Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Peter P. Espinoza, Judge. L.A.S.C. Nos. A702431, BH007215.
Jesus Robles, in pro. per.; and Susan L. Jordan, under appointment by the Court of Appeal, for Petitioner.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Julie A. Malone and Nikhil Cooper, Deputy Attorneys General, for Respondent.
JOHNSON, J.
As no evidence exists to show that Jesus Robles presents a risk to the public upon release, we grant the petition, vacate the August 11, 2009 decision of the Board of Parole Hearings to deny parole for three years and direct the Board to conduct a new parole-suitability hearing in accordance with due process of law as set forth in In re Prather (2010) 50 Cal.4th 238.
BACKGROUND
Commitment offense
In 1984, when he was 20 years old, Robles and fellow gang members kidnapped, tortured, and killed Ruben Cruz. Robles was convicted of second degree murder, kidnapping, conspiracy, and felonious assault with a deadly weapon/force likely to produce bodily injury. He was sentenced to state prison for an aggregate term of 20 years to life.
Pre-incarceration history
Robles grew up in a stable and loving family. At the age of 12 years, Robles began associating with the “San Fer” gang. At the age of 16 years, he was “jumped” into the gang. He abused narcotics, alcohol and other substances. As a juvenile, Robles was arrested for breaking curfew and driving under the influence.
Robles had no adult criminal history.
In-prison behavior and education
The 2008 psychological evaluation reports: “The inmate reported that he has received Vocational certificates of completion in Graphic Arts, Janitorial, Upholstery and Silk Screen. According to his records he has received certificates of vocational completion in Vocational Janitorial, Vocational Upholstery and Vocational Silk Screen, which is confirmed by the record. The inmate has received satisfactory, to above average performance reports in reference to his work during his incarceration. [¶] Additionally, it appears the self-help activities the inmate has been involved include: completed twenty[-]five video reports, Calm Program, Controlling Anger for Lifetime Management Program, Life Prisoner’s Support Group, Heart Program, Breaking Barriers, and Remorse/Responsibility and Forgiveness.... Records indicate the inmate started to attend Alcoholics Anonymous in May of 1992 until he was transferred to CCI which did not have a Alcoholics Anonymous program until 1995, which the inmate began attending in 1995, and started in Narcotics Anonymous October 2001, and appears to have continued attending since these dates.”
Robles’s last serious disciplinary report was in 1989: fighting back after he was attacked by other inmates.
At the hearing, the commissioners read into the record a June 17, 2009 laudatory “chrono, ” written by Robles’s vocational landscaping instructor, stating: Robles had been under the instructor’s supervision for the past 22 months. Robles had “demonstrated the desire to learn; you’re helpful, respectful toward him and others; and you’ve.... completed all 12 [curriculum units]. ‘He follows directions and institutional rules without complaint, utilizes constructive criticism for self-improvement.’ And he says, ‘I feel that Mr. Robles is ready for the outside world.’”
Parole plans
The 2008 psychological evaluation reports: “The inmate[] reported his current plans for parole include residing in Granada Hills, California with a sister. In reference to occupational goals he stated, ‘Work construction with my brothers.’ He reported that he has wanted to work in the construction field stating, ‘The last twenty years.’ The inmate stated that in terms of additional training he would need, ‘none.’ The undersigned found letters of support, offering housing, financial support, and an offer of employment in the C-file dated 2006. The inmate stated that for his existing parole plan, ‘he’s waiting on the letters to process as we speak.’ [¶] He indicated that having a job is important to him stating, ‘It keep me busy, I can earn a good check and not depend on others.’ When asked about his long-term goals, he stated that he would like to ‘own a home and hopefully marry, live a peaceful life.’ He does not believe that his criminal conviction will pose difficulties for him in accomplishing his goals, stating, ‘No, I don’t associate with gangs, I don’t associate with drugs.’ The inmate reported that he communicates through letters and phone calls and has regular contact with members of his immediate family. He reported that his mother and sister visit twice a year, and this brother’s visit ranging from monthly to once every two to three years.”
At the hearing, the commissioners noted that Robles has many offers of support, both financial and residential. Joe Camerena, General Manager of Wilcox and Wilcox, offered Robles a job as a laborer at $12 per hour, with benefits after the first six months. Camerena stated in his letter that Robles’s father worked for Wilcox and Wilcox until he retired, and Robles’s four brothers, three of whom are supervisors and who are “important assets to the company, ” work there.
The commissioners further noted that Robles’s brother, Peter, who is married and the father of three, plans to have Robles live with him and his family in North Hills. The commissioners noted offers of residence by Robles’s other siblings, including his sister who “[d]escribes herself as happily married, three children, liv[ing] in a big house. [She] offers... one bedroom and one bath guest unit” to Robles.
Insight and remorse
The 2008 psychological evaluation reports: “When asked why he committed the life crime, he stated, ‘I was a follower, scared, peer pressure, I was trying to be tough and I wasn’t.’ When asked what he could have done to avoid the life crime, he stated, ‘Never got into the truck, nothing that I could have been done, even though they were my peers, if I showed fear they would have probably shot me too.’ When asked about what impact, if any, he felt the controlling offense has had on the victim and the victim’s family he stated, ‘anger, pain, disappoint, they probably hate me, wonder what their son could have been, grown up to be.’ He stated that ‘my family, better things out there for me, I want to enjoy life, and spirituality’ would help keep him out of future trouble. When asked what he would say to the victim he stated, ‘I’m sorry for what I put you and your family through.’ [¶] The inmate’s affect was congruent, and he appeared remorseful for his past behavior and for his responsibility in the life crime. He demonstrated a sense of empathy that appeared emotional and internal, rather that unemotional and detached. [¶] His insight appears adequate in reference to his responsibility in the commission of the commitment offense. At this time, the inmate appears to have explored the internal causes and factors that led to the commitment offense to include[:] poor decision making and judgment, the role of his substance abuse/dependence, his antisocial affiliation and its impact, and how these factors played part in the controlling offense. The inmate did not avoid nor limit his answers to the undersigned’s questions regarding the life crime.
“When asked, the inmate stated that he thought his current sentence was ‘fair, I took a life.’ When asked in reference to his legal counsel’s performance he stated, ‘He did a good job.’”
The evaluation also states: “The inmate appears to now view himself as [a] mature [person], who is better able to make decisions that are not impulsive, or without thinking of consequences. He stated that he now sees himself as stating, ‘A happy positive person, happy with myself, that I can be me, but also scared that I may never go home.’ He reported that he was a member of the ‘San Fe[r]’ gang beginning at the age of twelve and reported that he ended his gang affiliation in 1986 after being stabbed. In reference to substance abuse, he stated, ‘I started drinking at the age of sixteen, started one time a week and kept increasing to a 12 pack a day and liquor, up until the life crime.’ He reported he started using drugs at the age of twelve and described his substance as, ‘I experimented with all of them, pot, meth, coke, [and] LSD; [ ] PCP was my drug of choice.’ He further reported that he considers himself to have been addicted to [ a]lcohol and PCP.’ Worth noting when asked if he had ever used alcohol or drugs while incarcerated[, ] during the interview[, ] the inmate stated, ‘I drank pruno like a madman for three years, ’86 through ’89, and used [h]eroin on and off during that time too.’ As stated earlier the inmate has received five substance-related CDC 115’s with one resulting in the non-controlling offense during his incarceration. When asked about his attending Alcoholics Anonymous and Narcotics Anonymous, and if he had plans to continue after release he stated, ‘I’ve... stopped for a long time[.] I’ve grown up[;] I like myself sober. After release I will continue with AA and N[A].’ [¶] The inmate reported that his work history included[:] ‘construction, making car covers, farm work (in Mexico for 6 months), and for a private park’ prior to being incarcerated for the commitment offense. The inmate stated that his most significant accomplishments are[:] ‘Learning I can be me and sober, [b]eing a positive person, and no bad influences around to peer pressure me into doing something dumb.’ Currently he reported that he spends his time ‘[e]xercising, handball, jog, self help groups, try to be positive.’ The inmate reported that his main failures in life were [ ] ‘drugs, feeling sorry for myself and this life sentence’”
At the hearing, Robles addressed the commissioners before he read part of a letter of apology addressed to the victim’s family: “I would like to express to this Panel that I have accepted all facts and my personal culpability and take full and complete responsibility for my inexcusable acts. When I committed this crime 24½ years ago, I was an immature 20-year-old young man who did not have the mental capacity to truly understand that my actions at the time would have such a detrimental effect on so many people. Since that horrific day, it has taken me a lot of growing up to truly realize the impact my actions had on so many people who were directly and indirectly connected to this unfortunate incident. Yet, through many... self-help programs, Narcotics and Alcoholics Anonymous classes, I now believe I have a better insight into what caused me to act in such a horrific manner. I truly understand the impact my actions caused, and I realize there will never be any words that can accurately describe the sorrow I feel in my heart for the pain the Cruz family had to endure because they lost a loved one.” He later stated: “I will never forget Ruben Cruz and how his family attended almost every court hearing, the shame I felt while they cried at times in the courtroom—something I will never forget. I committed a very terrible crime 24½ years ago, and I am truly and sincerely sorry to everyone who has been affected by my deplorable acts.” He continued: “This letter may very well fall on deaf ears, but my faith in God tells me that I have a sincere obligation to myself to become a better person. I know some skeptics may write off this letter as a[n] apology [that is] idealistic and impractical, but this is what a God-fearing and God-loving person must do when they are wrong. I deeply and sincerely apologize. Since all people have defects of character, we must strive to see beyond hate and animosity. If hatred and animosity are [ ] learned behavior[s], then it is not possible... to unlearn [them]? I know this is true, because once I started attending any self-help groups and [sought] out anything undesirable about myself and corrected it, I became a better person by my efforts.”
Low risk to the public
The psychologist concluded that Robles presents a low risk of violence and general recidivism.
Denial of parole
In denying parole for three years, the Board focused on the nature of the commitment offense; in-prison disciplinary history; lack of insight into why Robles became involved in committing the offense; and lack of remorse.
As to insight, Presiding Commissioner Garner stated, in part: “Your past and present mental state, past and present attitude toward the crime [is] of concern to the Panel. The feeling was that you minimized your conduct by limiting your explanation of why the crime occurred to stupidity. Many people lack mental abilities, but very few get involved in homicides.” Presiding Commissioner Garner continued: “We also noted the issue of insight into the causative factors of your... conduct, excuse me, as evidenced by the fact that you have yet to come to terms with what we’re going to describe as the totality of the events. We’re not talking about just one minor aspect, but what allowed you to become involved in this crime.”
As to remorse, Presiding Commissioner Garner stated: “[A]lthough you claim you’re remorseful, the Panel is not convinced that you truly understand the nature and magnitude of the offense, because much of the remorse today was expressed about you as the victim, although you did express some remorse toward the victim and the victim’s family.”
Superior court’s decision
On October 13, 2010, respondent court (Hon. Peter P. Espinoza), denied Robles’s challenge to the Board’s August 11, 2009 denial of parole for three years.
DISCUSSION
Under Penal Code section 3041, subdivision (b), the Board has the power to decline to fix a firm date for an inmate’s release on parole and to continue the inmate’s indeterminate status, as it did with respect to Robles in this case, if it finds that the inmate’s crime or social history continues to reflect that he presents a risk to public safety. (In re Dannenberg (2005) 34 Cal.4th 1061, 1083–1084, 1095; In re Lawrence (2008) 44 Cal.4th 1181, 1227–1228.) In determining an inmate’s suitability for parole, the Board “must consider all relevant statutory factors, including those that relate to postconviction conduct and rehabilitation. [Citation.]” (In re Lawrence, supra, 44 Cal.4th. at p. 1219.) The presumption is that parole must be granted unless public safety requires a lengthier period of incarceration. (In re Shaputis (2008) 44 Cal.4th 1241, 1257.)
The Board must set a 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).)
In reviewing the Board’s parole suitability determination, we examine whether “some evidence” in the record demonstrates that the inmate poses a current threat to public safety (rather than whether some evidence supports the Board’s characterization of the facts contained in the record). (In re Lawrence, supra, 44 Cal.4th at p. 1191; In re Prather, supra, 50 Cal.4th at pp. 251–252.) The “some evidence” standard of review is “‘exceedingly deferential, ’” but “certainly is not toothless, ” for it “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.” (In re Lawrence, supra, 44 Cal.4th at pp. 1210–1212.)
In determining whether an inmate is suitable for release on parole—whether the inmate “will pose an unreasonable risk of danger to society if released”—the Board must apply the factors found in California Code of Regulations, title 15, section 2281, subdivisions (c) and (d). Under these regulations, the circumstances tending to show unsuitability for release include the heinous nature of the commitment offense, including whether its motive was very trivial in relation to the offense; the inmate’s previous record of violence; and the inmate’s record of serious misconduct while incarcerated. The circumstances tending to show suitability for release include whether the inmate lacks a record of violent crimes; whether the inmate has performed acts indicating remorse for the commitment offense, or shows an understanding of the nature and magnitude of the offense; whether the inmate has made realistic plans postrelease or has developed marketable skills that can be put to use upon release; and whether activities during incarceration indicate an enhanced ability to function within the law upon release. (Cal. Code. Regs., tit. 15, § 2281, subds. (c) & (d).) “Because the parole decision represents a prospective view—essentially a prediction concerning the future—and reflects an uncertain conclusion, rarely (if ever) will the existence of a single isolated fact in the record, evaluated in a vacuum, suffice to support or refute that decision.” (In re Lawrence, supra, 44 Cal.4th at p. 1214.)
Factors set forth under the governing regulations that demonstrate an inmate's suitability for parole include: (1) lack of juvenile record; (2) stable social history; (3) signs of remorse; (4) motivation for the crime (e.g., whether the inmate committed the crime as the result of significant stress in his life); (5) experience of battered woman syndrome; (6) lack of criminal history; (7) present age; (8) plans for release; and (9) institutional behavior. (Cal. Code Regs., tit. 15, § 2402, subd. (d).) Factors demonstrating an inmate's unsuitability for parole include: (1) the nature of the commitment offense; (2) previous record of violence; (3) unstable social history; (4) commission of sadistic sexual offenses; (5) psychological factors (e.g., whether the inmate has a lengthy history of severe mental problems related to the offense); and (6) institutional behavior. (Cal. Code Regs., tit. 15, § 2402, subd. (c).)
The immutable factors upon which the Board based its decision are insufficient
The Board cited stale factors—the commitment offense and Robles’s earlier in-prison disciplinary history. But after many years, the “diminishing predictive value” of these factors for Robles’s future conduct renders them insufficient to show that petitioner continues to pose a serious public danger. For that reason, reliance on these factors, without identifying how they show a risk of current or future dangerousness, can violate the statutory and constitutional requirements of the parole-determination process. (In re Roderick (2007) 154 Cal.App.4th 242, 277; In re Scott (2005) 133 Cal.App.4th 573, 594–595 [reliance on immutable factor without regard to later circumstances may violate due process].) After a long period of positive rehabilitation these factors cannot alone support a determination that petitioner remains dangerous to public safety decades later. (In re Lawrence, supra, 44 Cal.4th at pp. 1191, 1211.)
The Board fails to identify any reason that this stale history outweighs Robles’s rehabilitative efforts for the years that followed. Its decision also fails to identify how these unchanging factors tend to show any serious likelihood that Robles might revert to the violent, substance-abuse lifestyle in which he was engaged at the time of the commitment offense in 1984; how his disciplinary reports—with the last in 1989 relate to his rehabilitation; or how these ancient factors show that Robles poses a current threat to public safety. (In re Lawrence, supra, 44 Cal.4th at p. 1191.) Without a nexus between these stale circumstances and the conclusions the Board draws from them, these factors do not constitute evidence sufficient to support the Board’s determination. (In re Lawrence, supra, 44 Cal.4th at pp. 1213–1214, 1228 [seriousness or aggravated nature of offense may justify determination years later that the inmate remains a threat to public safety only if, in addition to that factor, “the inmate has failed to make efforts toward rehabilitation, has continued to engage in criminal conduct postincarceration, or has shown a lack of insight or remorse”].)
As in In re Cerny (2009) 178 Cal.App.4th 1303, 1309, Robles’s commitment offense was connected to his substance abuse. The First District noted at page 1310: “Given the close nexus between Cerny’s history of drug abuse and the circumstances of his commitment offense, the substantial amount of intervening time during which there is no evidence that Cerny has committed any violent act or abused drugs, and his long-standing treatment for drug abuse, Cerny’s commitment offense no longer provides evidence that he is currently dangerous or that his release would unreasonably endanger the public.” The First District continued: “[A]ll of Cerny’s crimes were committed while he was already drinking alcohol, smoking marijuana and using heroin. Cerny has stopped using drugs and alcohol and is committed to remaining abstinent. Because so much time has elapsed since those crimes were committed, Cerny’s drug abuse is inseparable from his criminal history, and his criminal history discloses no history of escalating violence; his criminal history is simply too far removed both in time and behavioral attributes to constitute reliable evidence that Cerny is currently dangerous.” (Id. at p. 1311.)
Robles has continually participated in Alcoholics Anonymous since 1995 and Narcotics Anonymous since 2001. His past abuse of alcohol and drugs more than a quarter of a century in the past does not support the conclusion that he poses a current danger if released on parole.
The factors relating to Robles’s current mind set are also not sufficient
Insight
One of the factors the Board is required to consider in determining whether to grant parole is whether an inmate shows an understanding of “the nature and magnitude” of the commitment offense. (Cal. Code. Regs., tit. 15, § 2281, subd. (d).) The regulations identify this as a positive factor where it is found, weighing in favor of parole. However, the Supreme Court has said that the absence of this factor may also in some circumstances weigh against release on parole.
In In re Shaputis, supra, 44 Cal.4th 1241, the California Supreme Court held that an inmate’s minimization of his responsibility for years of violence against his family and lack of self-awareness of the violence he had inflicted, justified a determination, even after the passage of time, that the aggravated nature of the commitment offense continues to indicate that the petitioner remains dangerous. (Id. at p. 1260 & fn. 18; In re Smith (2009) 171 Cal.App.4th 1631, 1638.) “[W]here the record... contains evidence demonstrating that the inmate lacks insight into his or her commitment offense or previous acts of violence, ... the aggravated circumstances of the crime reliably may continue to predict current dangerousness even after many years of incarceration. [Citations].” (In re Lawrence, supra, 44 Cal.4th at p. 1228.) Thus a refusal to grant parole may be justified “when evidence in the record supports the conclusion that the circumstances of the crime continue to be predictive of current dangerousness despite an inmate’s discipline-free record during incarceration.” (In re Lawrence, supra, 44 Cal.4th at p. 1228; In re Smith, supra, 171 Cal.App.4th at p. 1639.)
More is required than recitation of that conclusion. It is not a finding that the inmate lacks some level of insight that itself constitutes a measure of an inmate’s suitability for release. Nor does the Board’s finding that an inmate lacks insight fully address the Board’s responsibility, which is to evaluate whether the inmate continues to present a serious risk of danger to the public. (In re Lawrence, supra, 44 Cal.4th at pp. 1227–1228.)
The Board emphasized that Robles ascribed his involvement in the offenses to “stupidity.” The Board construed the use of the word, “stupidity, ” as a reference to Robles’s intelligence, stating, “[m]any people lack mental abilities, but very few get involved in homicides.” Yet it is clear from the context of his statements at the hearing that Robles meant to indicate that he was a callow youth, easily swayed to commit violence by his fellow gang members.
The Board criticized Robles as having failed to come to terms with “the totality of events.” The record does not support this characterization. The prison psychologist concluded that Robles “explored the internal causes and factors that led to the commitment offense” and “did not avoid nor limit his answers” to the psychologist’s questions.
Having spent a quarter of a century in prison, Robles is no longer a callow youth. Having participated in numerous self-help programs, Robles has addressed the issues that led him to carry out the commitment offenses. Notably, the vocational landscaping supervisor who supervised Robles for 22 months before the hearing concluded that Robles “‘is ready for the outside world.’”
Remorse
As the Board noted, Robles did in fact express remorse, but the Board found fault with what he said, because “much of the remorse today was expressed about you as the victim.” We note, however, that “[e]xpressions of insight and remorse will vary from inmate to inmate and there are no special words for an inmate to articulate in order to communicate he or she has committed to ending a previous pattern of violent or antisocial behavior.” (In re Twinn (2010) 190 Cal.App.4th 447, 465, citing In re Shaputis, supra, 44 Cal.4th 1260, fn. 18.) Perhaps expecting to hear “special words for an inmate to articulate, ” the Board interpreted Robles’s references to himself as expressions of victimhood, rather than true indications of remorse. Robles intertwined his words of remorse with an account of his personal growth, stating, for example: “since that horrific day, it has taken me a lot of growing up to truly realize the impact my actions had on so many people who were directly and indirectly connected to this unfortunate incident” and “I have a sincere obligation to myself to become a better person.” He clearly describes himself not as a victim but as a perpetrator who has had decades to reflect on his deplorable acts and has worked hard to change. His references to himself convey no self-involvement or self pity, but, instead, show that he has accepted full responsibility for his actions. (In re Juarez (2010) 182 Cal.App.4th 1316, 1338.) His acceptance of responsibility demonstrates his remorse. (In re Powell (2010) 188 Cal.App.4th 1530, 1540 [“Acceptance of responsibility... [is] closely related to showing signs of remorse, one of the factors tending to show suitability for parole.”].) Thus, we find that the Board did not articulate a rational nexus between Robles’s explanation of his moral and mental growth and possible current dangerousness. Further, we fail to see such a connection.
DISPOSITION
The petition for a writ of habeas corpus is granted, and the decision of the Board of Parole Hearings is hereby vacated. The Board of Parole Hearings is directed to conduct a new parole-suitability hearing in accordance with due process of law as set forth in In re Prather (2010) 50 Cal.4th 238.
We concur: MALLANO, P. J., CHANEY, J.