In re Diaz







Filed 9/22/11 In re Diaz 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re VICTOR DIAZ on Habeas Corpus.

B230015 (Los Angeles County Super. Ct. No. BH006685)

APPEAL from an order of the Superior Court of Los Angeles County. Peter P. Espinoza, Judge. Affirmed.
________
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Phillip Lindsay and Christina M. Tapia, Deputy Attorneys General, for Appellant Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation.
Katera E. Rutledge, under appointment by the Court of Appeal, for Respondent Victor Diaz.
________

Matthew Cate, Secretary of the Department of Corrections and Rehabilitation, appeals from the trial court’s order granting Victor Diaz’s petition for writ of habeas corpus following then Governor Arnold Schwarzenegger’s reversal of the decision of the Board of Parole Hearings (Board) to grant Diaz parole. We agree with the trial court that some evidence does not support the Governor’s conclusion that Diaz constitutes a current threat to public safety and thus affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Diaz’s Background and the Commitment Offense
Diaz, now 69 years old, was raised by his mother in El Paso, Texas after his father abandoned the family when he was a young boy. He came to Los Angeles as a teenager with his mother, who remarried and had two daughters with her second husband. Diaz had a good relationship with his stepfather and half-sisters. He graduated from high school in 1960 and got married, having three children before divorcing in 1971. He has a fourth child from another relationship. He maintained regular employment, starting out as a paperboy in his youth and ending up working as a transit bus driver for 12 years from 1973 to 1985, ultimately serving as president of the union.
In the early 1980’s, Diaz began using cocaine after having engaged in only minor recreational drug usage during his teenage years. He also remarried and was with his second wife from 1983 to 1985, although Diaz believes they still are legally married. In 1985, while on leave from his bus driver employment due to a workers’ compensation claim, he began selling cocaine. He resigned from the union, became a heavy cocaine user and sold the drug as his trade. In 1989, Diaz met Theodore and Sharon Snyder, who were married. He sold cocaine to them and began an affair with Sharon.^[1] Sharon told Diaz that Theodore, who was involved in the pornography industry and with a mafia group, had abused her and forced her to appear in pornographic photographs. Sharon offered Diaz $20,000 to kill Theodore. Diaz asked Billy Fischer, a known gun dealer, to commit the crime, but Fischer refused. Diaz then thought that he would kill Theodore, but changed his mind. Sharon informed Diaz that Theodore had threatened to have Diaz killed.
On the night of August 1, 1989, Diaz, who at the time was using cocaine heavily and had “feelings of paranoia,” obtained an altered submachine gun from Fischer under the guise that he had prospective buyers for the gun. Later that night, Diaz lured Theodore to a remote area, promising to sell him a large quantity of cocaine. As Theodore approached Diaz’s vehicle, Diaz shot him at close range. When the magazine slipped from the gun, Diaz inserted a second magazine and shot again. While Theodore was on the ground, Diaz fired the gun and drove away. Theodore, having been shot eight times, was found in the street. Sharon gave Diaz a $10,000 bill for killing Theodore and, after living with Diaz for a couple of months, left the state.
When Diaz returned the weapon, Fischer noticed that it had been fired, and Diaz admitted using the gun to kill Theodore. Through an unrelated search involving Fischer, the police recovered the gun, and Fischer relayed Diaz’s story to them. When Diaz attempted to cash the $10,000 bill, the bank notified investigators. Diaz ultimately sold the bill to an acquaintance for $9,000. After officers detained and arrested Diaz on January 19, 1990, they recovered a shell casing from his car matching those recovered from the murder scene.
Diaz was charged with first degree murder, conspiracy to commit a crime and possession of a machine gun, along with the special circumstances of soliciting murder and murder for hire. He pleaded no contest to second degree murder, admitted using a firearm to commit the offense and agreed to testify in the case against Sharon. He received a state prison sentence of 15 years to life for the murder, plus two consecutive years for his firearm use. Although Diaz testified against Sharon, the jury acquitted her of all charges related to Theodore’s murder. According to Diaz, when he thought about Sharon’s acquittal, which he did at the beginning of his incarceration, “the only thing [he] could think of was she’s sitting there in street clothes, and [he’s] sitting there in counties, orange, it was a jumper, and unshaven, overweight, looking terrible, like [he’s] going to the curb, and [he] thought, well, that must have a lot to do with it, you know, how could this guy be involved with her.”
2. The Board’s Grant of Parole
On July 8, 2009, when Diaz, then 67 years old, was suffering from high blood pressure, high cholesterol, sleep apnea, arthritis, obesity and degenerative disc disease and had served the equivalent of more than 20 years in prison and twice been denied parole, a panel of the Board held a third parole suitability hearing and granted parole. At that hearing, the panel described the circumstances of Diaz’s commitment offense, including Diaz’s use of cocaine and his murder of Theodore. Diaz expressed remorse for the killing, saying that he “stole a lot from [Theodore’s] children” and hurt his mother and the rest of his family. He acknowledged that when he began to sell and use cocaine, he built his life on materialism and while in prison, realized that family, not material items, were the importance of life.
In all his time in prison, Diaz received one CDC-115 violation more than 10 years earlier, in November 1996, for not standing for count and only four counseling chronos, between June 1992 and August 2001. Since receiving a two-year denial of parole in 2007, Diaz achieved numerous above average to exceptional work progress reports and several above average to exceptional work supervisor reports. Diaz continued his involvement in Narcotics Anonymous (since July 1999) and the Yokefellows Program (since April 1995), participated in the Alternative to Violence Project and was “a dedicated tutor” in the Literacy Program. Recognizing that he could not fully make amends for taking Theodore’s life, Diaz participated in victims’ charities, such as Prisoners Against Child Abuse, and contributed money to various charities. He completed various vocational and technical instruction programs.
The panel recognized Diaz’s positive family relationships, including with his mother, eldest daughter, several cousins and two friends from his days as a bus driver. It also noted his long-term employment as a bus driver and his union leadership, which ended only when Diaz’s involvement with cocaine escalated in 1985.
Regarding parole plans, Diaz had offers to live with his eldest daughter, his mother and several cousins. His first choice was to live with his daughter in Bodfish, and he had the possibility of a job with the Piute Pump Company nearby, as well as the entitlement to social security. The pastor of his daughter’s church indicated that he and the congregation would support Diaz in the community. Diaz’s mother was “willing and ready to help” him. And he planned to continue his involvement in a 12-step program.
The panel also reviewed Diaz’s prior criminal history, which includes a 1968 conviction for disturbing the peace based on Diaz’s urinating in public; a 1972 conviction for disturbing the peace and battery (which Diaz said occurred because he was trying to prevent his friend from driving while drunk); and two arrests in 1987 and 1989 for possession of a controlled substance.
Diaz’s mental health evaluation, performed on April 1, 2009, indicated that Diaz did not have a mood or thought disorder or a mental illness and recognized that his cocaine dependence was in full remission in a controlled environment. He also “did not show signs of lack of remorse.” According to the psychologist, “[i]n the ‘clinical’ or more current and dynamic domain of risk assessment, Mr. Diaz did not express overt criminally-minded thinking during the interview even though his history suggests that he has led a criminally-minded lifestyle in the past. He did not present with active symptoms of a mental illness and he was assessed to be less impulsive currently than he was at the time of the crime. He has been responsive to treatment . . . [by] participat[ing] in vocational training, work assignments and self-help programming. Mr. Diaz seems to have developed good insight into the crime and the factors leading to its commission.”
Based on three assessment guides, the psychologist concluded that Diaz presented overall as a low-moderate violence potential in the free community, although two prior reports from 2000 and 2005 “estimated that his risk for future violence was in the low range” based on the same assessment guides. The psychologist recognized that the scoring related to “lifetime history rather than being . . . based on his current presentation alone.” In other words, based on historical attributes, including Diaz’s involvement with using and selling drugs and the lifestyle that accompanied it, the psychologist “noted that the bulk of data from the historical domain . . . is, by definition, not amenable to significant change regardless of the number of years of his incarceration or the amount of participation in self-help programming. Based on the data obtained from the historical domain alone, Mr. Diaz is unlikely to ever fall below the low-moderate range . . . .” Also, considering Diaz’s former involvement with drugs and the accompanying lifestyle, the psychologist diagnosed Diaz with a personality disorder not otherwise specified based on “narcissistic and antisocial features . . . .” But she reported “that his personality disorder appears to have been improving over time” and said he has a “lack of current antisocial thinking.”
The District Attorney’s Office opposed parole, noting Diaz’s overall low-moderate risk assessment and the diagnosis of a personality disorder not otherwise specified. In addition, the circumstances of the commitment offense show “a premeditated execution murder, required three separate bursts, reloaded, drove up closer to file the third one and made sure [Theodore] was dead. This was a murder for financial gain. It’s a special circumstances murder. We execute people for this crime, and at minimum [Diaz] was facing life in prison without the possibility of parole” before pleading no contest to second degree murder.
After recessing for consideration, the panel reconvened the hearing and issued its decision, “concluding that [Diaz is] suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison.” Although describing the commitment offense as “obviously disturbing, heinous, actually disgusting,” the panel recognized Diaz’s “positive adjustment” and a number of considerations indicating that Diaz “no longer pose[s] a risk of danger to society.” Among those considerations are Diaz’s arrest history lacking any violence except a battery where Diaz helped his friend not to drive drunk; the degree of remorse shown for killing Theodore; Diaz’s participation in and donations to charities as a way to make some amends for his crime; his insight into why he committed the murder; his consistent and valuable contributions by working in prison, participating long term in self-help programs and completing technical and vocational training; his parole plans in terms of housing and work arrangements and support from his family and friends; and his age of 67. Noting the psychologist’s overall low-moderate risk assessment of Diaz, the panel determined that the rating was based on immutable historical characteristics, indicating that Diaz could be in prison “another 30 years and . . . still . . . be a low to moderate rating.” The panel concluded that Diaz “came across very credible . . . , you’re very sincere, and quite frankly, you come across as you’re just tired and you’re ready to go home.”
3. The Governor’s Reversal of the Grant of Parole
In a decision dated November 24, 2009, after relating the facts of the commitment offense, Diaz’s prior criminal history, his behavior in prison and certain positive factors regarding Diaz’s suitability for parole, including vocational training and assignments, participation in self-help programs and extracurricular activities, receipt of positive evaluations, support from family and friends and his parole plans, the Governor considered three areas that he found rendered Diaz unsuitable for parole. First, the Governor concluded that the second degree murder committed by Diaz was “especially heinous because it involved some level of premeditation” and “demonstrated an exceptionally callous disregard for [Theodore] Snyder’s life and suffering.” Next, the Governor was “troubled that Diaz has not participated in adequate self-help or group therapy during his incarceration in order to be successful on parole.” “Aside from his consistent participation in Yokefellows and Narcotics Anonymous, he has otherwise programmed in a limited manner,” despite the Board’s recommendation to Diaz in 2007 that he should “‘diversify [his] self-help.’” “Given the extremely cold and calculated nature of Diaz’s life offense,” the Governor was “concerned that [Diaz] has not participated in programs specifically tailored to deal with . . . issues” such as his admitted “‘hot temper[],’” lying, controlling nature, need for high-risk activities and a “‘sense of adventure’” and unstable social history. Finally, the Governor expressed concern with Diaz’s 2009 mental health evaluation, assessing him as a “‘low-moderate risk’” for future violence, general recidivism and psychopathy and diagnosing Diaz with a personality disorder not otherwise specific based on “‘narcissistic and antisocial features.’”
Based on those considerations, the Governor concluded, “At age 67 now, after being incarcerated for more than 20 years, Diaz has made some creditable gains in prison. But given the current record before me, and after carefully considering the very same factors the Board must consider, I believe his release would pose an unreasonable risk of danger to society at this time. Accordingly, I REVERSE the Board’s 2009 decision to grant parole to Diaz.”
4. Diaz’s Petition for Writ of Habeas Corpus and the Trial Court’s Order Granting the Petition
After the Governor’s reversal of the grant of parole, Diaz filed a petition for writ of habeas corpus in the trial court, contending that some evidence did not support the Governor’s determination of current dangerousness. Over opposition, the trial court agreed and granted the petition.
Addressing the Governor’s concerns regarding Diaz’s commitment offense and unstable social history, the court determined that they “do not continue to indicate a current risk of violence, after 19 years of violence-free rehabilitation. [¶] . . . [¶] [T]he Governor’s findings regarding the offense and other past antisocial misconduct, absent a rational nexus between those facts and current dangerousness, do not provide some evidence of unsuitability.” The court also concluded that, with respect to “the Governor’s general finding that [Diaz] should participate in more, diversified self-help programs, absent any evidence of a current behavioral problem or lack of insight or remorse, does not support a finding of unsuitability.” Finally, regarding the “slightly elevated risk assessment and the diagnosis of a possible non-specified antisocial personality disorder with narcissistic traits” in Diaz’s 2009 mental health evaluation, the court determined that “the only factors cited for elevating [Diaz’s] assessments and for his diagnosis of a possible personality disorder were immutable, attenuated factors, involving his past criminality and antisocial conduct. The psychological evaluator acknowledged this fact, indicating that the tests were scored ‘within his lifetime history rather than being scored based on his current presentation alone’ and that because of [Diaz’s] historical factors, [his] score is ‘unlikely to ever fall below the low-moderate range’ for his assessments. [Citation.] Thus, the slightly elevated assessment does not provide evidence that [Diaz] is currently dangerous.” The court, therefore, found “no evidence indicating that [Diaz’s] release would unreasonably endanger public safety” and granted the petition, ordering the Governor to vacate his decision and reinstating the Board’s decision for release. This appeal followed.^[2]
DISCUSSION
1. Considerations in Making a Parole Suitability Determination and Review of the Determination Based on Some Evidence of a Current Threat to Public Safety
In evaluating an inmate’s parole suitability, “the Board must grant parole unless it determines that public safety requires a lengthier period of incarceration for the individual because of the gravity of the offense underlying the conviction. [Citation.] And as set forth in the governing regulations, the Board must set a parole date for a prisoner unless it finds, in the exercise of its judgment, after considering the circumstances enumerated in [California Code of Regulations, title 15,] section 2402 [or section 2281] of the regulations, that the prisoner is unsuitable for parole. [Citation.] Accordingly, parole 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.) As a result, “parole is the rule, rather than the exception” (In re Smith (2003) 114 Cal.App.4th 343, 366), and every inmate, except those for whom parole is not a possibility, has a protected liberty interest in parole under the state constitution’s due process clause (In re Rosenkrantz, at p. 660).
In making a parole suitability determination, the Board, and the Governor as well, must consider “[a]ll relevant, reliable information available to the panel,” consisting of “the circumstances of the prisoner’s social history; past and present mental state; past criminal history, including involvement in other criminal activity [that] is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information [that] bears on the prisoner’s suitability for release.” (Cal. Code Regs., tit. 15, § 2402, subd. (b) [applicable to commitment offenses on or after Nov. 8, 1978].) Circumstances tending to show unsuitability for parole include an especially heinous, atrocious or cruel manner of perpetrating the commitment offense; a previous record of violence; an unstable social history; commission of sadistic sexual offenses; a lengthy history of severe mental problems related to the offense; and the commission of serious misconduct while incarcerated. (Id. at subd. (c).) On the other hand, circumstances tending to show suitability for parole include the absence of a juvenile record; a reasonably stable social history; signs of remorse; a significant life stress as a cause of the commitment offense; battered woman syndrome; the absence of a significant criminal history of violent crime; the inmate’s age; realistic plans for the future or marketable skills; and activities during incarceration revealing “an enhanced ability to function within the law upon release.” (Id. at subd. (d).)
“[T]he fundamental consideration in parole decisions is public safety . . . .” (In re Lawrence (2008) 44 Cal.4th 1181, 1205 (Lawrence).) “[T]he core determination of ‘public safety’ . . . involves an assessment of an inmate’s current dangerousness. . . . [A] parole release decision authorizes the Board (and the Governor) to identify and weigh only the factors relevant to predicting ‘whether the inmate will be able to live in society without committing additional antisocial acts.’ [Citation.] These factors are designed to guide an assessment of the inmate’s threat to society, if released, and hence could not logically relate to anything but the threat currently posed by the inmate.” (Id. at pp. 1205-1206.) “[T]he aggravated nature of a commitment offense does not, in every case, provide relevant evidence that an inmate remains dangerous, and a focus upon the egregiousness of the commitment offense to the exclusion of other relevant evidence has proved in practice to obscure the core statutory emphasis upon current dangerousness . . . .” (In re Shaputis (2008) 44 Cal.4th 1241, 1254.) Accordingly, “‘[t]he relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after the commission of the offense.’” (Ibid., italics added.)
“[W]hen 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. [Citations.]” (Lawrence, supra, 44 Cal.4th at p. 1212.) Although deferential, the standard is “not toothless.” (Id. at p. 1210.) “‘[D]ue consideration’ of the specified factors 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.” (Ibid.; see also In re Twinn (2010) 190 Cal.App.4th 447, 463 [decision to deny parole must include “some connection between the findings and the conclusion that the inmate is currently dangerous”].)
2. The Absence of Some Evidence That Diaz Constitutes a Current Threat to Public Safety
In reversing the Board’s grant of parole to Diaz, the Governor determined that Diaz constitutes a risk of current dangerousness based on the nature of the commitment offense; a need for additional and consistent self-help programming to address his unstable social history and give him skills and knowledge to succeed on parole; and the psychologist’s overall low-moderate risk assessment and diagnosis of a personality disorder not otherwise specified. But none of these factors, whether viewed independently or together, provides some evidence that Diaz currently is dangerous and poses a threat to public safety.
Regarding the commitment offense, the Governor concluded that Diaz’s crime was “especially heinous because it involved some level of premeditation” and “demonstrated an exceptionally callous disregard for [Theodore] Snyder’s life and suffering.” Even crediting the Governor’s description of Diaz’s crime, the Governor failed to articulate any “rational nexus between those facts and current dangerousness.” (Lawrence, supra, 44 Cal.4th at p. 1227.) Diaz murdered Theodore based on the cocaine-driven lifestyle he led at the time and information he had received from Sharon. After serving the equivalent of more than 20 years in prison, and at the age of 67 with several health conditions when granted parole, Diaz has accepted responsibility for the crime, expressed severe remorse and recognized the factors in his life and personality that caused him to commit the murder. He has worked very hard to remediate or overcome those factors and, as noted by the psychologist, “has been responsive to treatment” and “developed good insight into the crime and the factors leading to its commission.” The facts of Diaz’s crime standing alone thus are not “probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor.” (Id. at p. 1221; see, e.g., In re Loresch (2010) 183 Cal.App.4th 150, 160-161 [“execution-style murder that demonstrated an exceptionally callous disregard for human suffering” and was committed for a trivial motive to “curry favor” with a third party did not demonstrate current threat to society absent factors showing dangerousness derived from commission of the offense].) Accordingly, the commitment offense by itself does not provide some evidence that Diaz currently poses a danger to the public if released on parole.
The Governor’s perceived need for Diaz to participate in additional and consistent self-help programming to address his unstable social history and help him succeed on parole, particularly in light of the Board’s 2007 recommendation that Diaz diversify his self-help programming, also does not constitute some evidence of current dangerousness. Diaz has participated in the Yolkfellows Program since 1995 and Narcotics Anonymous since 1999, demonstrating a long-lasting dedication to self-help. In addition, Diaz participated in the Alternatives to Violence Program, which specifically addresses the “unstable social history” that concerned the Governor. Diaz also was involved with charities through donations of time and money. Moreover, Diaz has no record of violence in prison and a commendable history of developing technical and vocational skills as well as laudable work reports. The psychologist noted Diaz’s participation in self-help programming as one of the bases for her conclusion that “[h]e has been responsive to treatment.” And Diaz has solid plans for parole and has committed to continue in a 12-step program. As a result, the Governor established no link between his concern that Diaz should participate in additional and consistent self-help programming and factors demonstrating current dangerousness. (In re Rodrick (2007) 154 Cal.App.4th 242, 273 [need for additional self-help programming does not support denial of parole when no evidence showed programming was “‘limited’ or deficient” in relation to inmate’s rehabilitation].)
Finally, the Governor’s reliance on the psychologist’s risk assessment of Diaz in the low-moderate range and her diagnosis of a personality disorder not otherwise specified based on narcissistic and antisocial features does not support a finding of current dangerousness. Regarding the risk assessment, the psychologist specified that historical factors pertaining to Diaz’s social history and the lifestyle that he led before the commitment offense caused the low-moderate assessment (under all three assessment guides), that it was “not amenable to significant change regardless of the number of years of his incarceration or the amount of participation in self-help programming” and that, “[b]ased on the data obtained from the historical domain alone, Mr. Diaz is unlikely to ever fall below the low-moderate range.”^[3] Although the Governor may base a denial of parole on immutable facts, “some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. [Citation.]” (Lawrence, supra, 44 Cal.4th at p. 1221.) Here, given Diaz’s acceptance of responsibility for the crime, remorse and rehabilitation in prison, the low-moderate risk assessment based on immutable facts is not some evidence that release of Diaz on parole creates an unreasonable risk to public safety.
With respect to the diagnosis of a personality disorder not otherwise specified, the psychologist cited only Diaz’s historical characteristics, noted “his personality disorder appears to have been improving over time” and said he has a “lack of current antisocial thinking . . . .” More importantly, the psychologist did not explain how her diagnosis related to a current risk of future criminality given Diaz’s rehabilitation. Rather, according to the psychologist, Diaz “did not express overt criminally minded thinking” despite his past lifestyle. And she noted that he “did not show signs of lack of remorse” for his crime, had insight into why he committed it and to prevent such behavior in the future and has the support of his family, parole plans and a dedication to live his life in society as he has done in prison. Thus, the diagnosis of a personality disorder not otherwise specified is not some evidence that Diaz “continues to pose an unreasonable risk to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1221.)
DISPOSITION
The order granting Diaz’s petition for writ of habeas corpus is affirmed.
NOT TO BE PUBLISHED.


ROTHSCHILD, J.

We concur:

MALLANO, P. J.

JOHNSON, J.

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