang involvement.
While the Board acknowledged Maela was "moving forward" and "doing a good job," it found Maela minimized his life offense a couple times. Specifically, the Board took exception to Maela stating he hurt someone when he actually killed Torres. The Board also expressed concern that Maela's "alcohol and substance abuse training has been somewhat sporadic . . . ." In regard to the alcohol and substance abuse training, the Board appeared especially concerned Maela was "not quite at taking care of [himself] to the significance that we felt confident in signing off on giving [him] a date, yet." In addition, the Board was disappointed Maela did not provide any book reports to cover the gap in programming caused by the lack of available substance abuse programming at Richard J. Donovan Correctional Facility (Donovan), where Maela was confined. Finally, the Board stated it would like to see a more developed relapse prevention plan.
The Habeas Proceeding
Maela petitioned the San Diego County Superior Court for a writ of habeas corpus to overturn the Board's denial, but the court denied the petition, finding "some evidence" supported the Board's decision. Maela then petitioned this court for a writ of habeas corpus challenging the Board's decision as unsupported by some evidence that his parole would unreasonably endanger the public and arguing the provision in Marsy's Law increasing the subsequent hearing period violates ex post facto principles. We issued an order to show cause why the requested relief should not be granted.
The Attorney General filed a return, denying the Board's decision was not supported by "some evidence" in the record due to the combined factors of the nature of Maela's commitment offense, unstable social history (including drug and alcohol abuse), institutional misconduct, and sporadic substance abuse training showed his release from prison would pose an unreasonable risk of danger to society. The Attorney General also argued the application of Marsy's Law does not violate ex post facto principles. Maela filed a traverse, asserting the Board, in its denial of parole, failed to set forth some reliable evidence showing his release from prison currently poses an unreasonable risk of danger to public safety.
DISCUSSION
I
SOME EVIDENCE SUPPORTS THE BOARD'S DENIAL
A. The Parole Suitability Framework
As this court recognized in In Re Vasquez (2009) 170 Cal.App.4th 370 (Vasquez), "[t]he granting of parole is an essential part of our criminal justice system and is intended to assist those convicted of crime to integrate into society as constructive individuals as soon as possible and alleviate the cost of maintaining them in custodial facilities. [Citations.] Release on parole is said to be the rule, rather than the exception [citations] and the Board is required to set a release date unless it determines that 'the gravity of the current convicted offense . . . is such that consideration of the public safety requires a more lengthy period of incarceration . . . .' [Citation.]" (Id. at pp. 379-380.)
The decision whether to grant parole is an inherently subjective determination (In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz)) that is guided by a number of factors, some objective, identified in section 3041 and the Board's regulations. (Cal. Code Regs., tit. 15, §§ 2281, 2402.) In making the suitability determination, the Board must consider "[a]ll relevant, reliable information," such as the nature of the commitment offense including behavior before, during, and after the crime; the prisoner's social history; mental state; criminal record; attitude towards the crime; and parole plans. (Cal. Code Regs., tit. 15, § 2402, subd. (b).) The circumstances that tend to show unsuitability for parole include that the inmate: (1) committed the offense in a particularly heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) has previously 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. (Cal. Code Regs., tit. 15, § 2402, subd. (c).) A factor that alone might not establish unsuitability for parole may still contribute to a finding of unsuitability. (Cal. Code Regs., tit. 15, § 2402, subd. (b).)
Factors that support the finding the crime was committed "in an especially heinous, atrocious or cruel manner" (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1)), include the following: (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.
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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 life, especially if the stress had built over a long period of time; (5) committed the criminal offense 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 indicate an enhanced ability to function within the law upon release. (Cal. Code Regs., tit. 15, § 2402, subd. (d).)
These criteria are "general guidelines," illustrative rather than exclusive, and " 'the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the [Board].' " (Rosenkrantz, supra, 29 Cal.4th at p. 654; Cal. Code Regs., tit. 15, § 2402, subds. (c), (d).) Thus, the endeavor is to try "to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts." (Rosenkrantz, supra, at p. 655.) Because parole unsuitability factors need only be found by a preponderance of the evidence, the [Board] is free to consider facts apart from those found true by a jury or judge beyond a reasonable doubt. (Id. at p. 679.) Nonetheless, the Board's decision must comport with due process. (Id. at p. 660.)
B. Judicial Review
In Rosenkrantz, our Supreme Court addressed the standard for a court to apply when reviewing a parole decision by the executive branch. The court held that "the judicial branch is authorized to review the factual basis of a decision of the Board denying parole . . . to ensure that the decision comports with the requirements of due process of law, but that in conducting such a review, the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based on the factors specified by statute and regulation." (Rosenkrantz, supra, 29 Cal.4th at p. 658.)
In In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence), our Supreme Court reaffirmed its analysis in Rosenkrantz, supra, 29 Cal.4th 616, that the decision of parole suitability is subject to the "some evidence" standard of review. (Lawrence, supra, at
p. 1205.) However, in doing so, it recognized that Rosenkrantz's characterization of that standard as extremely deferential and requiring "[o]nly a modicum of evidence" (Rosenkrantz, supra, at p. 667), had generated confusion and disagreement among the lower courts "regarding the precise contours of the 'some evidence' standard." (Lawrence, supra, at p. 1206.) The court in Lawrence, recognizing that the legislative scheme contemplates "an assessment of an inmate's current dangerousness" (id. at p. 1205), clarified that the analysis required when reviewing a decision relating to a prisoner's current suitability for parole is "whether some evidence supports the decision of the Board 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.)
As to this standard, the court in Lawrence further explained that although it was "unquestionably deferential, [it was] certainly . . . not toothless, and 'due consideration' of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision -- the determination of current dangerousness." (Lawrence, supra, 44 Cal.4th at p. 1210, italics added.) Because consideration of public safety is the primary statutory issue to be determined in deciding whether an inmate should be granted parole (§ 3041, subd. (b); Lawrence, supra, at p. 1205), "[t]his inquiry is, by necessity and by statutory mandate, an individualized one," and requires a court to consider the circumstances surrounding the commitment offense, along with the other facts in the record, to determine whether an inmate poses a current danger to public safety. (In re Shaputis (2008) 44 Cal.4th 1241, 1254-1255 (Shaputis).)
Regarding such consideration, "although the Board . . . 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 postincarceration 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." (Lawrence, supra, 44 Cal.4th at p. 1214.)
In this case, because the court below denied Maela's petition for a writ of habeas corpus, the current petition for habeas relief is an original proceeding that requires we independently review the record to determine whether there is some evidence to support the Board's decision in denying Maela's parole. (In re Scott (2004) 119 Cal.App.4th 871, 884.) In other words, "we independently review the record [citation] to determine 'whether the identified facts [by the Board] are probative to the central issue of current dangerousness when considered in light of the full record before [the Board].' [Citation.]" (Vasquez, supra, 170 Cal.App.4th at pp. 382-383.)
C. Analysis
As we noted above, the Board's decision in denying a grant of parole was premised on three factors: the circumstances of the commitment offense, Maela's history of violence, and Maela's unstable social history, including his drug and alcohol abuse.
1. Circumstances of the Commitment Offense
The Board found Maela committed the offense in an "especially cruel manner." Specifically, the Board appeared most concerned that Maela, after seeing several people fighting his friend, got out of the car with a handgun and started shooting as individuals fled, emptying his gun.
The commitment offense predates incarceration and is immutable. In Lawrence, supra, 44 Cal.4th 1181, the court explained that parole for murderers is the rule, not the exception, and therefore, the immutable aggravated circumstances of an offense alone rarely will provide a valid basis to deny parole after an inmate has served the suggested base term and when there is strong evidence of rehabilitation and no other evidence of current dangerousness. (Id. at pp. 1211, 1218-1219.) Under such circumstances, the aggravated nature of the offense realistically loses probative value to show current dangerousness unless there is other, more recent evidence reasonably indicating that the offense still has some tendency to show that the inmate poses a risk of harm to others. (Id. at pp. 1214, 1219.)
Here, the Board was bothered by the "cruel manner" in which Maela committed the life offense, but did not articulate how the life offense indicates Maela will be a current danger to the public if paroled. We agree with the Board that the circumstances of the life offense are despicable and fully justify Maela's conviction and sentence for second degree murder. These circumstances alone, however, are not "some evidence" supporting the Board's denial of parole. The inquiry into current dangerousness "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." (Lawrence, supra, 44 Cal.4th at p. 1221.) We find nothing in the record showing the Board's reasoning establishing a rational nexus between the commitment offense and the determination of current dangerousness. (Id. at p. 1210.) Further, we determine the circumstances of the life crime, committed some 22 years prior to the 2009 suitability hearing, without additional evidence, have little probative value regarding Maela's dangerousness to society if released.
2. History of Violence
The Board noted Maela had a previous criminal record that included burglary, shooting at a residence, loitering, disorderly conduct, spousal abuse allegations, and an escape attempt. Of this list of crimes, only shooting at a residence and the spousal abuse allegations involve violence. Like the commitment offense, these two instances of violence are immutable and not necessarily probative of Maela's current dangerousness to the public. (See Lawrence, supra, 44 Cal.4th at p. 1221.)
While Maela's pre-incarceration violence might be immutable, Maela engaged in considerable violence during the first nine years he was incarcerated. He was disciplined for possession of weapons, stabbing another inmate, resisting prison staff, fighting (multiple times), and participating in a race riot. Such misconduct evidences Maela's willingness to engage in serious violations even after he was sentenced for his commitment offense. Although Maela has not been disciplined or engaged in any violence since August 20, 1996, he still holds a high classification score of 113, requiring his placement in the highest level security facility. (See Cal. Code Regs., tit. 15, § 3375.1, subd. (a)(4).) Even if we conclude Maela's 13 years of violence free conduct minimizes the impact of his history of violence, his misconduct, nevertheless, continues to have some probative value as to Maela's recidivist tendencies. (Cf. Lawrence, supra, 44 Cal.4th at p. 1229.) While we are not convinced this factor alone establishes Maela's unsuitability for parole, it does contribute to the Board's finding of unsuitability. (See Cal. Code Regs., tit. 15, § 2402, subd. (b).)
3. Unstable Social History
The Board emphasized two factors primarily contributing to Maela's unstable social history. First, Maela began abusing alcohol and drugs around age 12. Second, he became a gang member at age 12, and continued as a prison gang member associate until 2000 when he finally debriefed.
Under the regulations, an "unstable social history" is an unsuitability factor where it involves "unstable or tumultuous relationships with others." (Cal. Code Regs., tit. 15, § 2402, subd. (c)(3).) Maela admits to having assaulted his wife. However, he remains married and his wife wrote a letter in support of Maela indicating he could live with her if the Board granted him parole. But Maela expressed concern in moving in with his wife if granted parole. Instead of living with his wife immediately upon release, he preferred to live elsewhere because "it would probably be smarter to re-court each other instead of just run on what we used to have. . . . I don't think it would be good to try to just pick up where we left off . . . ." Put differently, Maela appeared to be concerned about his past problems with his wife and interacting with her upon release. The Board recognized Maela's hesitation to live with his wife and after commending his strategy as a "smart move," suggested Maela attend a domestic violence course or conduct research regarding domestic violence and its causes.
We agree with the Board that Maela's proposal to live at the Amity facility upon release and re-establish his relationship with his wife prior to moving in with her is a good idea. However, Maela's plan stems from his unstable social history, specifically his relationship with and abuse of his wife. As such, we are satisfied that some evidence, even if limited, supports the Board's finding Maela's unstable social history makes Maela a current threat to public safety, especially his wife's, if released.
The Board also was concerned about Maela's sporadic substance abuse training. A history of substance abuse is not separately listed as an unsuitability factor. Nevertheless, if an inmate's past substance abuse reveals that when under the influence, he became belligerent or aggressive or tended to engage in conflicts, confrontations, or acts of force or violence, all of which would directly relate to a history of social instability, then prior substance abuse could be relevant in determining current dangerousness.
Here, Maela admits he was under the influence of PCP at the time he committed the life crime. He also admits that he began abusing alcohol and drugs at a young age. He attended NA and AA meetings and received certificates of participation in 2005. The Board noted, however, Maela's participation in substance abuse programs had been sporadic over the past several years, only starting the Amity program at the beginning of 2009. Further, the Board raised the issue that Maela was a mentor in Amity, but not a participant. Otherwise stated, the Board expressed concern regarding what Maela was doing to take care of himself in regard to his substance abuse problem.
Ostensibly, the Board's concern about Maela's sporadic substance abuse training appears misplaced. Although Maela is a mentor in Amity, at his hearing, he discussed his participation in Amity in the morning and his mentoring at night. Thus, there is at least some evidence in the record Maela is addressing his substance abuse programming through Amity.
However, his involvement with Amity only began in 2009, and there appear to be gaps in Maela's substance abuse programming from 2005 to 2009. Maela argues any gaps were a function of the unavailability of programming when he was transferred to Donovan, and there appears to be support in the record for this argument. Further, Maela contends he actually was involved with NA and AA until 2007. Also, Maela has never had any substance abuse problems since his incarceration for his life offense.
While there appears to be evidence that Maela has remained drug free and is currently participating in substance abuse programming, we cannot completely disregard the Board's concern about Maela's sporadic substance abuse programming because of the role drugs and alcohol have played in Maela's life. Most importantly, Maela was under the influence of PCP and trying to buy PCP when he committed his life offense.
In addition, the Board at Maela's 2008 suitability hearing suggested he make up for the lack of programming opportunities by conducting his own research and preparing book reports. The Board at Maela's 2009 suitability hearing focused on this recommendation, especially when Maela failed to provide any book reports. In response, Maela argues the Board in 2008 was not suggesting that Maela prepare book reports to make up for lost programming time, but could do so in lieu of programming. Thus, Maela asserts there was no need to prepare book reports because of his involvement with Amity. We are not persuaded by Maela's argument.
While we agree with Maela that the Board in 2008 was not requiring him to prepare a certain number of book reports to make up for his lost opportunity to participate in a substance abuse program, we conclude the Board was recommending Maela prepare book reports, in the future, if he was not able to participate in substance abuse programming. On July 7, 2008, the Board denied Maela parole and made its suggestion about book reports. Maela admits he did not begin his participation with Amity until January 2009. Thus, for a period of almost six months, Maela neither attended substance abuse programming nor prepared a book report regarding substance abuse. This is not an insignificant amount of time, and the Board, in 2009, reasonably could consider the lack of any book reports underscores Maela's sporadic substance abuse training. In addition, the Board noted Maela's failure to abide by the recommendations following his 2008 suitability hearing raises doubts whether he will be able to do what is required upon his release.
Although we see the merit of the Board's focus on Maela's sporadic substance abuse programming, we are less concerned about Maela's past gang affiliation as an indicator of his current dangerous to society if released. The record is somewhat undeveloped regarding the impact of Maela's gang affiliation. Further, to the extent his gang affiliation contributed to Maela's disciplinary problems after incarceration, we have already considered the Board's reliance on these problems in finding Maela's history of violence shows he would be a danger to society if released. As such, while we are troubled by Maela's past gang involvement and the length of time it took him to leave the Mexican Mafia after incarcerated, we conclude Maela's past gang involvement, without additional evidence or explanation, does not indicate he would be a danger if released.
4. Additional Factors
While not enumerated in the relevant caselaw as unsuitability factors, the Board also based its denial on Maela's minimization of the commitment offense and his lack of a more developed relapse plan.
a. Minimization/Lack of Insight
A prisoner's insight into his offenses and his understanding of the nature, magnitude and causes of his crime are important parole suitability factors. (In re Rodriguez (2011) 193 Cal.App.4th 85, 97.) Where a prisoner lacks such insight, the Board is justified under the "some evidence" standard in considering the prisoner's need for further counseling as a factor supporting parole denial. (In re Van Houten (2004) 116 Cal.App.4th 339, 355.)
Here, the Board found "Maela lacks an understanding of the magnitude of the commitment offense." Indeed, the Attorney General argues "Maela minimized the magnitude of his offense several times during the hearing, requiring the Board to correct his statements." While we did not find Maela minimized "several times" as the Attorney General urges, we did discover two instances during the 2009 hearing in which the Board reasonably could have interpreted Maela's comments as minimizing his conduct in committing the life offense.
First, Maela stated the victim left a void in his family's life. The Board corrected Maela by pointing out it was he who left the void by killing the victim. Maela immediately agreed with the Board and corrected his mistake, admitted that he left the void by killing the victim, and exhibited remorse for the crime.
Second, at the end of the hearing, Maela said he had "hurt" someone. Again, the Board corrected Maela by stating he had killed someone. Maela agreed and acknowledged there were consequences from his actions.
While an objective reader certainly could determine Maela did not minimize his role or conduct, but merely misspoke, the Board has the benefit of being present at the hearing and interpreting Maela's tone of voice, attitude, and demeanor. We cannot do so on appeal. Further, in applying the some evidence standard, we are precluded from independently resolving conflicts in the evidence, determining the weight to be given the evidence, or deciding the manner in which the specified factors relevant to parole suitability are to be considered and balanced, because these are matters exclusively within the discretion of the Board. (In re Scott (2004) 119 Cal.App.4th 871, 899.) Accordingly, while we may believe Maela merely misspoke and displayed the proper amount of insight and did not minimize his role or conduct in committing the life offense, we cannot disagree with certainty with the Board's belief Maela exhibited some lack of understanding of the magnitude of the commitment offense. This is especially true where Maela's life offense is second degree murder, and both instances of his minimization involve Maela misstating the impact of his actions, i.e., the death of Torres.
b. Undeveloped Relapse Prevention Plan
In denying parole, the Board also noted Maela's relapse prevention plan was somewhat undeveloped. For example, Maela had not yet made contact with any groups to prepare a relapse prevention plan in case he was released. Instead, Maela printed material from the internet about different groups that could aid him if he was paroled. While the undeveloped relapse prevention plan by itself does not warrant caution, the undeveloped plan coupled with Maela's sporadic substance abuse training and the fact Maela was under the influence of PCP while he committed the life offense raises a concern about Maela's danger to society upon being released.
D. Conclusion
Were it our responsibility to evaluate the various factors appropriate to a determination whether Maela constitutes a current threat to public safety, we might very well conclude that evidence in the record tending to establish his suitability for parole far outweighs any evidence demonstrating unsuitability for parole. Yet, this is not our role. (See Shaputis, supra, 44 Cal.4th at pp. 1260-1261.) Instead, we have reviewed the record, in a light most favorable to the Board's decision (In re Morrall (2002) 102 Cal.App.4th 280, 301) for "some evidence" to support the Board's denial of parole. Based upon the totality of the circumstances, we are satisfied the Board's decision meets this extremely deferential standard, albeit the evidence appears modest. Maela was under the influence of PCP at the time he committed his life offense. He also admits to having used alcohol and drugs since the age of 12. His substance abuse training has been sporadic over the last few years, and he only began his involvement with Amity in 2009. He had previously assaulted his wife and was hesitant to move in with her if he was released, choosing instead to live in the Amity residence. A couple of times during the suitability hearing, Maela made statements that could be construed as evidencing his lack of understanding of the magnitude of his life crime. In addition, he failed to contact any group to set up a relapse prevention program. In summary, this evidence can be predictive of Maela's current dangerousness despite the many positive factors that demonstrate his suitability for parole. (See Lawrence, supra, 44 Cal.4th at p. 1226 ["[o]ur deferential standard of review requires us to credit the [Board's] findings if they are supported by a modicum of evidence"].)
II
THE APPLICATION OF MARSY'S LAW TO MAELA
DOES NOT VIOLATE EX POST FACTO PRINCIPLES
The Board concluded a three-year deferral before Maela would be again considered for parole, as permitted under section 3041.5, subdivision (b)(3), was appropriate. Maela asserts the amendments to section 3041.5, subdivision (b), which implement aspects of Marsy's Law to permit the three-year deferral, cannot be applied to him without violating ex post facto principles.
At the outset, we note this court is split on this issue, but our Supreme Court recently granted review of two cases to resolve the disagreement. (See In re Vicks (2011) 195 Cal.App.4th 475, review granted July 20, 2011, S194129 [finding ex post facto violation]; In re Russo (2011) 194 Cal.App.4th 144, review granted July 20, 2011, S193197 [finding no violation].) Without the benefit of the high court's guidance, we think the better reasoned result is Marsy's Law does not violate ex post facto principles as it applies to the Board setting Maela's next suitability hearing in three years. (See In re Aragon (2011) 196 Cal.App.4th 483, 500-504, review granted Sept. 14, 2011, S194673.)
The United States Constitution provides that "[n]o State shall . . . pass any . . . ex post facto Law." (U.S. Const., art. I, § 10.) A law violates the ex post facto clause of the United States Constitution if it: (1) punishes as criminal an act that was not criminal when it was committed; (2) makes a crime's punishment greater than when the crime was committed; or (3) deprives a person of a defense available at the time the crime was committed. (Collins v. Youngblood (1990) 497 U.S. 37, 52.) The ex post facto clause " 'is aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts.' " (Himes v. Thompson (9th Cir. 2003) 336 F.3d 848, 854 (Himes), quoting Souch v. Schaivo (9th Cir. 2002) 289 F.3d 616, 620; see also California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 504 (Morales). The ex post facto clause is also violated if: (1) state regulations have been applied retroactively to a defendant; and (2) the new regulations have created a "sufficient risk" of increasing the punishment attached to the defendant's crimes. (Himes, supra, at p. 854.)
However, not every law that disadvantages a defendant is a prohibited ex post facto law. The retroactive application of a change in state parole procedures violates ex post facto principles only if there exists a "significant risk" that such application will increase the punishment for the crime. (See Garner v. Jones (2000) 529 U.S. 244, 255 (Garner).)
Before Marsy's Law was enacted, the length of a parole hearing deferral was determined by section 3041.5, subdivision (b)(2). That section provided:
"The board shall hear each case annually . . . , except the board may schedule the next hearing no later than the following: [¶] (A) Two years after any hearing at which parole is denied if the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following year and states the bases for the finding. [¶] (B) Up to five years after any hearing at which parole is denied if the prisoner has been convicted of murder, and the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding in writing."
Marsy's Law substantially changed the law governing deferral periods. The most significant changes are as follows: the minimum deferral period is increased from one year to three years, the maximum deferral period is increased from five years to 15 years, and the default deferral period is changed from one year to 15 years. (§ 3041.5, subd. (b)(3).) Additionally, before Marsy's Law was enacted, the deferral period was one year unless the Board found it was unreasonable to expect the prisoner would become suitable for parole within one year. (§ 3041.5, subd. (b)(2).) After Marsy's Law, the deferral period is 15 years unless the Board finds by clear and convincing evidence that the prisoner will be suitable for parole in 10 years, in which case the deferral period is 10 years. (§ 3041.5, subd. (b)(3)(A-B).) If the Board finds by clear and convincing evidence that the prisoner will be suitable for parole in seven years, the Board has discretion to set a three-, five-, or seven-year deferral period. (§ 3041.5, subd. (b)(3)(B), (C).)
However, Marsy's Law also authorizes the Board to advance a hearing date on its own accord or at the request of a prisoner. "The board may in its discretion . . . advance a hearing . . . to an earlier date, when a change in circumstances or new information establishes a reasonable likelihood that consideration of the public and victim's safety does not require the additional period of incarceration of the prisoner . . . ." (§ 3041.5, subd. (b)(4).) Also, a prisoner may request an advance hearing by submitting a written request that "set[s] forth the change in circumstances or new information that establishes a reasonable likelihood that consideration of the public safety does not require the additional period of incarceration." (§ 3041.5, subd. (d)(1).) A prisoner is limited to one such request every three years. (§ 3041.5, subd. (d)(3).) Moreover, although the minimum deferral period is three years, there is no minimum period the Board must wait before it holds an advance hearing. (§ 3041.5, subd. (b)(4).)
In analyzing whether these changes violate ex post facto principles, we are guided by United States Supreme Court precedent that has addressed similar changes in laws governing parole.
In Morales, supra, 514 U.S. at pages 502-503, the defendant was sentenced to 15 years to life for a murder committed while on parole from a prior murder sentence. As we noted above, section 3041.5, subdivision (b)(2) at that time provided for annual subsequent parole reviews. In 1981, the law was amended to allow the Board to delay a subsequent hearing for up to three years if the prisoner had been convicted of more than one offense involving the taking of a life and the Board found it unreasonable to expect that parole would be granted in intervening years. (Id. at pp. 501-503.) The initial parole hearing for Morales occurred in 1989. (Id. at p. 502.) The Board found Morales unsuitable for parole and that it was not reasonable to expect that he would be found suitable for parole in 1990 or 1991. (Id. at p. 503.) The Board set the next parole hearing for 1992. (Ibid.) Morales filed a federal habeas corpus petition, arguing that the 1981 amendment, as applied to him, constituted an ex post facto law. (Id. at p. 504.)
The high court in Morales rejected that contention, concluding that the 1981 amendment "creates only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes, and such conjectural effects are insufficient under any threshold we might establish under the Ex Post Facto Clause." (Morales, supra, 514 U.S. at p. 509.) In doing so, the court noted (1) the amendment did not affect the date of the initial parole suitability hearing; (2) the Board retained discretion to tailor the frequency of parole hearings to the circumstances of individual prisoners; (3) the Board was required to make particular findings justifying the postponement of a subsequent hearing more than a year in the future; and (4) an expedited hearing could occur if a prisoner experienced such a change in circumstance as to make suitability for parole likely. (Id. at pp. 510-513.)
Similar protections are also present in the current version of section 3041.5. While Morales did not involve a change to the minimum deferral period, the default deferral period, or the burden to impose a deferral period other than the default period, the procedural safeguards in subdivisions (b)(4) and (d)(1) allowing an advance hearing by the Board would remove any possibility of harm to prisoners because they would not be required to wait a minimum of three years for a hearing. Those subdivisions eliminate any ex post facto implications because they constitute qualifying provisions that minimize or eliminate the significant risk of prolonging a prisoner's incarceration.
The Supreme Court also addressed retroactive changes in laws governing parole in Garner, supra, 529 U.S. 244. When the defendant committed his offense and was sentenced, the rules of Georgia's parole board required reconsideration of parole to take place every three years. (Id. at p. 247.) In 1985, the board amended its rules to provide that reconsideration for inmates serving life sentences would take place at least every eight years. (Ibid.) Although Georgia's amended parole rules permitted extension of parole reconsideration by five years (not just the two years in Morales, supra, 514 U.S. 499), applied to all prisoners serving life sentences (not just to multiple murderers), and afforded fewer procedural safeguards than in Morales, the court found that these differences were "not dispositive." (Garner, supra, at p. 251.) In finding that Georgia's amended parole rules did not violate ex post facto principles, the court noted under Georgia's amended statute that the parole board maintained the discretion to deny parole for a range of years and permitted an expedited review if a change of circumstances or new information indicated that an earlier review was warranted. (Id. at p. 254.)
Again, similar protections are present in the current version on section 3041.5 that eliminate any ex post facto implications.
Our high court has also addressed the constitutionality of retroactive changes to periods for parole review. In In re Jackson (1985) 39 Cal.3d 464, the court examined an amendment to an earlier version of section 3041.5 that increased the maximum parole denial period from one year to two years. The court concluded that because the amendment only changed the frequency of hearings and did not alter the criteria for determining parole suitability, it was a "procedural change outside the purview of the ex post facto clause." (Id. at p. 472, fn. omitted.)
Here too the amendments to section 3041.5 are a procedural change that impacts only the frequency of parole hearings. Maela retains the right to a hearing with numerous procedural protections, and the criteria for determining parole suitability remain unchanged.
Recently, the Ninth Circuit addressed an ex post facto challenge to Marsy's Law overturning a district court decision granting a preliminary injunction to plaintiffs in a class action seeking to prevent the board from enforcing the amended deferral periods established by section 3041.5. (Gilman v. Schwarzenegger (9th Cir. 2011) 638 F.3d 1101 (Gilman).)The court found it unlikely that plaintiffs would succeed on the merits of their underlying challenge premised on the ex post facto clause. In doing so, the court initially compared and contrasted Marsy's Law with Morales, supra, 514 U.S. 499 and Garner, supra, 529 U.S. 244:
"Here, as in Morales and Garner, Proposition 9 did not increase the statutory punishment for any particular offense, did not change the date of inmates' initial parole hearings, and did not change the standard by which the Board determined whether inmates were suitable for parole. However, the changes to the frequency of parole hearings here are more extensive than the change in either Morales or Garner. First, Proposition 9 increased the maximum deferral period from five years to fifteen years. This change is similar to the change in Morales (i.e., tripled from one year to three years) and the
change in Garner (i.e., from three years to eight years). Second, Proposition 9 increased the minimum deferral period from one year to three years. Third, Proposition 9 changed the default deferral period from one year to fifteen years. Fourth, Proposition 9 altered the burden to impose a deferral period other than the default period. . . . Neither Morales nor Garner involved a change to the minimum deferral period, the default deferral period, or the burden to impose a deferral period other than the default period." (Gilman, supra, 638 F.3d at pp. 1107-1108.)
The Ninth Circuit found these distinctions insignificant, however, due to the availability of advance parole hearings at the Board's discretion (sua sponte or upon the request of a prisoner, the denial of which is subject to judicial review), reasoning that, "as in Morales, an advance hearing by the Board 'would remove any possibility of harm' to prisoners because they would not be required to wait a minimum of three years for a hearing." (Gilman, supra, 638 F.3d at p. 1109, quoting Morales, 514 U.S. at p. 513.) The court concluded that the plaintiffs had failed to demonstrate a significant risk that their incarceration would be prolonged by application of Marsy's Law, and thus found that plaintiffs had not established a likelihood of success on the merits of their ex post facto claim. (Gilman, supra, at pp. 1110-1111.)
Moreover, Garner, supra, 529 U.S. 244, supports the conclusion that the Board's setting a parole date three years from the July 2009 hearing did not constitute an ex post facto violation. At the time of Maela's commitment offense, California law provided inmates like Maela with an annual parole hearing, unless the Board found it not reasonable to expect that parole would be granted in the one-year period, in which case, the Board could order a two-year deferral period. (Former § 3041.5, subd. (b)(2)(A), Stats. 1990, ch. 1053, § 1.) In the wake of Marsy's Law, Maela was subjected to a three- year parole hearing deferral period, with the possibility that an earlier hearing could be held upon a change in circumstances or the discovery of new information establishing a reasonable likelihood that he would be found suitable for parole. (See § 3041.5, subds. (b)(4), (d)(3).) In Garner, the Supreme Court concluded that the application of an administrative regulation that increased an inmate's parole hearing deferral period from three years to eight years (a five-year increase in the deferral period) did not constitute an ex post facto violation. (Garner, supra, at pp. 246-248.) Thus, Garner strongly supports the conclusion that the Board's setting Maela's next parole hearing three years from the July 2009 hearing did not constitute an ex post facto violation.
Maela argues Garner does not apply here because the Board wanted to set a hearing date in a year, but felt it could not do so under Marsy's Law. The Board's desire to set a sooner suitability date does not somehow render Marsy's Law unconstitutional. Indeed, as we discussed above, the Board has the discretion to set an earlier date if supported by a change in circumstances or new information. (§ 3041.5, subd. (b)(4).) Also, as noted above, if Maela felt circumstances supported an earlier date, he could have requested an advanced date. (See § 3041.5, subd. (d)(1).) There is no evidence in the record that Maela made such a request.
In summary, the Board's setting Maela's next suitable hearing date three years after the July 2009 hearing under Marsy's Law does not violate ex post facto principles.
DISPOSITION
The petition is denied.
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HUFFMAN, J.
WE CONCUR:
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McCONNELL, P. J.
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IRION, J.