Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of habeas corpus to challenge an order of the Superior Court of Orange County, Nos. M-12122; C-92788, Thomas James Borris, Judge.
Filia Uipi, in pro. per.; and Richard Pfeiffer, under appointment by the Court of Appeal, for Petitioner.
Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Assistant Attorney General, Jennifer A. Neill and Charles Chung, Deputy Attorneys General, for Respondent.
OPINION
ARONSON, J.
Seeking habeas corpus relief, Filia Uipi challenges the decision of the Board of Parole Hearings (the Board or BPH) declining, at a hearing in 2007, to set a parole release date for him. A jury convicted petitioner of second degree murder in 1992 for his role in a revenge slaying following an altercation at a convenience store. (Pen. Code, § 187, subd. (a); all further statutory references are to the Penal Code unless specified otherwise.) The Board praised petitioner’s impressive rehabilitation efforts while incarcerated, but expressed concern that, though he took responsibility for the crime generally, his comments at the hearing demonstrated a lack of insight that posed a safety risk if he were released at that time. The Board observed it was “frankly, somewhat incredible” that petitioner still cast himself as unaware of the danger he precipitated, minimizing his retaliatory motive by claiming he “really didn’t know what was going to happen....”
Specifically, after the fight at the convenience store in which his adversaries fired multiple gun shots, petitioner encouraged his accomplice to retrieve an assault rifle from the accomplice’s nearby home, drove back to the convenience store with the accomplice, and exhibited no concern for his own safety when he heard a shot fired after his accomplice stepped out of the car, suggesting he knew his coperpetrator planned to assault the victims. Petitioner’s failure to recognize his own retaliatory motive and actions as a substantial causative factor in the slaying supports the Board’s conclusion his lack of insight posed a current threat to public safety. (In re Lawrence (2008) 44 Cal.4th 1181, 1209 (Lawrence).) Simply put, defendant’s inability to discern the unmistakable danger in his choices had been fatal once and, until he fully grasped his role in prompting retaliation, would continue to concern the Board. Because “some evidence” supports the Board’s conclusion (Ibid.), we deny the petition for a habeas writ to overturn the Board’s denial of parole at this time.
I FACTUAL AND PROCEDURAL BACKGROUND
As noted, petitioner’s offense arose out of a fight at a convenience store. There were two fights. First, the store clerk observed petitioner and his accomplice, Vika Pe’a, striking two or three Latino customers once those customers left the store after purchasing beer. The customers departed. Three or four other Latino men, who were apparently underage, arrived in a different car. The clerk observed they dressed like gang members. After Pe’a bought those men beer and cigarettes, they departed. Pe’a and petitioner remained.
Another group of men arrived in a Chevrolet Caprice. One of them, Fabian Medrano, entered the store and bought a 12-pack of beer. The clerk warned him about “the Hawaiians” outside the store, i.e., petitioner and Pe’a, who are actually Samoan. Medrano, who appeared to be intoxicated, replied, “‘They are not going to give us any shit[.] I have a gun.’” The clerk observed some of Medrano’s compatriots struggling with Pe’a and petitioner and, after Medrano left the store, he heard three or four gunshots and saw Medrano holding what appeared to be a nine-millimeter gun. At some point in the altercation, the clerk observed Pe’a making a striking gesture toward the driver’s side window of the Caprice. Medrano left with his cohort in the Caprice.
The clerk heard petitioner say something like, “‘Let’s go for a gun.’” The clerk was unsure of petitioner’s exact words, which may have been, “‘Let’s go to the house’” and “‘bring a gun.’” Pe’a and petitioner departed in a black Nissan.
About five minutes after Pe’a and petitioner left, Medrano and another man returned to the convenience store in the Caprice. One displayed a gun outside the car window, pointing it upwards and asking, “‘Where are they now?’” The clerk pointed to the approaching Nissan, which parked near the gas pumps, facing the opposite direction of the Caprice. The clerk watched Pe’a exit the passenger side of the Nissan with an assault rifle; the driver remained in the Nissan. Pe’a fired one shot towards the Caprice as it was moving. The Caprice continued rolling until it stopped against a wall across the street. The passenger exited and fled. Investigators found Medrano dead in the driver’s seat of the Caprice. An autopsy revealed he had been killed by a.45-caliber bullet, which entered the middle of the back of his head and exited in the right temple area. The police found a pellet gun on the floor of the Caprice. The officers apprehended Pe’a and petitioner later that night.
At petitioner’s parole hearing in 2007, his third, he did not deny any of the foregoing events, as they were recited by a Board commissioner who read from the appellate opinion affirming petitioner’s conviction. At his most recent psychological exam, in 2004, however, petitioner had told the evaluator “he was not aware that his co-defendant was armed or had even fired a shot....” Concluding petitioner had “developed good insight into his offense and accepts responsibility for his crime,” the evaluator opined in his 2004 report that petitioner presented a low risk of future violence.
Petitioner admitted in the 2007 parole hearing that, contrary to what he had told the psychologist and contrary to Pe’a’s testimony at trial, he knew Pe’a had a gun. He had first learned Pe’a owned the weapon when Pe’a displayed it to him at Pe’a’s home, days before the shooting. The gun, an assault rifle, was a “semi-automatic machine gun looking weapon.”
Though he admitted knowing Pe’a brought the assault rifle with him back to the convenience store, petitioner emphasized “that was not mine.” He also knew Pe’a had the gun with him when he exited petitioner’s car upon their return, but emphasized, “I never left the vehicle. I remained in the vehicle.” Petitioner admitted he heard a gunshot after Pe’a exited, but claimed he did not react, which the Board found telling, noting, “You’ve just been fired at [awhile] before with a gun,... now you hear a gun shot again and you don’t look to see what’s happening?” A commissioner explained, “The gun goes off. After having [earlier] been fired upon, you sit in your car and you sit there and you don’t look and see? A... reasonable person would think who, maybe they’re coming after me again or whatever.” Noting he had been drinking earlier in the evening, petitioner blamed his intoxication for his lack of a reaction: “I was intoxicated. And that played, that played a big role in that.”
When petitioner pointed at Pe’a, noting he “got the gun, as he said, he wanted to go back and use it for protection...,” the Board expressed concern, observing, “You know what that sounds like? You’re going back to a gun fight to use it for protection?” Petitioner explained that, for his part, “I wanted to go back. I wanted to go back and let those guys and stuff that, you know, hey, you really, you know, you really scared me, you know. And I want you to feel the same, you know.” As to Pe’a, petitioner stated: “I didn’t know what his intentions were. I didn’t think he was going to shoot. I thought he was going to scare him but I honestly don’t know if those were his intentions to shoot, to shoot the victim. I honestly don’t know.”
The Board complimented petitioner on his virtually infraction-free incarceration record, which included a single dress code violation in 2002. Petitioner attributed his performance to his upbringing by his parents, recognizing, “I chose not to listen then but that’s what I’m doing now.” The Board also noted petitioner’s participation as a leader in Alcoholics Anonymous, his high performance and consistent participation in vocational and other training and self-improvement programs, his continuous work history, and his remarkable progress from near illiteracy to an advanced reading level. The Board praised petitioner for these achievements, observing it was particularly “impressive that you actually opted to forego your pay status with the prison system in order to do programming that you needed to do....” The Board also found petitioner had ample family and community support and that he had developed a thoughtful, viable post-incarceration living plan if he were released, which included realistic employment and housing opportunities.
The Board, however, remained concerned that petitioner minimized his role in “an execution style killing.” For example, petitioner blamed Pe’a or his own intoxication and noted the gun was not his and he remained in the car, as if these details divorced him from Pe’a’s actions. In particular, while petitioner took responsibility generally for the crime and acknowledged “none of that... would have happened had we not come back,” the Board remained troubled at petitioner’s explanation he did not recognize the danger Pe’a posed. The Board discerned in petitioner’s description of his own role, including that he did not see the actual shooting and his claim he did not know Pe’a’s exact intentions, a failure to fully grasp, and accept responsibility for, the danger he helped create.
The Board also had doubts about the credibility of petitioner’s claim he did not know Pe’a’s intentions, given that he failed to react defensively to the gunshot he heard and “your failure to investigate that and then your actions afterwards where basically, you just left the scene.” The Board observed, “It, it is frankly, somewhat incredible that you would claim that you really didn’t know what was going to happen, that you were going to go back there and scare him. Sir, a.45[-]caliber assault rifle isn’t machinery to scare people and if you thought that..., you have to review what you really thought....”
The deputy district attorney recommended the Board deny parole, arguing petitioner only recently admitted he knew Pe’a was armed, after denying this fact in his latest psychological exam. The deputy emphasized “one of the things that he doesn’t really address today” was that “it was his idea. He’s the guy who’s saying let’s go get that gun. Let’s go back to your house, the gang member I’ve only known for a week... and let’s go get it. This is a simple retribution payback hit....”
In denying parole at the present time, the Board praised petitioner, “You’ve made great progress,” but concluded “we need to have you develop further insight....” The Board advised petitioner “to really listen to yourself, listen to what your testimony was today. When you get the transcript, read it over in depth and think about what your mind set was at that time and then we hope that you’ll derive [greater] understanding of what was going on with you as regards [to] your intent because responsibility isn’t just saying yeah, I did it after the fact....”
II DISCUSSION
Challenging the Board’s reliance on his role in the commitment offense, petitioner contends no evidence supports the Board’s conclusion he is presently unsuitable for parole based on a lack of insight. Section 3041, subdivision (b), provides the Board must deny parole if “the gravity of the current convicted offense or offenses... is such that consideration of the public safety requires a more lengthy period of incarceration for this individual....” But as the Supreme Court has explained recently, “the aggravated nature of the crime does not in and of itself provide some evidence of the current dangerousness to the public unless the record also establishes that something in the prisoner’s pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner’s dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.” (Lawrence, 44 Cal.4th at p. 1214.) Our review of the Board’s determination is “highly deferential” (Id. at p. 1204), but this standard “‘does not convert a court reviewing the denial of parole into a potted plant’” (Id. at p. 1212). A “modicum” or “some” evidence (In re Rosenkrantz (2002) 29 Cal.4th 616, 652, 677) must support the Board’s conclusion the “inmate’s release will unreasonably endanger public safety” (Lawrence, at pp. 1204, 1209 [court must uphold Board’s decision if “any” evidence supports it]).
Petitioner contends the Board’s finding he lacked adequate insight is unfounded because “[t]he last psychological evaluation by the BPH’s own professionals that found [petitioner] to lack insight was rendered fourteen years ago.” Petitioner had demonstrated laudable progress since that evaluation in 1995, but the Board could reasonably discount petitioner’s recent favorable psychological assessments, including the statement in the latest report that he had “good insight,” because petitioner did not reveal to the evaluators he knew Pe’a had a gun and denied he knew Pe’a had fired his weapon. These omissions do not demonstrate insight.
Lack of insight is probative of an inmate’s current risk to public safety. (In re Shaputis (2008) 44 Cal.4th 1241, 1260; see also Lawrence, supra, 44 Cal.4th at p. 1228 [“In some cases, such as those in which the inmate... has shown a lack of insight or remorse, the aggravated circumstances of the commitment offense may well continue to provide ‘some evidence’ of current dangerousness even decades after commission of the offense”].) Downplaying one’s role in the offense reflects a lack of insight and therefore may pose a continuing risk to public safety. (Shaputis, at p. 1260; In re Lazor (2009) 172 Cal.App.4th 1185, 1201-1202; In re Smith (2009) 171 Cal.App.4th 1631.) Here, petitioner appeared to be on the verge of demonstrating the requisite insight into the danger inherent in his retaliatory actions, acknowledging “none of that... would have happened had we not come back” and that “I wanted to go back and let those guys and stuff that, you know, hey, you really, you know, you really scared me, you know. And I wanted you to feel the same, you know.”
But given that petitioner encouraged Pe’a to retrieve his assault rifle and drove him back to the scene, the Board could reasonably conclude petitioner’s continued attempts at the hearing to downplay his own role reflected an inability to fully grasp how his retaliatory motive set the stage for the slaying. Petitioner stated he accepted responsibility for the crime, but the Board could reasonably remain concerned he continually claimed he did not know of Pe’a’s retaliatory intent, as if that absolved him of his role in the danger Pe’a posed. The Board wanted assurance that petitioner recognized his own retaliatory motive, coupled with the concrete actions he admitted he took to fulfill it, created a high risk of danger to human life. His inability at the time of the hearing to demonstrate the requisite insight into the danger posed by his retaliatory actions supported the Board’s conclusion his release would pose a threat to public safety. Because the requisite modicum of evidence supports the Board’s conclusion, we deny the petition for a habeas writ to overturn the Board’s denial of parole at this time.
III DISPOSITION
The petition is denied.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.