In re Orozco

Filed 7/18/08 In re Orozco CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Petitioner Anthony Orozco has been incarcerated since April 1987 pursuant to a conviction for second-degree murder (Pen. Code, 187). In August 2006, the Board of Prison Terms (now the Board of Parole Hearings; hereafter Board) concluded Orozco was unsuitable for parole on the ground that he posed an unreasonable risk of danger to the public if released. On April 19, 2007, Orozco filed the instant petition for a writ of habeas corpus in which he alleges that the Boards decision lacks evidentiary support.[1] In particular, Orozco contends the Board relied on non-existent facts in determining that the nature of the commitment offense supported a finding that Orozco is a threat to the public.

This court initially requested an informal response from respondent Acting Warden Richard Subia. Respondent submitted a letter brief arguing that the Boards decision is supported by some evidence and must be upheld. We thereafter ordered respondent to show cause why Orozco is not entitled to a new hearing based on the lack of evidentiary support for the Boards findings related to the disposition of the victims body. Contrary to respondents informal response, respondents return admits that there are discrepancies in the hearing transcript between the Boards statement of the facts of the commitment offense and the commitment offense facts that the Board cited in making its decision[.] Thus, respondent now concedes that the proper remedy is remand to the Board for a new hearing in accordance with due process. We agree, and grant the petition.

                                                                                                                                                                I.            Background

According to the Boards recitation of facts at the hearing, Sandra Kay Wendell was strangled to death sometime between March 14 and March 15, 1985. About two months later, the victims body was discovered in a field, buried in a shallow grave.[2] The fire department had previously responded to the burning of the victims car, and a lengthy police investigation eventually led to Orozco. Orozco added to the Boards summary at the hearing. Orozco met the victim at a bar and he strangled her when she wanted to end their sexual encounter. He dumped her body in the field and moved her car to a vacant church parking lot and set the car on fire. A jury ultimately found Orozco guilty of second-degree murder, and the court committed him to prison for an indeterminate sentence of 15 years to life.

The clinical evaluation conducted prior to the parole hearing determined that Orozco was in the lowest risk category for violence on parole and that it was likely he would have little difficulty re-integrating into society. While incarcerated, Orozco participated in numerous self-help, educational, and vocational programs. Among other things, Orozco completed the vocational and educational training needed for certification as a journeyman-level cabinet maker. At the time of the parole hearing, Orozco was employed by the Prison Industry Authority as a pattern maker and had been disciplinary‑free for over 17 years, since 1989. Orozcos minimum eligible parole date was April 7, 1996.

The Board denied Orozco parole at the hearing on August 24, 2006. The Board recognized Orozcos favorable psychological evaluations, his parole plans and marketable skill, his years of discipline-free behavior in prison, and his vocational and educational achievements. Nevertheless, the Board found Orozco unsuitable for parole based on the general finding that he posed an unreasonable risk of danger to society and a threat to the public. As support for this finding, the Board referenced the following: [T]he commitment offense. The victim was abused after the offense, in which she was laid in an open field and not found for about two months. The nature of the crime was inexplicable in relation to the events. Further, the victim did not deter the inmate from committing another crime and then he took her to another location and set her on fire. . . . When the victim changed her mind [regarding sex], he strangled her to death, carried her to an open field, and left her. He then retrieved her personal belongings, drove her car to another location, and set her on fire. (Italics added.) The Board also referred to an escalating pattern of criminal conduct, noting earlier arrests for theft and burglary and an attempt to flee county jail.

                                                                                                                                                                 II.           Discussion

[P]arole 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 (Rosenkrantz).) [C]ircumstances tending to establish unsuitability for parole are that the prisoner (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) previously has sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (Cal. Code Regs., tit. 15,  2402, subd. (c).) (Rosenkrantz, at pp. 653-654, fn. omitted.)

The Boards finding that Orozco posed a danger if released rested largely on the nature of the commitment offense. (See Cal. Code of Regs., tit. 15,  2402, subd. (c)(1)(A)-(E) [listing factors relevant to a finding of unsuitability for parole that relate to the commitment offense, including whether the victim was abused, defiled or mutilated . . . after the offense[,] whether the offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering[,] and whether [t]he motive for the crime is inexplicable or very trivial in relation to the offense].) However, the Boards recitation of the facts surrounding the offense is materially flawed; there is no evidence that the victim was set on fire or otherwise abused after the murder. The Boards summary of the crime notes only that the victim was buried in a shallow grave and not found for two months. Moreover, the record indicates that Orozco burned the victims car, not the victim herself. This is the sole fact listed to support the assertion that the motive of the crime was inexplicable when compared to the offense. The Boards finding that the offense was committed in an especially heinous, atrocious, or cruel manner thus lacks evidentiary support.

The remaining factor cited in support of the Boards unsuitability findingincreasing criminal conductappears secondary to the Boards decision. We therefore cannot conclude that absent the erroneous finding that Orozco set the victim on fire, the Board would have reached the same decision regarding unsuitability for parole. (See In re DeLuna (2005) 126 Cal.App.4th 585, 598 (De Luna).) An order vacating the Boards decision and remanding for a new parole hearing so that the Board may reconsider Orozcos parole suitability is appropriate in these circumstances. (See Rosenkrantz, supra,29 Cal.4th at p. 658; De Luna, at p. 598.)

                                                                                                                                                              III.         Disposition

The petition is granted. The Boards August 24, 2006 decision is vacated, and the matter is remanded to the Board to conduct a new hearing regarding Petitioner Anthony Orozcos suitability for parole. This opinion shall be final immediately upon filing with regard to this court. (See Cal. Rules of Court, rule 8.264(b)(3).)

_______________________________

Mihara, J.

WE CONCUR:

______________________________

Bamattre-Manoukian, Acting P.J.

______________________________

McAdams, J.

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[1] On March 12, 2007, the superior court denied Orozcos petition for a writ of habeas corpus to that court.

[2] The Board commissioner stated that the body was discovered on March22, 1985, but that the victim had died on March 14 or 15, some two months earlier. The probation report, which is referenced during the hearing, suggests that the mention of March 22 is a simple misstatement and that the victims body was actually discovered on May 22, 1985. This is consistent with the further observation that the body was found some two months after the victim died.