Opinion
H036836
10-28-2011
In re LOUIS OLIVEREZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Santa Clara County Super. Ct. No. 171795
I. INTRODUCTION
Petitioner Louis Oliverez was convicted of first degree murder and sentenced to prison for 25 years to life. On April 27, 2010, a panel of commissioners representing the Board of Parole Hearings (Board) found Oliverez unsuitable for parole and ordered his subsequent parole hearing be deferred for five years.
The Santa Clara County Superior Court granted Oliverez's petition for writ of habeas corpus and ordered the Board to conduct a new hearing within 100 days. Respondent Raul Lopez, warden at California State Prison, Corcoran (Warden), appeals from the order. He argues that the record contains some evidence to support the Board's determination that Oliverez would pose a risk to public safety if released. We agree with the Warden and, therefore, reverse the order of the superior court.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The 2010 Board Hearing
Oliverez was convicted in 1997 of first degree murder, conspiracy to commit murder, and grand theft. (Pen. Code, §§ 182, subd. (a)(1), 187, 484.) He was sentenced to a term of 25 years to life. His minimum eligible parole date was June 28, 2010. The hearing at issue, held two months prior to his minimum eligible parole date, was Oliverez's initial parole consideration hearing. Except where indicated, the following facts are taken from the transcript of the 2010 hearing.
1. The Life Crime
On September 27, 1993, the victim, Paul Farfan, was shot to death. Farfan suffered five gunshot wounds: one to the chest, two to the back, one to the chin, and one to the back of the head. Law enforcement investigation determined that Oliverez and Adam Caris met with Farfan shortly prior to the shooting. Oliverez was later arrested at the Arena Hotel, where he was staying with his girlfriend, Jeannette Alarcon. Drugs and weapons were found in his hotel room. At trial, each codefendant cast the blame upon the other.
At the parole hearing, Oliverez offered his version of the crime, which he admitted was "different from some accounts" he had given earlier. Oliverez had earlier claimed he shot Farfan in self defense and that the reason he offered that version was to avoid being targeted in prison. At the 2010 parole hearing he gave a different version. Oliverez stated that on the night of the murder he was on his way to pick up Farfan when he met Caris and Jessica Salazar at a 7-Eleven. Caris and Salazar suggested that Oliverez go get Farfan and come back to where they were. Oliverez knew that there was some "subplot being hatched," that Salazar and Caris were planning some harm. Nevertheless, Oliverez picked up Farfan and returned to the 7-Eleven where he met Caris. Oliverez, Farfan and Caris drove around looking for a hotel. When they got to the border with Milpitas they encountered some police units, so they turned around; Farfan, who was then on parole, had said he had weapons with him. They eventually pulled over to Watson Park where Oliverez got out to urinate.
While his back was turned, Oliverez heard two gunshots behind him. He turned and saw Salazar holding a gun in her outstretched arm pointing at Farfan. Farfan had jumped back into the car and was fumbling around. Caris grabbed the gun and while he and Salazar wrestled over the gun Farfan came out of the car and rushed toward them and began wrestling with Caris. Farfan was lying on top of Caris and Caris fired a shot into his chest. He fired again. "He took maybe, three, four, five steps back. And then came back in and fired a shot into his head." Oliverez just stood there. He had blood spattered on his socks and shoes because Farfan had bumped into him.
Oliverez said that when Salazar and Caris told him to pick up Farfan he suspected something bad was going to happen. When asked what he believed their motive was, Oliverez said that Salazar and Caris had a love affair and they needed to "gain a monetary advantage over the streets based upon the drug sales." Also, he knew that Farfan had been beating Salazar, so that "played a role" in his willingness "to go around with this."
Oliverez provided the Board with a copy of the appellate opinion relating to the case (People v. Caris (May 31, 2002) H018246 [nonpub. opn.]), which the Board read and considered during its deliberations. The opinion provides details of two other versions of the crime. The first was the version he gave police shortly after his arrest: "Oliverez told the police that, between 11:00 p.m. and midnight on the night of the murder, he had borrowed Alarcon's car, driven to Farfan's brother's home, picked up Farfan, and drove to Watson Park to drink and talk. He added that he and Farfan stayed in the park for 20 minutes and, afterward, he drove to an apartment, dropped off Farfan, and returned to the Arena Hotel." (Id. at p. 3.) At the parole hearing, Oliverez explained that the reason he initially gave the police a completely different version of the crime was "because of the gang overtones, the implications of being around these people and the drug sales, the prison gang involvement. It wasn't they weren't just your regular street gang oriented type people. They were connected to major Nuestra Familia members inside the prison system. So, it was something that I really had to strongly consider while I was sitting in the car after the crime was committed." (Italics added.) He promptly backtracked, however, stating that he did not really know about the gangs at the time, he "wasn't that sophisticated" and that it was only through the trial that he came to understand how Nuestra Familia worked.
The second version detailed in the appellate opinion is that given by Oliverez in surrebuttal at trial. That version was similar to the story he gave to Board except that he described Caris as the only shooter, did not implicate Salazar at all, and did not describe any wrestling for the gun or seeing Farfan on top of Caris. (People v. Caris (May 31, 2002) H018246 [nonpub. opn.] at p. 4.)
2. Social/Criminal History
Oliverez was born in 1968 in Salinas, California. His parents are still living and still married. He experimented with PCP, cocaine, and alcohol as a teenager. He worked as a truck driver before joining the Marine Corps in 1991. He was still in the service when Farfan was murdered. He loved the military but it was not working out well for him toward the end. He had become involved with people who had lots of money and who spent a lot of time partying and doing drugs and was being seduced by their lifestyle. Now he realizes that their lifestyle was "immoral" and that they did "unethical things" and, although he "wasn't involved" had "turned my other cheek." He had attached himself to that lifestyle simply for the "perks of having a good time."
Oliverez was first arrested in 1985 when he was 17 years old. According to Oliverez, he was held at the California Youth Authority (CYA) for two years for the misdemeanor of giving false information to a peace officer. (The district attorney had been unable to pull up any juvenile records.) He was convicted of battery twice as an adult. He had two convictions for driving under the influence and five other misdemeanor Vehicle Code violations.
Oliverez denied having any involvement with gangs although he admitted that while in CYA gangs were prevalent and the situation had an impact on him. He identified "with Northern California" and northerners fight southerners, but he was never initiated into a gang. When he got out of CYA he "had the tattoos" so that "a lot of people started to identify with me a lot more." He told the Board that he did not get involved with the gang until after he joined the Marines. He "knew a lot of girls" and the girls "had boyfriends, cousins, brothers" and these boyfriends, cousins, and brothers were drug dealers who had associations with the prison gangs, and that is how he met Farfan and Caris, who he believed were "Northern Structure" members. Oliverez claimed that it was only in the course of the trial that he learned that Caris was "one of the more high ranking individuals within the Northern Structure." He stated that the only reason he ever said he was affiliated with Northern Structure was so he could claim to be a gang dropout and gain protective housing while in prison. He admitted lying to prison staff about his status as a Northern Structure gang member.
Oliverez now opposes gangs and believes he has the expertise to be able to "tell the kids about how these gangs operate" in order to "prevent a kid from going down the same path."
3. Institutional Record
Oliverez's institutional record shows no gang association. Vocationally Oliverez was removed from the mill and cabinet vocation for "failure to program." He completed four separate vocations related to the nursery industry, has worked as a plumber, a porter, and has been involved in a number of Bible courses. He has attended AA for about nine months, 15 sessions of "Friends Outside Parenting" program, and an anger management class. There were several laudatory chronos in his file commenting upon his intelligence and work ethic.
Oliverez's record during incarceration is marred by two disciplinary violations (CDC 115) and four counseling reports (CDC 128-A). The 115s were for falsification of a ducat on April 9, 2004 and refusal to report on January 20, 2004. The April 2004 incident involved his desire to get out of C-status, pursuant to which one is denied yard access, outdoor exercise, and fresh air. He wanted to get outside to claim a package he knew was waiting for him and so took an opportunity, knowing that "some of the officers are lenient towards that." He knew better than to falsify the ducat but thought he could get away with it. The 128-As were for not reporting on February 3, 2004, leaving the dining hall with unauthorized food on December 12, 2003, disobeying orders on October 22, 2002, and not blocking up on August 19, 1998. There are also several "general chronos" regarding negative behavior and a number of reports of enemy concerns.
A CDC 115 is issued for misconduct "believed to be a violation of law or . . . not minor in nature." A CDC 128-A is issued for incidents of "minor misconduct." (Cal. Code Regs., tit. 15, § 3312, subd. (a)(2) & (3); In re Reed (2009) 171 Cal.App.4th 1071, 1077.)
4. Parole Plans
Oliverez's plan for parole is to move in with his uncle in Marina Del Rey. His uncle's home is close to a number of places where Oliverez could get spiritual support as well as several AA programs. There are also landscaping job opportunities in the area.
5. Psychological Evaluation
Oliverez underwent a psychological examination by Dr. Julie Olson. Olson's report is dated February 26, 2009. The report indicates that Oliverez has been treated for mild anxiety since 2008 and has a history of alcohol abuse and weekend binge drinking. Alcohol use impaired his decisionmaking skills. He has been sober since the night of the murder.
Olson placed Oliverez in the low range of clinical psychopathy and found him to be at low risk for violent recidivism. Olson states, "Mr. Oliverez currently presents a relatively low risk for violence in the free community. He has limited legal history, which consisted of seven misdemeanors prior to the instant offense, and two non violent rule violations noted within his CDCR incarceration." All reports indicated that he is behaviorally stable since April 2004. His risk of violent recidivism would increase if he relapsed into use of intoxicating substances; it would decrease if he were participate in additional drug treatment to develop a substance abuse relapse prevention plan, verify parole plans, and continue to examine the personal causative factors of the life crime.
6. Community Support and Opposition
Oliverez submitted numerous letters of recommendation from family and friends. In opposition was a letter from the San Jose Police Department, in which the chief of police stated the department's opposition to parole. A representative of the Santa Clara County District Attorney's office was present at the hearing and argued against finding Oliverez suitable for parole.
7. The Board's Decision
The presiding commissioner gave the Board's decision, first stating that the commitment offense was "part of the finding of unsuitability." While acknowledging that all murders "are heinous, atrocious, or cruel," the Board found "this one in particularly, as it is a first degree murder, was a little deeper in those characterizations." The victim was "premeditatedly set up and murdered in cold blood. . . . The head wound was the last one reportedly to be fired, which is what could be considered a coup de grace shot. It was unnecessary, only proved to a point to others, who may find him, that he was murdered for a reason. It was extraordinarily dispassionate, very calculated, obviously. It was an execution style murder." The Board found the motive was both speculative and trivial in that it related to drug trafficking. "There was gang involvement and perhaps jealousy." Oliverez had some prior criminality and, "although it makes absolutely no sense" he was committed to CYA for three misdemeanors.
By all accounts, Oliverez had a "good, solid upbringing" but in spite of all that he failed probation as a juvenile and as an adult. He also had a history of drug use. "But where we have our concern today -- Because those are all historical factors that'll never change -- Where we our concern today is a couple of different areas. And one of the areas is minimizing." The Board noted that he minimized his alcoholism and he did not come out and answer specific questions. Rather, he would "kind of dance around them." The Board also found fault with Oliverez talking poorly about the victim, "It doesn't serve a purpose, except perhaps in your mind to make you look better and him worse."
Another area of concern was Oliverez's manipulative behavior. Although his disciplinary violations were not excessive and were not violent, they were "extremely manipulative. And manipulation is a theme that has occurred in your life and in your criminal history." The 2004 "falsification of a ducat to get out of C-status is indicative of your manipulative history and continuing manipulation of the system to do what you want." He had given multiple versions of the crime; most were given under oath. He had "gone the gamut from saying [he] didn't know anything about it, to the fact that Mr. Caris and Jessica shot and murdered Paul Farfan, to the fact that you were the [one] who actually shot and murdered Paul Farfan." All versions were done in an attempt to manipulate. The same was true of his statements about his gang involvement. The Board noted that in his closing statement Oliverez had described himself as highly qualified, with an in-depth understanding of gangs to be able to work in the community to teach youth about how bad it would be to join a gang. "This from a person who was never validated as a gang member . . . . So, what leads you to believe that you are highly qualified, with an in-depth understanding of prison gangs, is a bit much to this Panel." "You truly, to this Panel, came across as very self-absorbed and very self-centered."
Oliverez's manipulative behavior and multiple instances of dishonesty led the Board to doubt his truthfulness in general. "And not only does your credibility suffer as a result, but it's also a nexus between your current behavior and the behavior that you've exhibited throughout the years. As far as insight into the factors of what caused you to make certain decisions in your life, the problem is, is that we don't know, perhaps, exactly what you did or didn't do that night." The Board recognized that Oliverez appeared emotionally remorseful, "We're just not sure what you're remorseful for, specifically. Are you remorseful for pulling the trigger and killing a man? Are you remorseful for being there and not doing anything? Or both? We're still not sure. And that goes back to your credibility and the concerns we have with that."
The Board commended Oliverez for the vocations and self help he had completed and cautioned him to become and remain discipline free. The Board made additional recommendations about preparing a relapse prevention plan pursuing additional self help, especially with regard to his relationship to gangs.
Pursuant to Penal Code section 3041.5, the Board found that Oliverez does not require a period of incarceration more than five years before his next parole hearing.
B. The Habeas Petition
Oliverez petitioned the superior court for a writ of habeas corpus. The superior court issued an order to show cause, faulting the Board for failing to apply the "new nexus test" of In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence). "It is circular, and shallow, reasoning to say the murder itself has weight against parole because the Board is thereby admitting that it bases a parole denial on the very reason that the person is there and eligible for parole in the first place." The order to show cause further stated that if, as the presiding commissioner acknowledged, all murders are heinous, atrocious, or cruel, then she was "admitting that she interprets her job as being to deny parole for the very reason the inmate is before her and eligible for parole in the first place."
On March 14, 2011, after receipt of the return and traverse, the superior court granted the petition for habeas corpus citing the reasons set forth in the order to show cause. The court directed the Board to hold a new hearing within 100 days. The Warden appeals from the order. We have issued a writ of supersedeas, staying enforcement of the order pending resolution of this appeal.
III. DISCUSSION
A. Legal Framework
Penal Code section 3041 and title 15 of the California Code of Regulations govern the Board's parole decisions. Under the statute the Board is required to set a parole release date one year before an inmate's minimum eligible parole release date unless it "determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting." (Pen. Code, § 3041, subd. (b).)
All unspecified section references in the following discussion are to title 15 of the California Code of Regulations.
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A parole release decision by the Board is essentially discretionary in that it is "the Board's attempt to predict by subjective analysis" the inmate's suitability for release on parole. (In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz).) Such a prediction requires analysis of individualized factors on a case-by-case basis and the Board's discretion in that regard is " ' "almost unlimited." ' " (Ibid.) The regulations provide that in making its determination the Board must consider "[a]ll relevant, reliable information" concerning suitability for parole (§ 2402, subd. (b)) and include a nonexclusive list of factors demonstrating suitability or unsuitability (id. subds. (c), (d)). The first unsuitability factor listed is the inmate's having committed the offense in a particularly heinous, atrocious, or cruel manner such as where multiple victims were attacked, injured, or killed; the offense was carried out in a dispassionate and calculated manner as with an execution-style murder; the victim was abused, defiled, or mutilated; the offense was carried out with exceptionally callous disregard for human suffering; or where the motive for the crime was inexplicable or very trivial. (Id. subd. (c)(1).) Other unsuitability factors include that the inmate possesses a previous record of violence, has an unstable social history, or has engaged in serious misconduct while in prison. (Id. subd. (c)(2), (c)(3), (c)(6).) Relevant suitability factors include that the inmate has no record of violent crime, a stable social history, demonstrated signs of remorse, realistic plans for release or marketable skills that can be put to use upon release, and a record of engaging in institutional activities that indicate an enhanced ability to function within the law upon release. (Id. subd. (d).)
The foregoing factors 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; § 2402, subds. (c), (d).) "[T]he fundamental consideration in parole decisions is public safety," and, therefore, "the core determination of 'public safety' . . . involves an assessment of an inmate's current dangerousness." (Lawrence, supra, 44 Cal.4th at p. 1205.) Thus, while the Board's discretion is broad, the Board's analysis "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." (Id. at p. 1210.)
Judicial review of the Board's decision is very deferential. To support the Board's decision, "[o]nly a modicum of evidence is required. Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the [Board]. . . . [T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the [Board], but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious. It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole. 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 [Board's] decision." (Rosenkrantz, supra, 29 Cal.4th at p. 677.)
Lawrence did not change the standard of judicial review of parole decisions set forth in Rosenkrantz but it did caution that the standard is "certainly . . . not toothless." (Lawrence, supra, 44 Cal.4th at p. 1210.) "[J]udicial review must be sufficiently robust to reveal and remedy any evident deprivation of constitutional rights. If simply pointing to the existence of an unsuitability factor and then acknowledging the existence of suitability factors were sufficient to establish that a parole decision was not arbitrary, and that it was supported by 'some evidence,' a reviewing court would be forced to affirm any denial-of-parole decision linked to the mere existence of certain facts in the record, even if those facts have no bearing on the paramount statutory inquiry." (Id. at p. 1211.) "Accordingly, when a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings." (Id. at p. 1212.)
Where, as here, the superior court granted habeas relief without an evidentiary hearing, our review is de novo. (Rosenkrantz, supra, 29 Cal.4th at p. 677.)
B. Analysis
In denying parole in this case the Board relied upon its finding that the commitment offense was particularly heinous because it was an execution style murder, carried out in a calculated manner and in a way to make an example of the victim. The Board also cited Oliverez's equivocal responses to questions, his manipulative behavior, and his lack of credibility, all of which suggested a lack of insight into the factors that led to his participation in the murder. The superior court's order vacating the Board's decision rested solely upon the Board's giving weight to the nature of the commitment offense and did not consider the balance of the Board's analysis. This was error.
Lawrence's "nexus" analysis, which the superior court found the Board to have ignored, is straightforward. The word "nexus" means, quite simply, "a link or connection." (Concise Oxford English Dict. (11th ed. 2004) p. 964, col. 2.) The link or connection with which Lawrence was concerned was the link between the factors found by the Board and the ultimate conclusion that the inmate would present a danger to the public if released. The whole point of Lawrence was that the Board's mere recitation of a fact, without somehow showing how it could be linked or connected to the ultimate finding of dangerousness, is insufficient to support an unsuitability determination. Nothing in Lawrence inhibits the Board's discretion to consider and weigh any of the factors relevant to its ultimate determination, which is what the superior court's order seems to suggest. Lawrence simply clarified: "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.) Although the superior court is correct that the circumstances of the offense, standing alone, are usually insufficient to support an unsuitability finding, the circumstances of the crime are not irrelevant nor did the Board rely solely upon the circumstances of the crime in this case.
The Board found that the crime was particularly egregious and there is some evidence to support that finding. The shot to the back of the head, delivered after the victim had already suffered other lethal shots, suggests that the murder was, indeed, a coldly calculated, execution-style murder. But as the Board recognized, the circumstances of the crime will never change. Accordingly, the Board turned to Oliverez's current behavior.
The Board found Oliverez did not answer questions directly and was manipulative. Again, there is some evidence to support these findings. In giving his version of the crime, Oliverez was less than clear about who did what when. When asked about his view of the alleged shooters' motive he said that Salazar and Caris had a love affair and they needed to "gain a monetary advantage over the streets based upon the drug sales," which hardly explains why they might have killed Farfan. His manipulative nature is evidenced by his falsifying the ducat to get out of C-status, lying about his gang involvement to manipulate his placement in prison, making negative comments at the hearing about the victim, and giving different versions of the crime at different times, always choosing the version that would serve him best at the time.
As a result of Oliverez's lack of directness, manipulation of his circumstances, and his admitted dishonesty, the Board concluded that it could not believe him; he was not credible. Neither the superior court, nor this court, can disturb that finding. Credibility is the sole province of the finder of fact, which in this case is the Board. (In re Tripp (2007) 150 Cal.App.4th 306, 318.) Although neither lack of credibility nor manipulative behavior is specifically listed in the regulations as an unsuitability factor, both are quite properly considered in the parole suitability calculus. The circumstances identified in section 2402, subdivision (c) are merely illustrative of factors tending to show unsuitability. Section 2402, subdivision (b), expressly provides, "All relevant, reliable information available to the panel shall be considered in determining suitability for parole." Evidence that the inmate manipulates circumstances to protect his own interests and is generally not believable is surely some evidence that the inmate in not suitable for parole since he cannot be trusted to lead a blame-free life if released.
Lawrence called for the Board to give its reasoning, to show that there was a connection between its factual findings and the conclusion that the inmate is currently dangerous. (Lawrence, supra, 44 Cal.4th at p. 1210.) That reasoning is implicit in the Board's explanation here. (Cf. In re Criscione (2009) 180 Cal.App.4th 1446, 1461.) Referring to Oliverez's varying versions of the crime and his dishonesty with prison staff, the Board stated: "And not only does your credibility suffer as a result, but it's also a nexus between your current behavior and the behavior that you've exhibited throughout the years. As far as insight into the factors of what caused you to make certain decisions in your life, the problem is, is that we don't know, perhaps, exactly what you did or didn't do that night." Although not artfully worded, the gist of the Board's pronouncement is that Oliverez's manipulative behavior and lack of credibility make it impossible to find that he has acquired insight into what led him to commit the crime for which he is incarcerated. An inmate's "maturity, understanding, and mental state [are] highly probative to the determination of current dangerousness." (Lawrence, supra, at p. 1220; see also, In re Shaputis (2008) 44 Cal.4th 1241, 1260.) Oliverez's inability to convince the Board that he accepts responsibility for the murder and that he understands what in his own makeup caused him to become involved is probative of his current dangerousness; the concern is that he could become involved in similar criminal behavior if released. Thus, there is some evidence to support the Board's conclusion that Oliverez is unsuitable for parole at this time.
IV. DISPOSITION
The superior court's order of March 14, 2011, is reversed and the matter is remanded to the superior court with directions to enter a new order denying inmate Oliverez's habeas corpus petition.
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Premo, J.
WE CONCUR:
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Rushing, P.J.
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Elia, J.