In re Lizarraga
Filed 4/23/13 In re Lizarraga CA2/8
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
In re SERGIO RAFAEL LIZARRAGA,
on Habeas Corpus.
B242180
(Los Angeles
County
Super. Ct.
No. BH 008245)
APPEAL from
an order of the Superior Court
of
County, Patricia M. Schnegg, Judge. Reversed and remanded.
Kamala D.
Harris, Attorney General, Jennifer A. Neill, Assistant Attorney General,
Julie A. Malone and Charles Chung, Deputy Attorneys General, for
Appellant.
Susan L.
Jordan, under appointment by the Court of Appeal, for Respondent.
* * * * * *
Petitioner
Sergio Raphael Lizarraga pleaded guilty to second
degree murder in 1994 and was sentenced to 15 years to life. The Board of Parole Hearings (Board) denied
parole in May 2011 but the trial court ordered the Board to vacate its decision
and to conduct a new parole hearing. We
conclude that the Board’s decision is supported by some evidence (
215 (Shaputis)) and therefore set
aside the trial court’s decision.
Petitioner, who was 24 years old
in 1993 when the crime was committed, was married to Yesinia and became
suspicious about the intentions of Jose De La Torre vis-Ã -vis his wife;
petitioner also felt that he and Yesinia were drifting apart. He was absorbed in his work and did not pay
enough attention to Yesinia and his young son.
When Yesinia told him she was going to a party, petitioner thought that
she was going to see De La Torre. In
fact, there was nothing going on between De La Torre and Yesinia.
Petitioner
disguised himself and armed himself with a gun.
(Petitioner gave two explanations for the disguise. One was that he wanted to deflect suspicion
on someone else, the other was that he didn’t want De La Torre and Yesinia to
recognize him.) He encountered De La
Torre outside the latter’s workplace, which was an automotive stereo shop on Whittier
Boulevard in Los Angeles. He asked De La Torre whether he liked to
“mess around with married women.†The
answer was, “Yes, so that I could see the stupid face of their husbands.†Petitioner was in a jealous rage and thought
that De La Torre was talking about him.
He took out the gun and shot De La Torre four times at close range.
Petitioner
fled but was apprehended shortly after the shooting.
“Accordingly, we
conclude that 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 that 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.†(In re Rosenkrantz (2002) 29 Cal.4th 616, 658, italics added.)
“We urge the
Courts of Appeal to bear in mind that while the ‘some evidence’ standard
‘certainly is not toothless’ ([In re]
Lawrence [(2008)] 44 Cal.4th [1181,]
1210), and ‘must be sufficiently robust to reveal and remedy any evident
deprivation of constitutional rights’ [citation], it must not operate so as to
‘impermissibly shift the ultimate discretionary decision of parole suitability
from the executive branch to the judicial branch’ [citation]. Under the framework established by
legislation and initiative measure, the Board is given initial responsibility
to determine whether a life prisoner may safely be paroled. (Pen. Code, § 3040.) The Governor is granted de novo review of the
Board’s decision, and is free to make his or her own determination, based on
the same factors the Board must consider.
(Cal. Const., art. V, § 8, subd. (b).) [¶]
in Lawrence, the ultimate conclusion
on parole suitability is subject to judicial review, that review is limited,
and narrower in scope than appellate review of a lower court’s judgment. The ‘some evidence’ standard is intended to
guard against arbitrary parole decisions, without encroaching on the broad
authority granted to the Board and the Governor.†(Shaputis,
supra, 53 Cal.4th at
p. 215.) Review under the “some
evidence†standard is more deferential than substantial evidence review. (Id. at
p. 210.)
The Board
had before it a document entitled Comprehensive Risk Assessment for the Board
of Parole Hearings (hereafter Risk Assessment) prepared by forensic
psychologist Michael F. Pritchard, Ph.D.
We will not summarize the Risk Assessment in its entirety. We do note, however, it is thorough and
detailed and contains, among other things, a reasonably complete review of
petitioner’s life history, which reflects that, other than this conviction, he
has no criminal record.
The section
of the Risk Assessment that addresses petitioner’s understanding of the crime
that he committed turned out to be of most concern to the Board. After examining statements that petitioner
gave about the crime immediately after its commission as well as statements
that were contemporaneous with the Risk Assessment, Dr. Pritchard
concluded: “The inmate’s statement is
largely a matter of externalization. He
discusses primarily the behavior of his victim, which is somewhat disingenuous
in regards to his assertion of the victim’s statement to him, as he was, after
all, the man holding the gun with violent intent. He does acknowledge his anger as a
provocation and jealousy as motivation; however, he shows little insight into
the dynamics of this. . . .
[¶] In the above statement he
does take full responsibility for the crime in the sense that he clearly states
that he went in disguise to the man’s place of work with the clear intention of
shooting him. He does not, however,
describe[] his own thoughts, feelings, and motivations in any self-aware, insightful
manner.â€
In the
hearing, deputy commissioner Jan Enloe, after noting that people fly into rages
about their spouses without committing murder, asked petitioner whether he knew
what had caused him to gun down De La Torre.
Enloe noted that petitioner is still relatively young and upon his
release could be expected to form a relationship with a woman, if not his
former spouse. Enloe asked petitioner
what had triggered the awful rage that led to murder. After petitioner ascribed it to “unfounded
jealousy,†Enloe expressed the concern that if petitioner could not identify
the trigger, no one knew whether the same thing might not happen again. This exchange certainly validates
Dr. Prichard’s observation that petitioner does not have an adequate
insight into the reason(s) he committed a brutal crime.
In
reviewing petitioner’s case, presiding commissioner Arthur Anderson noted that
the murder was atrocious and cruel and that the unsuspecting victim was
vulnerable. The manner in which the
crime was committed “demonstrates an exceptionally callous disregard for human
suffering.†Commissioner Anderson
thought that “[t]he motive for the crime was very trivial in that it was one of
anger and rage and jealousy.â€
Commissioner Anderson stated that petitioner was still a work in
progress, with work still to be done by petitioner. Like commissioner Enloe, commissioner
Anderson thought that Dr. Pritchard’s conclusion was that petitioner had
not gained sufficient insight into the reasons he committed the murder.
Commissioner
Anderson also noted that petitioner had been cited for engaging with another
inmate in mutual combat in 2005, which demonstrated a lack of control. The report of this incident states that
petitioner and the other inmate were seen in the prison yard pushing and
throwing punches at each other in the upper torso and the face.
Dr. Pritchard
was of the opinion that petitioner presents a low risk for violence in the free
community. His personal history and his
institutional conduct indicate that he is unlikely to commit acts of violence
or to generally engage in criminal behavior. “However[,] within the narrow
context of an intimate relationship with a woman, his risk for violence, while
perhaps still low, is more uncertain. He
has not given himself the opportunity to understand the thoughts, feelings, and
motivations which impelled his violent behavior.†There was a risk that violent recidivism
would increase if petitioner does not develop reciprocal relationships in the
community, if he continues to harbor distortions about the crime, and if he
does not take advantage of self-help group opportunities.
The trial
court addressed the grounds for the Board’s decision but evaluated them
differently. Thus, as far as the callousness
of the murder was concerned, the trial court did not think that the
circumstances of this murder were exceptionally callous, citing inter alia
370, 384-385. As to the triviality of
the motive, the trial court noted that anger and jealousy involving a romantic
relationship is a common motive for violent crime. With reference to petitioner’s lack of
insight, the court noted that there must be some evidence that the inmate poses
a current threat to public safety, citing In
re Shaputis (2008) 44 Cal.4th 1241, 1254.
The fact that petitioner could not articulate an insightful explanation
why he committed the crime does not indicate that he poses a threat to public
safety. The mutual combat occurred six
years before the parole hearing, and petitioner has remained discipline-free
since then.
The court
concluded that a determination that the petitioner lacks insight “cannot be
predicated merely upon a hunch or intuition.â€
A decision that is based on no evidence is arbitrary and capricious.
“The ‘some evidence’ standard is intended to guard
against arbitrary parole decisions, without encroaching on the broad authority
granted to the Board and the Governor.â€
(Shaputis,
decision that denied petitioner’s application for parole.
The Board’s decision was reasoned and based on the
evidence that was available to the Board.
Petitioner’s lack of insight seems to have been the primary reason why
parole was denied. Commissioner Enloe
clearly articulated why this was important for purposes of determining whether
petitioner posed a danger to the public.
As Enloe pointed out, if petitioner did not understand why he murdered
De La Torre, it is hard to know whether such an act of violence could happen
again.
We appreciate the thoroughness with which the trial court
parsed through the reasons the Board gave in denying parole. Yet, it was not the trial court’s task to
correct evaluations made by the Board and to substitute the court’s own
evaluations for those of the Board. To
name two examples, that the Board thought the murder to be exceptionally
callous and the motive to be trivial did not empower the trial court to set
aside these conclusions as erroneous.
The trial court’s power, as our own, was and is limited to determining
whether there was some evidence to support these conclusions. Shooting an unsuspecting man four times at
close range and a totally unfounded suspicion of unfaithfulness qualify as
substantial evidence, and certainly as “some evidence,†of callousness and
triviality of motive.
We do not agree with the trial court’s final conclusion
that the finding petitioner lacked insight was merely a hunch or
intuition. Dr. Pritchard’s report
on this point rests on solid foundations, which are lengthy statements made by
petitioner, and his conclusions are closely reasoned. He traces petitioner’s development from the
point that he actually blamed the victim to a more insightful stage when he
realized the tragedy that he had brought about in shooting De La Torre. We will not burden this opinion with a
summary of Dr. Pritchard’s extended analysis of various risk factors, but
we do note that various rating factors and systems were used in reaching the
conclusion about risks posed by petitioner.
Petitioner’s efforts to sustain the trial court’s ruling
are unavailing.
Petitioner errs when he claims that the Board cannot rely
on the nature of the crime to deny parole; the Board may rely on this factor as
one of several in determining whether to grant or deny parole. (Shaputis,
supra, 53 Cal.4th at p. 219.)
Like the trial court, petitioner seeks to revise the
Board’s findings because they are allegedly erroneous. Thus, petitioner contends that
Dr. Pritchard’s conclusions were “patently false†because petitioner’s
testimony at the parole hearing indicates he has “sufficient insight.†When directly challenged by commissioner
Enloe, all that petitioner could say that explained his crime was jealousy. The point is that the Board thought that
there was more to it than that, as not every jealous husband guns down a
suspected philanderer. Thus, the fact
that there is testimony that indicates that petitioner is sincerely remorseful
does not alter that there is some evidence that petitioner does not appear to
fully understand the reason or reasons he shot De La Torre.
Petitioner points to his testimony that he now
understands that he should have attempted to work out the problem he had with
his wife by talking to her and seeking counseling. He claims not to have communicated this to
Dr. Pritchard, which he states explains Dr. Pritchard’s comment that
petitioner’s response was overly abstract and somewhat simplistic. But Dr. Pritchard’s conclusion is based
on petitioner’s inability to move beyond the circumstance that he killed De La
Torre out of jealousy. The fact that
petitioner mishandled his relationship with his wife casts very little light on
the reason(s) he committed murder.
Petitioner contends that his lack of insight supports a
denial of parole only if it has a connection to his current dangerousness and
that there is no such connection. We do
not agree. As commissioner Enloe pointed
out, until petitioner arrives at an understanding of why he killed (other than
the facile explanation that he was jealous), no one can say this might not
happen again. There is, in fact, a real
connection between petitioner’s lack of insight and his current dangerousness,
especially when it comes to a new romantic relationship, as Dr. Pritchard
pointed out.
The circumstance that there is much that can be said
about petitioner that is positive is only to be welcomed and is promising in
terms of parole sometime in the future.
The fact remains petitioner has yet to come to grips with the underlying
reasons he committed this crime.
Finally, it is true the mutual combat was six years in
the past when the parole hearing took place, but it could be said that when
incarcerated for murder committed in a fog of rage, one incident of
human being is one too many.
The order of the superior court granting the petition for writ of
habeas corpus is reversed, and the case is remanded to the superior court with
directions to enter a new order denying the petition.
FLIER,
J.
WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.
name="_ftn1" title="">[1] The
systems that were used were the Psychopathy Checklist-Revised, the
Historical-Clinical-Risk Management-20 Structured Guide for the Assessment of
Violence Risk and the Level of Service/Case Management Inventory.
