In re Garcia

Filed 11/28/07 In re Garcia CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County, Steven R. Van Sicklen, Judge. Affirmed.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Charles Chung, Deputy Attorney General, for Plaintiff and Appellant.

Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Respondent.

_________________

INTRODUCTION

Defendant Catalino Garcia is a California inmate serving an indeterminate life sentence. After the Board of Parole Hearings (Board) denied him parole for the sixth time, defendant petitioned the superior court for a writ of habeas corpus. The court granted defendants petition and ordered the Board to reconsider its decision and conduct a new parole eligibility hearing. This appeal by the warden of Chuckawalla Valley State Prison followed. We affirm.

FACTS

I. Underlying Offense and Conviction

On November 7, 1983, at the age of 20, defendant killed Mario Garcia (Mario) as a result of an ongoing feud between their families that started in Mexico. Twelve to fifteen years earlier, Mario had killed defendants father and might have been responsible for the deaths of defendants brother and brother-in-law. In the years that followed, there were no further killings, but the families continued to exchange pot shots.

Mario came to California seven months before his death to avoid the ongoing feud in Mexico and took up residence in Pacoima. Defendant, who had been coming to the United States for eight years to work as a seasonal farm laborer, was living in Santa Ana but previously had lived in Pacoima. When defendant learned that Mario was living in Pacoima, he took a bus to that city and located Mario. Mario recognized defendant and ran. Defendant pursued Mario and shot him in the back numerous times, killing him.

On November 15, 1984, defendant was convicted of second degree murder committed with the personal use of a firearm (Pen. Code,  187, 12022.5), and he was sentenced to state prison for 15 years to life, plus two years. The Department of Corrections received defendant on November 30, 1984. His minimum parole date was November 17, 1993.

II. Parole Eligibility Hearing

On November 29, 2005, a three-member panel of the Board held a parole eligibility hearing (defendants sixth) to determine if defendant should be paroled. At that hearing, the following pertinent information came to light:

A. Defendants Background

Defendant is the oldest of 11 children. He has four brothers and six sisters. All siblings live in Mexico, with the exception of one sister who lives in the United States. Defendants parents are deceased. While in prison, defendant received continuing phone calls and correspondence from all of his siblings. During the five years preceding his 2005 parole eligibility hearing, defendant had approximately 25 visits.

Defendant, who has remained married since 1969, first came to the United States by himself in 1975. His first and eldest child was killed tragically during a bus trip to Mexico by an armed gunman who entered the bus. Defendant has five other children who were born in 1970, 1974, 1976, 1982 and 1991.

Defendant denied any history of alcohol or drug abuse. Defendant had no known juvenile record and, other than the crime for which he was imprisoned, had no other adult convictions.

B. Defendants Progress in Prison

Since defendants prior parole eligibility hearing in 2004, he had no discipline problems whatsoever. Defendant did not have any CDC Form 115 rule violations, and while he had previously received several CDC Form 128 rule violations,[1]the last one was received in February 2000.

While in prison, defendant completed a 13-week anger management program and received a positive chrono or evaluation for completing 26 hours of an alternative to violence program. He also participated in Alcoholics Anonymous and Narcotics Anonymous despite any evidence of a substance abuse problem while incarcerated. He received a five-year certificate of participation for being part of Alcoholics Anonymous, as well as a certificate of completion for a self-confrontation class.

Defendant received four positive chronos since 1987. The last one was received in 2002 for being a courteous and friendly worker.

Defendant participated in school, primarily taking English as a second language classes. Defendant completed a reading horizon phonics program. Defendant also earned a certificate of completion for vocational upholstery and was presently working as a barber.

C. Psychological ReportRisk to Community

A psychological report dated January 6, 2005, contained no diagnoses under Axis I or Axis II. Under Axis III, defendant was reported to suffer from lower back pain, and under Axis IV suffered from stress due to being incarcerated. The report gave defendant a very positive functioning score of 90.

As to whether defendant was considered a threat to the community, the doctor listed the following as low risk factors: no prior juvenile or adult record, no prior felony or misdemeanor convictions, no history of drug or alcohol abuse. It was further noted that since being in prison, defendant had no record of aggression or violence. He had adapted positively to prison life and had maintained a long presence in Alcoholics Anonymous and Narcotics Anonymous.

The only high risk factor noted in the psychological report pertained to the commission of the offense for which defendant was incarcerated. It was observed that [w]ithin a community setting it is felt that he is at slightly reduced risk when compared to the average citizen to be involved in violence.

D. Defendants Insight Into his Crime and the End of the Feud

At the time of the hearing, defendant had been incarcerated for 22 years. Defendant acknowledged that he had committed a tremendous error and had changed his way of thinking. During the years he spent in prison, defendant came to realize that no one has the right to harm another person or to take the life of another person.

Since defendants crime, there had been no further conflict between his family and Marios family. Stated otherwise, the feud between the families ended with Marios murder. Defendant explained that everything was peaceful between the families. Defendant denied that he would shoot anyone. He stated he was a farm worker who liked to work to support his family. He acknowledged that upon his return to Mexico he would not return to the United States. Defendant was sure they will not harm me.

E. Defendants Parole Plans

If paroled, defendant intended to return to Mexico with his wife and youngest child, who would provide him support. In Mexico, he also would have the support of his siblings who await his return. Defendant, who owns farmland in Mexico, plans to resume farming and live on the proceeds he receives from the sale of the produce he would harvest.

F. Letters in Support of and in Opposition to Parole

The Los Angeles Police Department and the Los Angeles District Attorneys Office opposed defendants release. The Board received letters of support for defendants release from family members. A letter written by one of defendants sisters conveyed that all of his siblings wanted to see defendant paroled.

III. The Boards Decision

Presiding Commissioner George Saldamando, speaking on behalf of the panel presiding over Garcias parole hearing, concluded that Garcia was not suitable for parole and would pose an unreasonable risk and danger to society or a threat to public safety if released from prison. The panel found that the offense was carried out in an exceptionally cruel and callous manner and in a dispassionate and calculated manner, noting it had been carried out execution style. The panel also observed that Garcia had failed to upgrade in the education field and lacks realistic parole plans in that he does not have an acceptable employment plan. Although noting that Garcia stated he planned to be a farmer in Mexico, he has not shown any signs of support to get him there if he was to be released. The hearing panel found that it is not reasonable to expect that parole would be granted in a hearing for the next one-year. The panel recommended that Garcia remain disciplinary free, and if available upgrade his education and his vocational skills and continue in his self-help programs.

IV. Writ Petition

On January 27, 2006, defendant filed a petition for writ of habeas corpus in the superior court. Defendant alleged that the Board improperly relied upon his commitment offense to deny parole, that the Boards decision was not supported by some evidence and that the Board violated his due process right to parole.

On June 13, 2006, the trial court ordered the warden of Chuckawalla Valley State Prison to show cause why defendants petition should not be granted and to file a return. The warden filed his return on July 18, 2006, urging the court to deny defendants petition. Defendant filed a denial in response to the wardens return on August 8, 2006.

V. The Trial Court Grants the Requested Writ Relief

On November 3, 2006, the trial court granted defendants writ petition after finding that the Boards decision to deny defendant parole was not supported by some evidence. The court questioned the usefulness of the commitment offense to assess the likelihood that defendant would commit future offenses. The court emphasized Garcias institutional behavior and concluded that there was no evidence suggesting that defendant was likely to commit another crime or would pose an unreasonable risk to public safety. The court also found no evidence that defendant failed to upgrade educationally or had unrealistic parole plans, in that he planned to return to Mexico with his wife and children.

Specifically, the court stated: On November 29, 2005, the Board denied petitioner parole for one year. In denying petitioner parole, the Board relied upon the circumstances of the commitment offense. In determining unsuitability based on the circumstances of the commitment offense, the Board found that the offense was committed in a dispassionate and calculated manner, such as an execution-style murder and that the offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. (See Cal. Code Regs., tit. 15,  2402, subd. (c)(1)(B).)

In addition, the Board further stated in its decision that petitioner failed to upgrade educationally and that petitioner did not have realistic parole plans as he did not possess an acceptable employment plan, nor had he presented any signs of support for his plans to return to Mexico. However, all indications in the record point to the fact that petitioner not only has full support from his wife and adult children and from siblings who reside in Mexico, but also upon presumed deportation upon release to Mexico, he plans to return to farming, his livelihood prior to incarceration. Therefore, there is not some evidence in the record to support that petitioner has not made adequate parole plans. Further, the Board established no connection between petitioners educational level or inability to speak English and the Boards conclusion that he would pose an unreasonable risk of danger to society or threat to public safety if released from prison. Regardless, petitioner meets the requirement of the regulations because he has also developed marketable skills in upholstery and barbering that could be put to use upon release. (See Cal. Code Regs., tit. 15,  2402, subd. (d)(8).)

Regarding the Boards reliance on the circumstances of the crime, the Court finds that after 22 years have passed since petitioners crime, the usefulness of the crime in predicting the likelihood of future offenses diminishes. (In re Scott (2005) 133 Cal.App.4th 573, 595.) Furthermore, the true test is not whether some evidence supports the reasons the [Board] cites for denying parole, but whether some evidence indicates a parolees release unreasonably endangers public safety. (In re Lee[ (2006) 143 Cal.App.4th 1400, 1408, italics omitted].) In fact, the evidence before the Board shows quite the contrary. Petitioners record indicates that petitioner has no serious or violent disciplinary violations and has no criminal history before the crime against the victim. He has improved himself by taking ESL classes, participated in five years of Alcoholics Anonymous and Narcotics Anonymous and received several positive reports for completing 26 hours of alternative to violence program and other self-help classes. Petitioners psychological evaluation dated January 6, 2005, assessed petitioner to be a very low risk of posing a danger to society and said he was at slightly reduced risk as compared to the average citizen to be involved in violence. Based on the . . . lack of evidentiary support for the Boards findings that he failed to upgrade educationally and did not have realistic parole plans and the above-listed evidence, the Court finds no evidence that petitioner is likely to commit another crime or that his release would unreasonably endanger the public.

Therefore, this court orders that the petition for writ of habeas corpus be, and hereby is, granted. The Court remands the order to the Board to reconsider its decision and to conduct a new hearing to reconsider defendants suitability for parole using, without restriction, the factors deemed appropriate by the relevant statutes and regulations and in accordance with the requirements of due process.

CONTENTION

Appellant contends the trial court erred in granting defendants petition for writ of habeas corpus, in that the Board gave individualized consideration to the appropriate parole suitability factors and issued a decision that is supported by some evidence. We disagree.

DISCUSSION

Parole Criteria

When determining whether to grant parole, the Board is authorized to consider the gravity of the commitment offense. Subdivision (b) of Penal Code section 3041 in pertinent part provides: The panel or the board, sitting en banc, shall 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. (Accord, In re Scott (2004) 119 Cal.App.4th 871, 885.)

The criteria to be considered when determining if an inmate is suitable for parole is set forth in section 2402 of Title 15 of the California Code of Regulations. The circumstances tending to show unsuitability are set forth in subdivision (c) of section 2402; the circumstances tending to show suitability are set forth in subdivision (d) of section 2402. The factor statutorily required to be considered, and the overarching consideration, is public safety. (In re Scott, supra, 133 Cal.App.4th at p. 591.)

Standard of Review

In conducting our review, we independently review the record, applying the deferential some evidence standard. (In re Rosenkrantz (2002) 29 Cal.4th 616, 658; In re Scott, supra, 119 Cal.App.4th at p. 884.) In applying the some evidence standard, we are precluded from independently resolving conflicts in the evidence, determining the weight to be given the evidence, or deciding the manner in which the specified factors relevant to parole suitability are to be considered and balanced, because these are matters exclusively within the discretion of the Board. Indeed, [i]t 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. [Citation.] [Citation.] Only a modicum of evidence is required to satisfy the some evidence standard. [Citation.] However, that evidence must have some indicia of reliability [citation] and suitability determinations must have some rational basis in fact. [Citation.] (In re Barker (2007) 151 Cal.App.4th 346, 365-366.)

As further explained in In re Barker, supra, 161 Cal.App.4th 346 at page 366, As our Supreme Court has summarized it, the judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law, but . . . in conducting such a review, the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation. If the decisions consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoners petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law. ([In re] Rosenkrantz, supra, 29 Cal.4th at p. 658 . . . .) [] Finally, as has been recently stated, because the overarching consideration is public safety, the test in reviewing the Boards decision denying parole is not whether some evidence supports the reasons [the Board] cites for denying parole, but whether some evidence indicates a parolees release unreasonably endangers public safety. [Citations.] Some evidence of the existence of a particular factor does not necessarily equate to some evidence the parolees release unreasonably endangers public safety. [Citation.]

Some Evidence Does Not Support the Boards Ruling

At the outset, we reject appellants assertion that the trial court engaged in an improper reweighing of the evidence. In our view, the trial court reviewed the record and correctly determined that some evidence did not support the Boards finding that defendant posed an unreasonable risk of danger to society thereby precluding his parole.

Also lacking in some evidentiary support is the Boards finding that defendant lacked realistic parole plans because he did not have an acceptable employment plan. As the trial court aptly observed, defendant, who had been a farmer prior to his incarceration, planned to return to Mexico and resume farming on land he owned. He had the support of his siblings in Mexico and of his wife who would return to Mexico with him. Defendant also obtained a certificate of completion for vocational upholstery and worked as a barber in the prison. Defendant could rely upon these additional vocational skills to support himself and his family upon his return to Mexico. The Boards concern regarding defendants ability to return to Mexico is completely unfounded, in that defendant had the support of both his wife and his siblings.

As for the Boards finding that defendant failed to upgrade in the education field, the trial court correctly observed that the Board established no connection between [defendants] educational level or inability to speak English and the Boards conclusion that he would pose an unreasonable risk of danger to society or threat to public safety if released from prison. In any event, as previously noted, defendant had acquired marketable skills in prison that could be put to use upon his release from prison. (See Cal. Code Regs., tit. 15,  2402, subd. (d)(8).)

Finally, there is no evidence supporting the Boards finding that defendant posed an unreasonable risk of danger to society or to the public safety as a result of his commitment offense committed more than 22 years earlier. As the trial court found, the usefulness of the crime in predicting future offenses has diminished due to the passage of a substantial amount of time. In fact, the feud which fueled defendants criminal act has long since ended, and defendant has come to understand that he had committed a tremendous error and that no person had the right to harm or take the life of another person. During his years in prison, defendant participated in and completed many self-help programs. He committed no serious or violent disciplinary violations while in prison. He had no history of substance abuse, and he adapted positively to prison life. He attended English language classes and learned vocational skills. Apart from the murder of Mario, defendant had no other juvenile or adult criminal history. Defendant had no record of aggression or violence while in prison. The psychologist assessed defendant to be a low risk of posing a danger to society and noted that within a community setting defendant was at slightly reduced risk when compared to the average citizen to be involved in violence.

We therefore conclude, as did the trial court, that some evidence does not support the Boards determination that defendant posed an unreasonable risk and danger to society or a threat to public safety if released from prison.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

MALLANO, Acting P. J.

VOGEL, J.

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[1] A 115 refers to a major instance of misconduct, which is reported on a CDC Form 115 (Cal. Code Regs., tit. 15,  3312, subd. (a)(3)). A 128 refers to counseling chronos which document minor misconduct only (Cal. Code Regs., tit. 15,  3312, subd. (a)(2)). (See In re Smith (2003) 109 Cal.App.4th 489, 505.)

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.