From Casetext: Smarter Legal Research

In re Mendoza

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Jan 26, 2012
B233813 (Cal. Ct. App. Jan. 26, 2012)

Opinion

B233813

01-26-2012

In re MARTIN MENDOZA, on Habeas Corpus.

Martin Mendoza, in pro. per.; and Nancy L. Tetrault, under appointment by the Court of Appeal, for Petitioner. Kamala D. Harris, Attorney General, Jennifer Neill, Acting Assistant Attorney General, Phillip Lindsay and Kathleen R. Walton, Deputy Attorneys General, for Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. Nos. PA002226, BH007635)

ORIGINAL PROCEEDING; petition for writ of habeas corpus. Patricia M. Schnegg, Judge. Petition granted.

Martin Mendoza, in pro. per.; and Nancy L. Tetrault, under appointment by the Court of Appeal, for Petitioner.

Kamala D. Harris, Attorney General, Jennifer Neill, Acting Assistant Attorney General, Phillip Lindsay and Kathleen R. Walton, Deputy Attorneys General, for Respondent.

Petitioner Martin Mendoza is serving a sentence of 25 years to life in prison following his November 9, 1990 conviction and sentencing for first degree murder with a firearm (Pen. Code, §§ 187, subd. (a), 12022, subd. (a)), and four counts of attempted murder (Pen Code, §§ 664, 187, subd. (a)). On September 24, 2010, a two-commissioner panel of the Board of Parole Hearings (the Board) found Mendoza currently unsuitable for parole.

All further statutory references are to the Penal Code unless otherwise noted.

On January 21, 2011, Mendoza filed a petition for habeas corpus in the Superior Court, challenging the Board's decision. The petition was denied on March 18, 2011.

On June 20, 2011, Mendoza filed a pro. per. verified petition and supplemental petition for habeas corpus in this court. His principal contention in this court is that the Board's decision lacks the support of "some evidence" that he continues to pose a current threat to public safety, and therefore violates his right to due process. He also contends that the Board's application of the 2008 amendment to section 3041.5, subdivision (b)(3), postponing his next parole hearing for three years, constitutes an ex post facto violation.

On October 5, 2011, we issued an order to show cause with respect to whether the Board's decision is supported by "some evidence" that Mendoza continues to pose a current threat to public safety, and we appointed counsel. The People have filed a return to the order to show cause, and Mendoza has filed a traverse.

We deny Mendoza's request for judicial notice of the decision in In re Vicks (2011) 195 Cal.App.4th 475, as unnecessary. (Wegner et al., Cal. Practice Guide: Civil Trials & Evidence (The Rutter Group 2010) ¶ 8:843, p. 8C-108 ["It is not necessary to ask a court to judicially notice matters of . . . California law"].)

We conclude that the Board lacked "some evidence" that Mendoza's release on parole would constitute an unreasonable risk of danger to the community under either state or federal constitutional standards. We will issue a writ vacating the Board's denial of parole, and order the Board to conduct a new parole-suitability hearing in accordance with due process of law and consistent with the decision of this court.

Facts

1. The Commitment Offense.

On January 1, 1990, Mendoza (then 19 years old) and other members of the Latin Times Pacoima gang heard that one of their fellow members had been robbed by someone from the Pacoima Tres gang. Mendoza and others from his gang went out— drunk—looking for members of the rival gang. Mendoza drove a stolen pickup truck, accompanied by a compatriot who was armed with a gun. Others followed in another vehicle.

Although they did not find the perpetrators of the alleged robbery, at about 1:30 a.m. they encountered a vehicle driven by a member of another gang, the Vineland Boyz. After those in the following car exchanged signals with the other car, Mendoza's passenger shot into the other car. One passenger in that car, Carmen Delacruz, was struck by bullets and died soon afterward.

2. Gang Involvement and Other Offenses.

Mendoza began his gang involvement when he was about 14, after his older brother had left his mother's home. He started drinking alcohol at about the same time. Mendoza became emotionally disconnected from his family and started associating with members of the gang—at first for the camaraderie. He dropped out of school in the eighth grade and "started taking the values and the principles of the gang members, because the gang members were pretty much my role models." Mendoza readily admitted that as he grew up the gang's younger members undoubtedly had looked up to him, just as he had emulated the older members he had seen in his community while growing up.

Mendoza's father had never acknowledged him, "because he had his family in Mexico." His mother worked as a seamstress.

Mendoza had two arrests before his life crime, neither of them gang related. A juvenile arrest in 1983 for burglary had been reduced to receiving stolen property (car tires). He was placed on probation, which eventually ended without further incident. In 1988 he had been arrested as an adult for grand theft auto, which was reduced to charges of driving without a license and insurance, and possession of burglary tools (a dent puller). He was sentenced to summary probation, which apparently had ended before his life commitment crime.

Mendoza had been shot in two separate incidents before his commitment offense. In the first incident he had been stationed at the door during a New Year's Eve party, and was shot with birdshot at close range while attempting to disarm a door-crasher who threatened to shoot into the crowded room. In the second incident Mendoza was ambushed and shot in the leg by unknown assailants after leaving a party.

3. Commitment and Disciplinary History.

Following his conviction for the commitment offenses—first degree murder with a firearm (Pen. Code, §§ 187, subd. (a), 12022, subd. (a)), and four counts of attempted murder (Pen Code, §§ 664, 187, subd. (a))—Mendoza was sentenced to 26 years to life in prison. His minimum parole eligibility date was October 1, 2006.

On appeal from the judgment (No. B056672) this court apparently stayed enforcement of the one-year firearm enhancement under Penal Code section 12022, subdivision (a)(1), resulting in a sentence of 25 years to life.

Mendoza's only gang involvement in prison was his participation in a gang-related melee in 1997, for which he received a CDC 115 violation. He had three other CDC 115 violations, in 1993 for manufacturing alcohol, in 1996 for mutual combat with a shot fired, and in 1998 for "behavior which could lead to violence."

A CDC 115 report documents misconduct that is believed to be a violation of the law or not minor in nature. (Cal. Code Regs., tit. 15, § 3312, subd. (a)(3).)

Mendoza formally separated himself from the gang in 2000. He has been involved with Alcohol Anonymous since at least 1998. He has taken an active role in 12-step studies, "and inspires others to join in." At his September 2010 Board hearing he exhibited a detailed knowledge, understanding, and personal acceptance of the program's various steps. Part of that understanding had led him to become involved with music. In prison, he had taught himself to play the guitar and bass, and is now actively involved in teaching music and mentoring choir members in the prison's Protestant church community.

Before his incarceration Mendoza had partially completed a course in welding; however, that endeavor was not available where he's been incarcerated. He had successfully completed vocational programs during his incarceration in optical eyewear, word processing, and other computer applications such as Microsoft Office, Adobe, Photo Painting, and Corel Draw. In the early 1990s he earned his GED.

Mendoza's record shows that before his most recent parole hearing, between 1993 and 2006, he had obtained certifications as a Vocational Electronics Technician, and in Word Processing Office Services, and he had completed 30 or more vocational courses, in subjects such as Vocational Eyewear/Optical Technology; Safety; Computer Fundamentals; Electronic Calculations; Office Services (business management, proofreading, punctuation, spelling, filing, beginning, intermediate and advanced typing, word processing (WordPerfect and MicroSoft Word); spreadsheet software (Lotus 1-2-3 and Excel 5.0); Desktop Publishing (1999); and database programs (Dbase 5 and Data Base Access 2.0).

Since his last parole hearing, in September 2008, Mendoza has been actively involved in self-help programming, completing a leadership workshop in February 2009; a relapse prevention course in March 2009; a self-diagnosis program in March 2009; an alcohol and drug education program in March 2009; a program on triggers, cravings, and avoiding relapse in April 2009; and an insight program in October 2009. In March 2010, he transferred from Avenal State Prison to Chuckawalla Valley Prison.

Mendoza had received CDC 128(b) certifications for courses on self-confrontation (May 2010); anger management (May 2010); and biblical principles for former gang members (July 2010). In mid-2010 he completed the first and second books of Celebrate Recovery, a faith-based self-help course founded on Gospel of Matthew, chapter five. At the time of his hearing in September 2010, he was enrolled in another Celebrate Recovery program. He was certified as of June 2010, as a regular and faithful participant in chapel services and programs, and as having volunteered numerous hours helping Spanish music ministries. As of July 2010, he was participating in a 24-week course in Men's Fraternity, A Quest For Authentic Manhood. He was a member and active participant in good standing in AA at Chuckawalla State Prison. He has taken active part in 12-step studies, "and inspires others to join in."

One of the Board panel members expressed his opinion that although Mendoza's file contains a number of "laudatory chronos," he did not believe that any since the 2008 parole hearing deserved that label.

4. Parole Plans.

Since his previous parole denial in 2008 Mendoza received 18 letters supporting his parole petition, including detailed and specific offers of spiritual, emotional, and substance-abuse support as well as financial and emotional support from family and friends, with a handful of specific offers of employment, housing, and needed transportation. The panel identified no deficiencies in Mendoza's support plans.

The Board reviewed letters verifying Mendoza's acceptance into the Victory Outreach program in Bakersfield, with a one-year commitment—Mendoza's first choice for a post-commitment placement. Mendoza also received an offer from an older sister and her husband in Tulare County, for room, board, and "any other financial support that he may need" following his stay in the Victory Outreach program. A letter from a brother in Bakersfield references a friend's offer to hire and train Mendoza as a welder, and the brother's offer to provide him with room, board, transportation to and from work and substance abuse meetings, and other financial support. A letter from the husband of a sister living in Las Vegas confirmed an offer of emotional and other support, including help finding employment and "essential materials that he may need to make his transition to society successful." A letter from Mendoza's youngest brother, in Visalia, offered financial support (including $2,000 "for clothing and any other basic needs he may have," and continuing financial support for as long as it is needed), transportation to meetings, work, and shopping, as well as emotional support. The wife of an older brother offered Mendoza housing in San Fernando, in "a happy family-centered home, home- cooked meals, places where he can just be himself." A brother offered training and a job at an auto body shop in Northridge, as well as transportation and financial assistance with housing. Another brother in Visalia offered employment, housing, and counseling. A nephew in Visalia offered housing, clothes, food, and transportation as needed. Mendoza's mother, residing with one of Mendoza's brothers in Visalia, offered financial support. An AA sponsor offered full-time employment with an identified contracting firm in Bakersfield, as well as "shelter, clothes, food if needed." And letters from other AA sponsors promised continuing communication and support, whatever Mendoza's location.

Presiding Commissioner Doyle concluded that Mendoza is "thinking right" with respect to post-commitment placements, because his first choice of placements would "assist you with transitioning, and then you've got significant back-up plans to that and a lot of opportunities in terms of what you could do. You've got job offers, huge family support. So you've got some solid parole plans. That's good." As Commissioner Doyle put it, Mendoza "has a vast network of family and friends ready to receive him, [who] will provide and surround him with all the emotional and financial support that he needs to successfully become a productive citizen." "That's great family support there. You've got certainly, you know, aside from the transitional housing, you've got a ton of [family support]."

5. Insight Into The Commitment Offense.

At the hearing, Mendoza discussed his insight into his commitment offense in some detail. He explained what had led to his gang involvement, attributing it primarily to his immaturity and inability to overcome the emotional and environmental factors that attracted him and other youths to gang involvement. He nevertheless forthrightly took responsibility for his own gang involvement, for his resulting negative influence on others as a role model, and for his commitment offense. He also described specific ways in which he has made significant (and successful) efforts to become a positive influence on others since his repudiation of gang involvement and alcohol.

Mendoza explained, for example, how his younger brother had "follow[ed] in my footsteps" until he was 19, when Mendoza "used my experience to talk to my nephews and my brother" about gang involvement. "I kept telling him, no, bro, this ain't the way to go. . . . You need to stop hanging around there. Live your life, stay in school, you know." Based on his advice, his brother did change his life, finished school, got married, and became a father focused on being a good dad. "I plan to do AA because I think it's important to speak of the downfalls of alcohol. I want to speak to the youth and try to deter them from this past."
Mendoza also noted that although his gang associations had had no positive results for him, he felt it was positive that his nephews told him they had used his experience "as a way not to go."

Mendoza described the gang mindset, driven by the loyalty, and that "the reason a lot of us join gangs is because there's something lacking in us . . . . And we find it there, and there's something wrong, you know." At the same time, however, Mendoza freely admitted that in committing his crime he drove a stolen vehicle, drunk, with an intention to retaliate against members of the rival gang. He also forthrightly explained that although it was not he who had fired shots into the other car (and he did not know what had prompted his companion to do so), "once he did start shooting, I became part of that, and I willfully went and continued to drive in a way so he could continue to shoot. So that's why I say, I accept full responsibility for what happened that night." Once he started shooting, "I was part of what went down that night." He understood that it was not so much the immediate factors such as the gang signs that had led to his actions, but rather "it was the behavior that I had continued to build in myself from the time I started hanging around the criminal mindset." The result had been that "he caused so much pain, sorrow and frustration" for his family and for people he did not know, due to "a terrible mistake in his judgment and actions without thinking."

Without minimizing or excusing his criminal behavior, Mendoza explained that by involving himself with the gang lifestyle, in which it was normal to drive around drunk with an armed passenger, "it was me putting myself in that situation, you know. This [Carmen Delacruz's killing] could happen, and it did happen. Those are the consequences, and I accept full responsibility for it, you know."

Consistent with Mendoza's own assessment, his psychological evaluation reported that he "takes responsibility for his involvement in his crime and associated criminal behavior and gang involvement," demonstrating "appropriate insight" into the reasons for his choice to be an active gang member, identifying "the role that alcohol played in his life crime," and actively addressing that factor while in custody.

In order to make amends for his lifestyle as a gang member and the death of Carmen Delacruz, Mendoza explained that he had to change "the way I looked at myself, so other people can look at me different." He had attempted to make amends directly, by writing letters of apology to Carmen Delacruz's parents, and to each of the other passengers in the vehicle in which she rode when she was shot. He had not done so earlier, he explained, because of his doubts that they would forgive him. But a panel member at his 2008 parole hearing had helped him to understand that "at this stage, it's not about whether they forgive me or not. You know, it's [about] me taking responsibility and showing respect, you know, towards Carmen, you know. That's the way I view it now, you know, is making amends to her."

In writing the letter to his victim's family, Mendoza explained how "I really had to dig deep, you know, and see the damage that I did to them." He explained how he had realized his terrible impact on them in part because of similarities they shared with his own family: His victim's name was Carmen, the same as one of his sisters; his victim had a brother named Martin, the same as him; they were a family of migrants, just as his own family was. He thinks about how Carmen was on her way home when she was killed, where her mother was waiting for her; but "she never got home." "You know, they had dreams and hopes for their children as my mother did, you know. But in here, what I do every day is . . . a testimony [to] the damage of gangs, the way they affect people, you know."

Mendoza identified steps 3 and 4 of the AA 12-step program (involving inventorying himself and making amends for the harm he has caused) as his "favorite steps." He explained that "four, you know, allows me to look into the root factors of my addiction and my destructive behavior, you know, because the alcohol is just the surface." His involvement in gang activity "becomes like a codependent." So that allowed him to dig deep, going "back into my childhood and see where I started to, you know, change the morals and the values that my mother had instilled in me." At the top of the list of those he had harmed Mendoza identified Carmen Delacruz and her family members; he listed his own family, and others; at the bottom of the list he cited himself, "because I harmed myself and that led me to harm others."

6. Risk Assessment.

Mendoza's most recent psychological evaluation and report was in August 2008, for the September 2008 parole hearing. The 2008 evaluation was, according to Deputy Commissioner Roberts, "generally pretty supportive" of parole.

The psychological evaluation noted Mendoza's history of alcohol abuse as a clinical disorder, but found no indication of past or present personality disorders of any kind. It noted the absence (as of 2008) of disciplinary infractions for nearly 10 years, and his exhibition of prosocial behavior and attitudes since his last discipline. It noted that (as of 2008) he had had no documented interpersonal difficulties with staff or peers in more than 10 years; that he had maintained steady job assignments and had shown himself not to be impulsive; that he had exhibited his concerns "for more than just himself" by devoting free time to service to others; and that he "related credible remorse for the victim and appeared to take responsibility for his criminal choices." The psychological evaluation rated Mendoza as being "in the low range of psychopathy," and indicated that "he represents a low risk for violent recidivism."

Deputy Commissioner Roberts noted that the "low risk" evaluation was given even without considering Mendoza's current extensive parole planning since the 2008 review. "[C]ertainly," in light of those current plans, "I don't think it got worse." As Deputy Commissioner Roberts put it, "Low risk is low risk. I don't think there's anything lower than low risk."

At his September 2008 parole hearing, Mendoza had received a two-year denial of parole. At that time the panel's overall recommendations had been for him to stay discipline-free, to earn positive chronos, to present current parole plans for the next panel, to update his relapse-prevention plan for the next hearing, and to get self-help and therapy to the extent it is available.

The psychological evaluation identified just two things Mendoza could do to lower his risk of recidivism: continue his abstinence from alcohol and drugs; and continue to "refine" his post-release plans.

7. The Board's Parole Denial.

At the September 2010 hearing the Board again denied parole, concluding that "Mendoza's mental state does not yet lend itself to suitability" for parole, because "he currently poses an unreasonable risk of danger if released from prison."

The panel members' explanations of that conclusion acknowledged Mendoza's good disciplinary record since his incarceration, his participation in self-help and vocational training, his knowledge gained from substance-abuse programming and attempts to practice the 12 steps. They noted the continuing evolution of his insight into gang lifestyles, his expression of "what we believe was genuine remorse for the victim," and the fact that "he readily took responsibility for the crime and appeared to understand how his actions did contribute to the murder to some degree." They noted that "his most recent psychological evaluation found him to be a low risk." And they found that "[h]e does have viable parole plans," noting his acceptance at Victory Outreach in Bakersfield, and his "numerous back-up plans where he can live with relatives."

To explain its denial of parole the panel described Mendoza's commitment crime as "dispassionate," "calculated," and "callous," in which Mendoza and his compatriots had gone out with an intention to retaliate against others, shots had been fired "into a car full of people," and Mendoza had actively participated by driving the car so as to make the shooting possible. It noted that the crime's motives—retaliation and gang posturing—were "very trivial" when compared to the murder. It characterized Mendoza's juvenile record as an escalating pattern of criminal conduct that had not been corrected by probation. And it explained that Mendoza had an unstable social history, having dropped out of school and "becoming steeped in the gang lifestyle" at the age of 14.

The panel found, however, that despite his progress, Mendoza "continues to exhibit some evidence of lacking full insight," rendering him a current unreasonable risk. "At this time, Mr. Mendoza needs to continue to develop full insight into the causative factors of the crime, continue to develop his knowledge in substance abuse programming, and gain awareness." Finding that Mendoza "is making very good progress, . . . we feel that he'll be ready for a parole consideration hearing in the next three years" (or perhaps even sooner, if the Board were to grant an early hearing).

Discussion

Penal Code section 3041, subdivision (b), obligates the Board to set a release date at a parole suitability hearing "unless it determines that 'consideration of the public safety requires a more lengthy period of incarceration for this individual.'" (In re Gaul (2009) 170 Cal.App.4th 20, 31, disapproved on other grounds in In re Prather (2010) 50 Cal.4th 238, 252.) That means that generally, '"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."' [Citation.]" (In re Lawrence (2008) 44 Cal.4th 1181, 1204 (Lawrence).)

1. Standard of Review.

The key criterion upon which the regulations authorize (and require) the Board to deny parole is that the inmate "will pose an unreasonable risk of danger to society if released from prison." (Cal. Code Regs., tit. 15, § 2402, subd. (a).) In making that determination the Board must consider all relevant, reliable, available information, including the inmate's criminal and social history, mental state, commitment offenses and attitude concerning it, and "any other information which bears on" his suitability for release. (Id. at subd. (d).)

The regulations list "general guidelines" that identify factors that the Board should consider when determining whether an inmate is suitable, or unsuitable, for parole. (Cal. Code Regs., tit. 15, § 2402, subds. (c), (d).) The listed factors that indicate unsuitability include (for example) that the commitment offense was carried out in an "especially heinous, atrocious or cruel manner"; that the inmate has a record of violence, or unstable or tumultuous relationships with others; and that the inmate has a history of severe mental problems related to the offense, or serious misconduct in prison. (Id. at subd. (c).) The factors that would tend to indicate suitability for parole include the inmate's lack of a juvenile record or history of violent crime; a stable social history; attainment of an age that reduces the probability of recidivism; actions that indicate remorse and understanding of the nature and magnitude of the offense; institutional activities indicating an ability to function upon release from prison; and the inmate's realistic planning for release. (Id. at subd. (d).)

The listed factors are intended to guide the Board in determining whether the inmate will pose an unreasonable risk to public safety if he is released from prison. "[T]he Penal Code and corresponding regulations establish that the fundamental consideration in parole decisions is public safety." (Lawrence, supra, 44 Cal.4th at p. 1205.) But unless public safety requires a lengthier period of incarceration, the presumption is that parole must be granted. (In re Shaputis (2008) 44 Cal.4th 1241, 1257 (Shaputis I).)

Courts are authorized to review whether the Board's decision to grant or deny parole adheres to the statutory and regulatory factors concerning parole suitability. Judicial review is also appropriate to determine whether the Board's decision adheres to due process standards—whether a decision to deny parole is supported by "some evidence" demonstrating that an inmate poses a current threat to public safety." (In re Prather, supra, 50 Cal.4th at p. 252; Lawrence, supra, 44 Cal.4th at pp. 1207-1209.)

The "some evidence" standard ofjudicial review "is unquestionably deferential, but certainly is not toothless," under the Lawrence decision's mandate. (Lawrence, supra, 44 Cal.4th at p. 1210.) Under the "some evidence" standard, "'[o]nly a modicum of evidence is required. . . . As long as the . . . [board's] decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court's review is limited to ascertaining whether there is some evidence in the record that supports the . . . decision.'" (In re Shaputis (2011) ___ Cal.4th ___, ___, ___ [slip opn. pp. 18, 24-25] (S188655, filed 12/29/11) (Shaputis II), quoting In re Rosenkrantz (2002) 29 Cal.4th 616, 677.)

The reviewing court's consideration of the Board's decision is not confined to a determination whether evidence of the statutory and regulatory factors that guide the Board's discretion appear in the record, however. The reviewing court must look also to the ultimate determination required of the Board: "whether there exists 'some evidence' demonstrating that an inmate poses a current threat to public safety, rather than merely some evidence suggesting the existence of a statutory factor of unsuitability. [Citation]" (Shaputis II, supra, at p. __ [slip opn. pp. 16-17], quoting In re Prather, supra, 50 Cal.4th at pp. 251-252.) That review "requires more than a rote recitation of the relevant factors"; it requires also examination whether the Board decision is supported by "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; In re Rosenkrantz, supra, 29 Cal.4th at p. 684.)

That is the review that Mendoza seeks from this court.

In denying Mendoza's habeas corpus petition, the Superior Court held that some evidence supports the Board's denial of parole. It identified that evidence as the Board's findings that the commitment offense was especially heinous and was carried out with Mendoza's deliberate participation; that the motives for the crime were relatively trivial; that Mendoza had a prior juvenile record involving receiving stolen property and grand theft auto; that he had an unstable social history, including dropping out of high school, being a gang member, and being the victim of several shooting incidents; and that Mendoza had minimized his crimes by characterizing them to the Board as "'a terrible mistake.'"

2. The Board's Decision to Deny Parole Is Not Supported By Evidence of Current Dangerousness If Mendoza Were Released.

a. The circumstances of Mendoza's commitment offense do not alone support a finding of his current dangerousness.

The Board found that Mendoza's offense was a "dispassionate," "calculated," and "callous" crime. That finding is plainly supported by evidence of the crime itself.

The crime arose from a desire by Mendoza and his fellow gang members to retaliate for an alleged $50 robbery by a member of a rival gang. Mendoza used that relatively trivial provocation to join with his armed compatriots, driving a stolen pickup truck—drunk—to find and retaliate against the rival gang. When they encountered a car filled with passengers driven by a member of yet another gang, Mendoza's codefendant shot into that car, and Mendoza drove his vehicle so as to aid him in doing so. And it shows that shots fired from Mendoza's vehicle struck and killed Carmen Delacruz, a passenger in the other car. Mendoza expressly confirmed both his own active participation in the crime, and that his gang lifestyle and "gang mentality" had led him to those events.

However, the circumstances of the commitment offense cannot alone support the determination that Mendoza would pose a current risk to public safety if he were released. "Because the parole decision represents a prospective view . . . , rarely (if ever) will the existence of a single isolated fact in the record, evaluated in a vacuum,"— including the egregiousness of the underlying crime—"suffice to support or refute that decision." (Lawrence, supra, 44 Cal.4th at pp. 1213-1214.) The reviewing court must inquire whether the circumstances of the underlying crime "are probative to the central issue of current dangerousness when considered in light of the full record before the Board." (Id. at p. 1221.) Even where the commitment offense is particularly heinous, atrocious, or cruel, "the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public," unless the record shows also that the nature of the offense "remain[s] probative of the statutory determination of a continuing threat to public safety." (Id. at p. 1214 [even an especially heinous murder will not establish unsuitability for parole in perpetuity].)

Without actually stating that its denial of Mendoza's parole request was based in part on the aggravated nature of Mendoza's commitment offense, in denying parole the panel cited not only the fact that Mendoza's offense was "dispassionate," "calculated," and "callous," but also that Mendoza "continues to exhibit some evidence of lacking full insight that makes him an unreasonable risk of dangerousness currently," and that he "needs to continue to develop full insight into the causative factors of the crime, continue to develop his knowledge in substance abuse programming, and gain awareness." These factors—lack of insight and awareness as to his substance abuse and his offense—are of the sort that might appropriately be considered in conjunction with the aggravated nature of the offense in determining Mendoza's current dangerousness, and thus his unsuitability for parole. "[W]here the record also contains evidence demonstrating that the inmate lacks insight into his or her commitment offense or previous acts of violence, even after rehabilitative programming tailored to addressing the issues that led to the commission of the offense, the aggravated circumstances of the crime reliably may continue to predict current dangerousness even after many years of incarceration." (Lawrence, supra, 44 Cal.4th at p. 1228.)

Mendoza contends that the record does not support these findings. Contrary to the Board's findings, he argues, the record is devoid of evidence that the circumstances of his commitment offense provide any indication of current dangerousness "even after rehabilitative programming tailored to addressing the issues that led to the commission of the offense," as Lawrence requires. (Lawrence, supra, 44 Cal.4th at p. 1228.)

The Traverse filed on Mendoza's behalf contends also that because the panel merely recited the aggravated nature of his commitment offense but did not expressly state its reliance on that circumstance in finding him unsuitable for parole, this court should not presume that it did rely on that circumstance. (See In re Roderick (2007) 154 Cal.App.4th 242, 265 ["the Board is responsible for articulating the grounds for its findings and for citing to evidence supporting those grounds"]; Shaputis II, supra, ___ Cal.4th at pp.___, fn 11 [slip opn. pp. 24-25, fn. 11], & ___ (conc. opn. of Lui, J.) [conc. opn. at pp. 2-3, 5].) Because we conclude that the record does not support the Board's decision for the reasons discussed below, we need not consider or address this contention.

Rather, Mendoza contends, the record shows instead that his rehabilitative gains have been consistent for over 12 years; that the finding that he lacks "full" insight is not supported, and is without any rational nexus to the determination that he remains dangerous; that his social and criminal histories (even if they show past instability) do not diminish the uncontradicted evidence of his current stable social relationships, and do not show any current dangerousness; and that after 21 years of incarceration and rehabilitation, his commitment offense therefore cannot now provide "some evidence" of current dangerousness.

Mendoza's contentions are well founded.

b. Mendoza's history of gang activity and substance abuse do not show a risk of current dangerousness if he were released.

In denying parole, the panel determined that Mendoza "needs to develop substance abuse programming" in prison, "as there was a nexus between the crime and substance abuse." But it also recognized that Mendoza "is making very good progress . . . we feel, in his programming and in his substance abuse programming, and he's been disciplinary-free for a long time now." It identified no particular defect or deficiency in Mendoza's substance abuse programming, and no available substance abuse programming in which Mendoza had failed to fully and successfully participate. While noting the psychological evaluation's assessment that Mendoza's risk of reoffending "would increase if he were to resume the use of intoxicating substances," neither the psychological evaluation nor any other evidence in the record indicated any serious concern—or basis for concern—that he would return to substance abuse or abandon his intention to abstain permanently from the use of alcohol.

Mendoza had explained to the Board how his alcohol addiction had played a role in his involvement in the gang lifestyle and his participation in the commitment offense. He had been participating in AA meetings since at least 1998, finding that the AA's 12 steps had allowed him "to look into the root factors of my addiction and my destructive behavior." His letters of support from family, friends, and others include many references to support they would provide with respect to substance abuse and continuing AA participation. CDC 128(b) certificates showed that since his 2008 parole hearing Mendoza had completed substantial substance abuse programming (of which the panel first learned at the 2010 hearing), including "Definitions, Terms, & Self-Diagnosis; Alcohol & Other Drug Education; Triggers, Cravings, & Avoiding Relapse; "Planning for Sobriety"; and "Introduction to Self-Help Programming." And the record shows his participation as an active member of AA who had "demonstrated a willingness to participate in AA programming," who was "an active participant in group discussions," and who "inspir[ed] others to join in."

Mendoza's psychological evaluation apparently found no basis for any such concern, for it concluded that Mendoza had "a low likelihood" of becoming involved in a future violent offense. And the panel accepted that evaluation, concluding that "they're telling us that it looks like you've got those things pretty much wired down." It did not dispute any aspect of the assessment that Mendoza presented a low risk of future violence, and did not identify any basis in the record for doing so.

Nor did the panel identify any rational nexus tying the immutable facts (of Mendoza's commitment offense, his past gang involvement, substance abuse, and history of having dropped out of school and having suffered gunshot wounds on several occasions), to its finding that he presents a risk of current dangerousness. This therefore is not a case, such as Shaputis I, in which the current evidence indicated a low risk of future violent behavior, but other portions of the evidence on which the Board was entitled to rely "called that conclusion into question . . . ." (Shaputis II, supra, ___ Cal.4th at p. ___ [slip opn. p. 11] (conc. opn. of Lui, J.).) The panel identified nothing that calls into question the record's overwhelming evidence that Mendoza had overcome his alcohol abuse, had demonstrated "genuine" remorse for his commitment offense, and had expressed "appropriate insight" into his personality style "and the causative factors of the life crime."

Nor have we found anything to support any such doubts, if they had been expressed by the panel. (In re Sturm (1974) 11 Cal.3d 258, 272 [Board is required as a matter of due process to identify the reasons for its parole denial].) The record thus does not support the Board's determination that Mendoza's commitment offense, past gang involvement, substance abuse, and history of being shot, show a risk of current dangerousness if he were to be released on parole.

The Shaputis II majority opinion and Justice Lui's concurring opinion briefly discuss the impact on the scope of review of the requirement that the Board identify the reasons for its parole denial. (Shaputis II, supra, ___ Cal.4th at pp. ___, fn 11 [slip opn. pp. 24-25, fn. 11], & ___ (conc. opn. of Lui, J.) [conc. opn. at slip. opn. pp. 2-3, 5].) But that issue played no apparent role in that case, and is equally without consequence here.

c. The panel's finding that Mendoza lacks full insight into his commitment offense is not supported, and is without rational nexus to the finding of current dangerousness.

"[T]he presence or absence of insight is a significant factor in determining whether there is a 'rational nexus' between the inmate's dangerous past behavior and the threat the inmate currently poses to public safety. [Citations]." (Shaputis II, supra, ___ Cal.4th at p. ___; Shaputis I, supra, 44 Cal.4th at p. 1261.) That is because a "lack of insight" into past criminal conduct can reflect an inability to recognize the circumstances that led to the commitment crime; and such an inability can imply that the inmate remains vulnerable to those circumstances, and would react to them similarly if again confronted by them. (Id. at pp. 1260, 1261, fn. 20; Lawrence, supra, 44 Cal.4th at p. 1214.) The panel in this case identified Mendoza's minimization of his commitment offense and lack of full insight into it as factors that demonstrate his present unsuitability for parole. These factors are not supported by the record, however.

Two essential elements are missing. First, the evidence on which the panel relied to find these factors does not show their current existence. Second, the panel failed to identify how these factors relate to its conclusion that Mendoza would present a danger to public safety if he were released. Without the first of these elements, the panel's finding lacks a sufficient evidentiary basis; without the second, the evidentiary basis (even if it were sufficient) would fail to establish the ultimate fact. "It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public." (Lawrence, supra, 44 Cal.4th at p. 1212; Shaputis II, supra, ___ Cal.4th at p. ___ [slip opn. p. 31] [issue on review is "whether some evidence supports the ultimate conclusion that the inmate poses an unreasonable risk to public safety if released"].)

A finding that a petitioner for parole lacks insight must be based on identifiable and significant defects in his insight into his criminal conduct or its causes, which have "some rational tendency to show that the inmate currently poses an unreasonable risk of danger." (In re Ryner (2011) 196 Cal.App.4th 533, 548-549 & fn. 2; In re Rodriguez (2011) 193 Cal.App.4th 85, 97.) As the court put it in Ryner, when the Board invokes "lack of insight" as a reason to deny parole, its conclusion about the inmate's lack of insight "must be based on an identifiable and material deficiency in the inmate's understanding and acceptance of responsibility for his or her commitment offense," reflected in the inmate's responses reflecting remorse, acceptance of his alcoholism, and his acknowledgement of responsibility for his crimes. (In re Ryner, supra, 196 Cal.App.4th. at p. 549, fn. 2.)

Announcing its decision that Mendoza is not yet suitable for parole because he poses an unreasonable risk of danger if released from prison, the panel explained that "Mr. Mendoza has made progress" with respect to his insight into his former gang lifestyle, and into the damage he had inflicted upon his victims, his family, and himself. His insight "is developing," the panel found, "and it continues to evolve in a positive manner." Evaluating his explanations and actions, the panel concluded that Mendoza's remorse for the victims of his crime was "genuine."

The record fully supports these affirmative findings. Mendoza explained to the Board that he had written letters of apology to Carmen Delacruz's parents, and to the driver and each of the other passengers in the car in which she was riding when she was shot. He explained how a panel member at his 2008 parole hearing had led him to an understanding of the purpose and meaning of making amends for his crime and the pain he had caused to Carmen Delacruz's family and the other passengers, as well as to his own family and to himself. He explained how he had come to see that the significance and importance of making amends for his conduct was not to gain forgiveness for himself, but to take responsibility for his actions and to show his respect to those he had harmed. He had articulated his understanding that his conduct—his lifestyle and his resulting crimes—had "caused so much pain, sorrow and frustration" for people he did not know and for his family, due to "a terrible mistake in his judgment and actions without thinking." And Mendoza also reiterated his unequivocal understanding and acceptance that the victim's death resulted from his own conduct, not just that of the shooter: "[O]nce he started shooting, I became part of that, and I willfully went and continued to drive in a way so he could continue to shoot. So that's why I say, I accept full responsibility for what happened that night."

Mendoza went on to explain that "it's not just a one-time thing. It's a living amends." "And I started researching more and continued to examine myself more. And you know, I wrote them from the heart." If he had written to them earlier, he explained, "it would have probably been, you know, more intellectual. But now it was more from the heart."

Mendoza's psychological evaluation is consistent with his expressions to the panel on these subjects, observing that Mendoza "related credible remorse for the victim and appeared to take responsibility for his criminal choices," and that he "has demonstrated appropriate insight to his personality style and the causative factors of the life crime."

Expressly accepting Mendoza's expressions at face value, the panel concluded that Mendoza's remorse was "genuine," and that he "readily took responsibility for the crime and appeared to understand how his actions did contribute to the murder to some degree" even though it had not been he who had personally held the gun or pulled the trigger. Notwithstanding these conclusions, however, the panel found that Mendoza's gains and his insight "are not yet complete."

The only material deficiencies in Mendoza's understanding and acceptance of responsibility for his commitment offense that the panel identified were certain of Mendoza's statements, read into the record from the Board's 2010 report. These statements were that Mendoza "maintains that his intentions were never to harm the victim in any way," and that he "admitted that he made a terrible mistake in his judgment and actions without thinking." These statements, the panel explained, indicate that Mendoza "continues to exhibit some evidence of lacking full insight that makes him an unreasonable risk of dangerousness currently. . . ."

From the record it is not clear whether the panel was aware that these statements were not at all recent; they reflected, at most, Mendoza's insight many years ago. Thus even if they could evidence some lack of insight or acceptance of responsibility when they were made, without more they cannot show Mendoza's current insight, remorse, or potential dangerousness. (In re Barker (2007) 151 Cal.App.4th 346, 369 [If the inmate genuinely accepts responsibility, "'it does not matter how longstanding or recent'" that acceptance may be].)

These statements appeared in the Board's September 2010 Life Prisoner Evaluation ("2010 Counselor's Report"), as though they had been recently made by Mendoza. But (perhaps unknown to the panel) the record shows that they also appeared, word-for-word, in both the 2005 and 2008 Counselor's Reports. Thus while the 2010 Counselor's Report makes it seem as though these statements reflect Mendoza's current thinking, in fact they were made much earlier.

The record contains no current adoption or reiteration of these statements. Indeed, when they were read into the record at his parole hearing, Mendoza promptly explained what he had intended by them: that when he said he did not intend to hurt the victim, he meant that he did not intend to hurt Carmen Delacruz—the passenger who had died as a result of his commitment offense. The person that he and his compatriots were trying to find and to retaliate against, he explained, was the member of the rival gang "that had committed the robbery," not Carmen Delacruz, whom he did not even know. That, he explained, did not minimize his responsibility for his crime.

Mendoza's 2010 explanation is not at all inconsistent with his denial of an intent to minimize his responsibility for his crime, but expresses his understanding that it had been his own bad choices and conduct—no one else's—that had resulted in Carmen Delacruz's death. When he said that he did not intend to hurt the victim, he meant that he did not intend to hurt Carmen Delacruz, the passenger whose death resulted from his conduct. Mendoza's statements expressly confirm that his intention when he and his fellow gang members set out to find members of the rival gang was to retaliate against and hurt someone, though not specifically Carmen Delacruz.

In light of his 2010 explanation (and perhaps even without it), Mendoza's 2005 statements—that his crime reflected a terrible mistake and that his intentions had not been to harm Carmen Delacruz—cannot accurately be characterized as a "continued minimization" of his commitment offense, or a failure to accept full responsibility for it. Even if the 2005 statements accurately reflected Mendoza's current thinking five years later, they therefore do not support the panel's conclusion that they reflect a minimization or lack of insight into his offense, or that they demonstrate his current dangerousness if he were released. While it is up to the Board to decide the extent to which Mendoza's explanations are believed, the Board may not arbitrarily attribute to them meanings that they do not convey. (Shaputis II, supra, ___ Cal.4th at p. ___ [slip opn. p. 26] [reviewing court may not interfere with Board's credibility determination "unless that determination lacks any rational basis and is merely arbitrary"].)

The district attorney's representative suggested at the hearing that Mendoza's statements show that "[h]e's avoiding responsibility for intending to kill Carmen"; but at the same time he conceded that it is "probably true" that Mendoza did not intend to harm Carmen Delacruz (although "they meant to shoot somebody.") "He didn't even know her, didn't know she was in the car."

Far from tending to minimize his commitment offense or eschew his responsibility for it, Mendoza's 2010 explanation accurately rests upon the evidence and theory on which he was convicted: that he and his compatriots had gone out, drunk and armed, with a criminal intent to find and violently retaliate against their rival gang and "this individual that committed the robbery"; that he did not know the occupants of the car into which the shots were fired, or the victim who died as a result; that his conduct, and the killing that resulted from his conduct, was a "terrible mistake," "and I accept full responsibility for it" because when the shooting started, "I was part of what went down that night."

Mendoza's explanations that he had acted without knowing or intending to harm the individual who was shot thus coincided with the panel's own conclusion that Mendoza did not know who was in the victim's car—a fact on which it had relied to find that the murder was "dispassionate" and "callous." Mendoza acknowledged to the Board that Carmen Delacruz "was an innocent victim who lost her life as a direct result of my senseless acts of aggression and gang violence." The Board was required by law to take into consideration the undisputed fact of the commitment offense that although Mendoza drove the shooter's vehicle, he did not personally shoot the victim. (Shaputis, supra, 44 Cal.4th at p. 1261 [petitioner has due process right to "individualized consideration with regard to all relevant statutory factors," including positive factors].)

If Mendoza had instead said that he did intend to harm Carmen Delacruz (although he did not know her or her presence in the car), that statement arguably would have indicated a lack of insight and minimization of personal responsibility (as well as a lack of credibility), for it could only have indicated a failure to deal honestly with the uncontradicted evidence of his crime.

The panel expressly determined—consistent with the express findings of Mendoza's psychological evaluation—that Mendoza's remorse was "genuine" and that he "appeared to understand" how his conduct had led to his victim's death. In light of these determinations, and the absence of anything in the record to indicate otherwise, the statements on which the panel relied to find dangerousness do not themselves exhibit any deficiency in Mendoza's insight or acceptance of responsibility for his commitment offense. They are equally unable to provide any basis for the Board's conclusion that Mendoza would pose a substantial risk of current dangerousness if he were released on parole. (In re Palermo (2009) 171 Cal.App.4th 1096, 1110, 1112 [inmate's statement with respect to his intent in perpetrating commitment offense, which is not inconsistent with the evidence, does not support finding that he remains a danger to public safety].)

Nor do the remaining relevant factors support the Board's decision. As set forth above, Mendoza's juvenile record reflects no history of violent crimes (Cal. Code Regs., § 2402 (d)(1), (d)(6)); his psychological evaluation indicates no mental health issues, and confirms his maturation, growth of understanding, and insight (Cal. Code Regs., § 2402 (c)(5), (d)(7)); he has developed marketable skills and has made realistic plans for his release (Cal. Code Regs., § 2402 (d)(8)); both his psychological evaluations and his advancing age indicate low probability of recidivism (Cal. Code Regs., § 2402 (d)(7)); his conduct in prison has been discipline-free for many years, and while in prison he has participated actively and successfully in self-help and substance abuse programming, educational advancement and vocational training, as well as prosocial activities in aid of others (Cal. Code Regs., § 2402 (d)(9)); and his many letters of support demonstrate that he is capable of sustaining stable relationships. (Cal. Code Regs., § 2402 (d)(2).)

The Board's decision thus fails to identify, and the record fails to show, any evidence supporting the panel's finding that Mendoza "continues to exhibit some evidence of lacking full insight," as well as any nexus between those supposed circumstances and its conclusion that Mendoza's lack of insight renders him an unreasonable risk of current dangerousness. That nexus is essential to Mendoza's due process rights. (In re Twinn (2010) 190 Cal.App.4th 447, 472.) "[L]ack of insight, like any other parole unsuitability factor, supports a denial of parole only if it is rationally indicative of the inmate's current dangerousness. (Shaputis II, supra, ___ Cal.4th at p. ___ [slip opn. p. 31]; In re Twinn, supra, 190 Cal.App.4th at p. 465.) Without that evidence and that nexus, the panel failed to fulfill its duty to provide "more than a 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.)

Although our review "'is limited to ascertaining whether there is some evidence in the record'" to support the Board's decision, we conclude for each of the reasons discussed above that the record lacks evidence—even a "modicum" of evidence—to support the parole denial. (Shaputis II, supra, ___ Cal.4th ___, ___, ___[slip opn., pp. 18, 24- 25], quoting In re Rosenkrantz, supra, 29 Cal.4th at p. 677.)

On this record, the denial of parole cannot be sustained. Mendoza is entitled to habeas corpus relief. The Board's denial of parole must be set aside.

This result renders it unnecessary to reach Mendoza's contention that the Board's application of "Marsy's Law," the 2008 amendment to section 3041.5, subdivision (b)(3), postponing his next parole hearing for three years, constitutes an ex post facto violation.
--------

Disposition

Mendoza's petition for writ of habeas corpus is granted. The Board is ordered to vacate the denial of parole. The Board is directed to proceed in accordance with its usual procedures for release of an inmate on parole unless it determines within 30 days of the finality of this decision to conduct a new hearing to determine whether Mendoza is currently suitable for parole, in accordance with due process of law and consistent with our determination that the evidence in the current record is not sufficient to constitute some evidence that Mendoza would pose an unreasonable risk to public safety if he were released on parole. (In re Prather, supra, 50 Cal.4th at pp. 244, 258; see In re Twinn, supra, 190 Cal.App.4th at p. 474.)

NOT TO BE PUBLISHED

CHANEY, J. We concur:

MALLANO, P. J.

JOHNSON, J.


Summaries of

In re Mendoza

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Jan 26, 2012
B233813 (Cal. Ct. App. Jan. 26, 2012)
Case details for

In re Mendoza

Case Details

Full title:In re MARTIN MENDOZA, on Habeas Corpus.

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

Date published: Jan 26, 2012

Citations

B233813 (Cal. Ct. App. Jan. 26, 2012)