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In re Orozco

California Court of Appeals, Sixth District
Jul 18, 2008
No. H031425 (Cal. Ct. App. Jul. 18, 2008)

Opinion


In re ANTHONY OROZCO, on Habeas Corpus. H031425 California Court of Appeal, Sixth District July 18, 2008

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. 110292

Mihara, J.

Petitioner Anthony Orozco has been incarcerated since April 1987 pursuant to a conviction for second-degree murder (Pen. Code, § 187). In August 2006, the Board of Prison Terms (now the Board of Parole Hearings; hereafter Board) concluded Orozco was unsuitable for parole on the ground that he posed an unreasonable risk of danger to the public if released. On April 19, 2007, Orozco filed the instant petition for a writ of habeas corpus in which he alleges that the Board’s decision lacks evidentiary support. In particular, Orozco contends the Board relied on non-existent facts in determining that the nature of the commitment offense supported a finding that Orozco is a threat to the public.

On March 12, 2007, the superior court denied Orozco’s petition for a writ of habeas corpus to that court.

This court initially requested an informal response from respondent Acting Warden Richard Subia. Respondent submitted a letter brief arguing that the Board’s decision is supported by “some evidence” and must be upheld. We thereafter ordered respondent to show cause why Orozco is not entitled to a new hearing based on the lack of evidentiary support for the Board’s findings related to the disposition of the victim’s body. Contrary to respondent’s informal response, respondent’s return “admits that there are discrepancies in the hearing transcript between the Board’s statement of the facts of the commitment offense and the commitment offense facts that the Board cited in making its decision[.]” Thus, respondent now concedes that the proper remedy is remand to the Board for a new hearing in accordance with due process. We agree, and grant the petition.

I. Background

According to the Board’s recitation of facts at the hearing, Sandra Kay Wendell was strangled to death sometime between March 14 and March 15, 1985. About two months later, the victim’s body was discovered in a field, buried in a shallow grave. The fire department had previously responded to the burning of the victim’s car, and a lengthy police investigation eventually led to Orozco. Orozco added to the Board’s summary at the hearing. Orozco met the victim at a bar and he strangled her when she wanted to end their sexual encounter. He dumped her body in the field and moved her car to a vacant church parking lot and set the car on fire. A jury ultimately found Orozco guilty of second-degree murder, and the court committed him to prison for an indeterminate sentence of 15 years to life.

The Board commissioner stated that the body was discovered on “March 22, 1985,” but that the victim had died on March 14 or 15, “some two months earlier.” The probation report, which is referenced during the hearing, suggests that the mention of March 22 is a simple misstatement and that the victim’s body was actually discovered on May 22, 1985. This is consistent with the further observation that the body was found “some two months” after the victim died.

The clinical evaluation conducted prior to the parole hearing determined that Orozco was in the lowest risk category for violence on parole and that it was likely he would have little difficulty re-integrating into society. While incarcerated, Orozco participated in numerous self-help, educational, and vocational programs. Among other things, Orozco completed the vocational and educational training needed for certification as a journeyman-level cabinet maker. At the time of the parole hearing, Orozco was employed by the Prison Industry Authority as a pattern maker and had been disciplinary-free for over 17 years, since 1989. Orozco’s minimum eligible parole date was April 7, 1996.

The Board denied Orozco parole at the hearing on August 24, 2006. The Board recognized Orozco’s favorable psychological evaluations, his parole plans and marketable skill, his years of discipline-free behavior in prison, and his vocational and educational achievements. Nevertheless, the Board found Orozco unsuitable for parole based on the general finding that he posed an unreasonable risk of danger to society and a threat to the public. As support for this finding, the Board referenced the following: “[T]he commitment offense. The victim was abused after the offense, in which she was laid in an open field and not found for about two months. The nature of the crime was inexplicable in relation to the events. Further, the victim did not deter the inmate from committing another crime and then he took her to another location and set her on fire. . . . When the victim changed her mind [regarding sex], he strangled her to death, carried her to an open field, and left her. He then retrieved her personal belongings, drove her car to another location, and set her on fire.” (Italics added.) The Board also referred to “an escalating pattern of criminal conduct,” noting earlier arrests for theft and burglary and an attempt to flee county jail.

II. Discussion

“[P]arole 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.” (In re Rosenkrantz (2002) 29 Cal.4th 616, 654 (Rosenkrantz).) “[C]ircumstances tending to establish unsuitability for parole are that the prisoner (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) previously has 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).)” (Rosenkrantz, at pp. 653-654, fn. omitted.)

The Board’s finding that Orozco posed a danger if released rested largely on the nature of the commitment offense. (See Cal. Code of Regs., tit. 15, § 2402, subd. (c)(1)(A)-(E) [listing factors relevant to a finding of unsuitability for parole that relate to the commitment offense, including whether the “victim was abused, defiled or mutilated . . . after the offense[,]” whether the offense “was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering[,]” and whether “[t]he motive for the crime is inexplicable or very trivial in relation to the offense”].) However, the Board’s recitation of the facts surrounding the offense is materially flawed; there is no evidence that the victim was set on fire or otherwise abused after the murder. The Board’s summary of the crime notes only that the victim was buried in a shallow grave and not found for two months. Moreover, the record indicates that Orozco burned the victim’s car, not the victim herself. This is the sole fact listed to support the assertion that the motive of the crime was inexplicable when compared to the offense. The Board’s finding that the offense was committed in an especially heinous, atrocious, or cruel manner thus lacks evidentiary support.

The remaining factor cited in support of the Board’s unsuitability finding—increasing criminal conduct—appears secondary to the Board’s decision. We therefore cannot conclude that absent the erroneous finding that Orozco set the victim on fire, the Board would have reached the same decision regarding unsuitability for parole. (See In re DeLuna (2005) 126 Cal.App.4th 585, 598 (De Luna).) An order vacating the Board’s decision and remanding for a new parole hearing so that the Board may reconsider Orozco’s parole suitability is appropriate in these circumstances. (See Rosenkrantz, supra,29 Cal.4th at p. 658; De Luna, at p. 598.)

III. Disposition

The petition is granted. The Board’s August 24, 2006 decision is vacated, and the matter is remanded to the Board to conduct a new hearing regarding Petitioner Anthony Orozco’s suitability for parole. This opinion shall be final immediately upon filing with regard to this court. (See Cal. Rules of Court, rule 8.264(b)(3).)

WE CONCUR: Bamattre-Manoukian, Acting P.J., McAdams, J.


Summaries of

In re Orozco

California Court of Appeals, Sixth District
Jul 18, 2008
No. H031425 (Cal. Ct. App. Jul. 18, 2008)
Case details for

In re Orozco

Case Details

Full title:In re ANTHONY OROZCO, on Habeas Corpus.

Court:California Court of Appeals, Sixth District

Date published: Jul 18, 2008

Citations

No. H031425 (Cal. Ct. App. Jul. 18, 2008)