In re Orozco

Filed 2/3/09 In re Orozco CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE COURT:

PROCEEDINGS in habeas corpus following the Governor's reversal of a grant of parole. Relief granted.

In 1980 a jury convicted Jose Orozco of first degree murder with the personal use of a deadly weapon. The trial court sentenced him to an indeterminate prison term of 26 years to life. He became eligible for parole in 1995. At a hearing in 2006, the Board of Parole Hearings (Board) found him suitable for parole for the second time.^[1] However, the Governor reversed the Board's decision, finding Orozco's release "would pose an unreasonable risk of danger to society at this time."

Orozco petitioned for habeas relief, arguing the Governor's decision denies him due process of law because it is based solely on the unchanging circumstances of his commitment offense rather than any evidence of current dangerousness.^[2] After considering respondent's informal response and Orozco's informal reply, we issued an order to show cause why the relief requested should not be granted. The Attorney General filed a return and Orozco filed a combined denial and traverse.

While the matter was pending before this court, the California Supreme Court decided In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), which clarify the standards for judicial review of parole decisions. We permitted both parties to file letter briefs discussing the application of Lawrence and Shaputis to this case.^[3] In addition, as Orozco provided us with only a limited record to review, we requested the Attorney General submit a complete copy of the record relied upon by the Governor to make his decision.^[4] We also requested and received letter briefs from the parties addressing the appropriate disposition should we find insufficient support in the record for the Governor's decision. After carefully reviewing the record and applying the standards articulated in Lawrence and Shaputis, we conclude the record does not contain some evidence to support the Governor's decision. We, therefore, grant Orozco habeas relief and order the Board's decision reinstated. We further order the respondent to release Orozco subject to the conditions contained in the Board's decision and any applicable federal immigration hold.

FACTUAL AND PROCEDURAL BACKGROUND

Circumstances of the Commitment Offense

In 1979 Orozco stabbed Richard Sauceda^[5]twice in the upper chest, three times in the upper back, and twice in the lower back with a six- to eight-inch knife. One of the strikes lacerated Sauceda's liver. When police officers arrived, Sauceda was sitting in a pool of blood with his arms folded across his body and his wife was attempting to administer first aid to him. Sauceda refused to unfold his arms and the officers used a knife to cut off Sauceda's robe, revealing the stab wounds. Sauceda also refused to answer questions about who had stabbed him and his wife stated she did not know. Sauceda was transported to a hospital where, despite emergency surgery to stop his bleeding, he died from hemorrhagic shock.

Initially, Orozco claimed he killed Sauceda in self-defense, but he now admits he intentionally killed Sauceda. According to Orozco's testimony at the parole hearing, a friend introduced Sauceda to Orozco because Sauceda wanted to buy some heroin. After Orozco agreed to facilitate a transaction for Sauceda, the three men used some heroin and Orozco passed out. He woke up in the trunk of a car, beaten and believing he had been set up and was going to die. However, when the two men opened the trunk, Orozco escaped.

A few days later, his brother-in-law Gabriel Ruiz drove him to his friend Mario Vera's apartment to buy heroin. Ruiz waited outside while Orozco purchased the heroin. During the transaction, Vera told Orozco that Sauceda was in a nearby apartment. After using the heroin, Orozco asked Vera for a weapon and Vera gave him a knife. Orozco took the knife, walked over to Sauceda's apartment, confronted him, and stabbed him. Orozco fled and met up with Ruiz, who was midway between the apartment and the car. The two men ran back to Ruiz's car and left.

Criminal History and Postconviction Conduct

Orozco's adult criminal history includes convictions for battery on a confined person, disturbing the peace, being under the influence of and possessing dangerous drugs, illegal entry into the United States, and forgery.^[6] In addition, he has had adult arrests for assault with intent to commit murder, robbery, attempted entry into the United States by a false claim, driving under the influence of drugs, and being under the influence of a controlled substance.

While incarcerated Orozco has received eight disciplinary actions:^[7] two for excessive contact with his wife, one for violating institution rules against making loans to other inmates or their family members, two for refusing to take a drug test after a corrections officer found puncture wounds on him, two for being in places he was not permitted to be, and one for possession of inmate-manufactured alcohol. The most recent disciplinary action was in 1992 for excessive contact.^[8]

Orozco has also received 11 disciplinary counselings^[9]while incarcerated: one for excessive contact, one for poor performance in the vocational dry cleaning program, two for attendance problems in the vocational dry cleaning program, two for unauthorized use/misuse of telephone privileges, four for attendance problems in the vocational electronics program, and one for being in a place he was not permitted to be. The most recent disciplinary counseling was in 1991 for excessive contact.

Education, Vocational Training, Work Experience, and Parole Plans

Orozco was expelled from high school in the 11th grade. During his incarceration, he has obtained a general equivalency diploma and completed vocational training in electronics and dry cleaning.^[10] In addition, he has completed training in peer counseling.

When Orozco was 17 years old, he enlisted in the United States Marine Corps, but was medically discharged within a year.^[11] He subsequently worked as a dishwasher, a maintenance worker, and a counselor's aid. However, his primary source of income before his incarceration was from selling drugs. During his incarceration, Orozco has worked in the prison laundry, optical, and license plate manufacturing industries, the kitchen, and as a porter. He currently works as a counselor in the Amity Foundation Program (Amity Program),^[12]with exceptional performance evaluations. Upon parole, Orozco and his wife plan to live in Tijuana, where Orozco has been offered jobs at three different residential drug treatment programs.

Substance Abuse and Mental Health History

Orozco has a long history of substance abuse which he attributes to being sexually abused by a family friend when he was young. At age 15, he began drinking alcohol and using Seconal. At age 18, he began using heroin, first snorting and then injecting the drug. At age 22, he began using cocaine. Prior to the commitment offense, he had been civilly committed to the California Rehabilitation Center intermittently for seven years until he was eventually determined to be unsuitable for drug treatment.

In prison, Orozco continued to abuse substances until the late 1980's. Around that time, Orozco began participating in Alcoholic Anonymous and Narcotics Anonymous programs. In 1991 Orozco became involved with the Amity Program. Since then, he has participated in numerous self-help programs and completed over 29,120 hours of substance abuse treatment.

Orozco's most recent mental health evaluation, completed in 2004 by Dr. Elaine Mura,^[13]indicates Orozco has confirmed "characterological deficits," but is not in need of psychiatric treatment. She diagnosed him as having a personality disorder with antisocial and narcissistic features that has improved considerably over the years. In addition, she diagnosed him with opioid dependence and polysubstance abuse/dependence, both in sustained remission in a structured setting.

Assessment of Future Violence Risk

As part of the mental health evaluation, Dr. Mura assessed Orozco's risk for future violence in three domains: history and background, clinical presentation, and management of future risk. Based on his history and background, Dr. Mura assessed his risk for future violence as low to moderately low. Based on his clinical presentation, Dr. Mura assessed his risk for future violence as low. Based on his plans for managing future risk, Dr. Mura also assessed his risk for future violence as low. Overall, considering his cultural background, personal, social, and criminal history, institutional programming, community/social support, release plans, maturation, and current clinical presentation, Dr. Mura assessed his risk for future violence as low.

Dr. Mura explained Orozco's "primary destabilizer would obviously be substance abuse relapse. However, several factors probably militate against this happening, including his ability to maintain sobriety for the past decades, his intense involvement in and commitment to substance abuse programming, and personal support in the community. Given his disciplinary history and continuing involvement in the Amity community, there does not appear to be any question that he can comply with remediation efforts." She concluded, "To the extent possible within prison, he seems to have rehabilitated himself." She further concluded, "At this time, he is probably as safe a bet as he will ever be for remaining violence-free in the community."

Board's Decision Granting Parole, Governor's Reversal, and Petition for Habeas Relief

After considering the circumstances of the commitment offense, Orozco's criminal history, personal history, prison programming, and parole plans, as well as the district attorney's opposition to parole, the Board determined Orozco was suitable for parole.^[14] The Board based its decision on Orozco's limited history of violent criminal conduct, lack of discipline for violent behavior, lengthy period of disciplinary-free behavior, and favorable psychological evaluation estimating a low risk for future violence. In addition, the Board based its decision on Orozco's prison programming, including his vocational training, successful work history, and extensive participation in therapy and self-help programs. The Board also found Orozco's parole plans were realistic and his risk of recidivism was reduced because of his "maturation and growth and understanding."

The Governor subsequently reviewed and reversed the Board's decision because of the gravity of the commitment offense. Orozco filed this habeas petition, arguing the Governor's decision violates his due process rights because the decision is not supported by some evidence showing he poses a current threat to public safety.

DISCUSSION

The California Constitution empowers the Governor to review parole decisions involving inmates, such as Orozco, who have been convicted of murder and sentenced to indeterminate prison terms. (Cal. Const., art. V,  8, subd. (b).) The Governor may affirm, modify, or reverse a parole decision based on the same statutory and regulatory factors the Board is required to consider. (Ibid.; see also, Pen. Code,  3041.2; Shaputis, supra, 44 Cal.4th at p. 1258; In re Rosenkrantz (2002) 29 Cal.4th 616, 660 (Rosenkrantz).) The Governor has the discretion to determine how to balance these factors as well as the discretion to resolve any evidentiary conflicts and determine the weight to be given the evidence. (Shaputis, supra, at p. 1260; Rosenkrantz, supra, at p. 677.) Moreover, because the Governor's review is independent and de novo, the Governor may be more stringent or cautious than the Board in deciding whether an inmate's release will pose an unreasonable risk to public safety. (Shaputis, supra, at p. 1258; Lawrence, supra, 44 Cal.4th at p. 1236; Rosenkrantz, supra, at pp. 660, 686.) Nonetheless, the Governor's decision, like the Board's decision, must comport with due process. (Rosenkrantz, supra, at p. 660.)

A decision by the Governor to reverse the Board's grant of parole comports with due process as long as: (1) the decision reflects due and individualized consideration of all the relevant statutory and regulatory factors for determining parole suitability, and (2) there is some evidence in the record to support the conclusion the inmate is currently dangerous. (Shaputis, supra, 44 Cal.4th at p. 1258; Lawrence, supra, 44 Cal.4th at pp. 1210-1212; Rosenkrantz, supra, 29 Cal.4th at pp. 676-677.) If the decision meets these requirements, a court will uphold the decision regardless of whether the court believes the evidence in the record demonstrating suitability for parole far outweighs the evidence demonstrating unsuitability. (Shaputis, supra, at pp. 1260-1261; Rosenkrantz, supra, at p. 677.)

In this case, the Governor reversed the Board's grant of parole based on the circumstances of the commitment offense, which the Governor found to be "extremely brutal and callous." Of particular concern to the Governor, Orozco intentionally decided to kill Sauceda, he took Sauceda by surprise, and he stabbed Sauceda multiple times with a six- to eight-inch knife without stopping. Although the Governor acknowledged Orozco had made some credible gains in prison, the Governor found "the gravity of the murder perpetrated by Mr. Orozco presently outweighs the positive factors."

As here, the circumstances of the commitment offense are often the primary, if not exclusive, justification for a decision by the Governor to reverse a grant of parole. Because the circumstances of the commitment offense are immutable, courts have struggled in recent years to reconcile the inmate's liberty interest in parole with the Governor's ability to continually rely on this factor and the deferential standard of review applicable to the Governor's parole decisions. (Lawrence, supra, 44 Cal.4th at p. 1207.) Recognizing this struggle, the California Supreme Court recently clarified that, when reviewing a decision by the Board to deny parole or a decision by the Governor to reverse a grant of parole, courts should look to see whether there is some evidence in the record, meaning at least a modicum, to support the conclusion the inmate is unsuitable for parole because the inmate is currently dangerous. (Shaputis, supra, 44 Cal.4th at p. 1254; Lawrence, supra, at p. 1191.)

The Supreme Court further clarified that the circumstances of the commitment offense or other immutable facts, such as an inmate's criminal history, will only provide some evidence of an inmate's current dangerousness if these facts, when considered in light of the other facts in the record, continue to be probative of the inmate's current dangerousness. (Shaputis, supra, 44 Cal.4th at pp. 1254-1255; Lawrence, supra, 44 Cal.4th at pp. 1214, 1221.) As the Supreme Court explained, "When . . . all of the information in a postconviction record supports the determination that the inmate is rehabilitated and no longer poses a danger to public safety, and the Governor has neither disputed [the inmate's] rehabilitative gains nor, importantly, related the commitment offense to current circumstances or suggested that any further rehabilitation might change the ultimate decision that [the inmate] remains a danger, mere recitation of the circumstances of the commitment offense, absent articulation of a rational nexus between those facts and current dangerousness, fails to provide the required 'modicum of evidence' of unsuitability." (Lawrence, supra, at pp. 1226-1227.)

Applying the clarified standards to the facts of this case, we conclude the record submitted by the Attorney General does not contain some evidence showing Orozco is currently dangerous. Certainly, the circumstances of the commitment offense are despicable and fully justify Orozco's conviction and sentence for first degree murder. Nevertheless, Orozco's postconviction record, at least since 1992, shows he has made impressive rehabilitative gains. Perhaps the strongest evidence of this is Dr. Mura's report, which in addition to assessing Orozco's future violence potential as low, concludes Orozco "has rehabilitated to the greatest extent possible within his present situation." The Governor does not dispute Orozco's rehabilitative gains or identify any further rehabilitation efforts Orozco should undertake to demonstrate he is no longer dangerous. The Governor also does not explain why, given Orozco's rehabilitative gains, the circumstances of the commitment offense continue to be probative of Orozco's current dangerousness. Accordingly, the Governor has not articulated a rational nexus between the circumstances of the commitment offense and his conclusion Orozco remains dangerous as required by Lawrence and Shaputis.

The Attorney General argues the circumstances of the commitment offense continue to be probative of Orozco's current dangerousness because Orozco lacks adequate insight and understanding of why he committed the crime. As support for this argument, the Attorney General references statements in the probation report and past mental health evaluations showing Orozco has made prior inconsistent statements about his involvement in Sauceda's death. The Attorney General also references statements in the probation report and remarks made at Orozco's parole hearing by the district attorney's representative suggesting there were two stabbers and Orozco is protecting an accomplice.

We agree an inmate's lack of insight and understanding may demonstrate the circumstances of the commitment offense continue to be a reliable indicator of the inmate's current dangerousness. (Shaputis, supra, 44 Cal.4th at p. 1260; Lawrence, supra, 44 Cal.4th at p. 1228.) We also note that "expressions of insight and remorse will vary from [inmate] to [inmate] and . . . there is no special formula for [an inmate] to articulate in order to communicate that he or she has gained insight into, and formed a commitment to ending, a previous pattern of violent behavior." (Shaputis, supra, at p. 1260, fn. 18.) Here, Orozco's characterization of his role in Sauceda's death has progressed from initially claiming he killed Sauceda in self-defense, to then claiming a crime partner killed Sauceda, to now admitting he intentionally killed Sauceda and acted alone. While these characterizations are inconsistent, generally an inmate's progression from accepting no responsibility for a crime to accepting full responsibility for a crime evidences the presence of insight and understanding rather than their absence.

The Attorney General argues this progression does not demonstrate insight, understanding, or remorse in this case because there is some evidence in the record showing Orozco was not the only person who stabbed Sauceda. Specifically, the probation report states Sauceda's wife told police that Sauceda told her, "They stabbed me, I can't breathe." In addition, the report also states an unidentified female witness heard another unidentified woman say, "Leave my husband alone, you son-of-a-bitches." The report also states "[t]wo male Mexican subjects were then observed [by some unidentified person] running across a parking lot at the scene and leaving in a compact car, at a high rate of speed." Furthermore, at Orozco's parole hearing, the district attorney's representative argued, "[Orozco] does not get the whole picture here. I listened to the testimony. I talked to the witnesses. Very clearly there were two stabbers, and he's protecting someone. And I don't think he's come to grips with the whole picture at this point."

Although the Governor's decision was based on the gravity of the commitment offense and not Orozco's level of insight, understanding or remorse, the decision references the statements in the probation report and the remarks of the district attorney's repesentative as evidence "suggesting Mr. Orozco may not accept responsibility for the crime" (Italics added.) The equivocal nature of the Governor's conclusion on this point mirrors the evidentiary support for it.

The remarks of the district attorney's representative do not include any factual details and, regardless, the remarks are not evidence. Although the probation report contains factual details, the report is of questionable evidentiary value. The report has numerous stray marks on it, it is not filed stamped, and the signature lines for the author, the author's supervisor, and the trial court judge are all blank, which suggests the report may be a draft. At the very least, the report is not obviously authentic. Also troubling, the information in the report consists of multiple and largely unattributed hearsay statements obtained from the San Diego Police Department's report and the district attorney's files. We cannot determine from the record submitted by the Attorney General whether the information is consistent with the trial evidence, is consistent with the jury's findings, or is otherwise reliable.

Assuming, without deciding, that the information in the probation report can be considered evidence for parole consideration purposes, the information does not establish that there were two stabbers because none of the witnesses claims to have seen the stabbing. At most, the information establishes that more than one person fled the crime scene, which is wholly consistent with Orozco's testimony at the parole hearing.

The information in the probation report also does not establish Orozco is protecting anyone. The report does not directly discuss whether Orozco had an accomplice or what role the accomplice may have played in Sauceda's death. Conversely, in his testimony at the parole hearing, Orozco specifically identified who drove him to and from the crime scene as well as who told him where Sauceda was and provided him with the knife to kill Sauceda. Although Orozco denied either man participated in the actual stabbing, his testimony did not exculpate them from having a role in Sauceda's murder. Further, it appears from our decision on appeal, which is part of the record submitted by the Attorney General,^[15]the district attorney was aware of both these men and their potential roles in the crime at the time of Orozco's trial. (People v. Orozco, supra, 4 Crim. No. 11737 at pp. 5, 7.) Moreover, at the parole hearing, the Board offered the district attorney's representative an opportunity to question Orozco about his version of events, including the role of any accomplices, but the representative declined to do so.

Because there is not some evidence to show Orozco is continuing to mischaracterize his role in Sauceda's death or is protecting anyone, there is not some evidence to show Orozco lacks insight, understanding, and remorse such that the circumstances of the commitment offense remain probative of Orozco's current dangerousness. Given the undisputed evidence of Orozco's rehabilitation and the lack of some evidence of current dangerousness to support the Governor's decision, we conclude Orozco is entitled to habeas relief.

Although the Attorney General argues the appropriate relief is to remand the matter back to the Governor for further consideration, the Attorney General has not explained what purpose a remand would serve in this case. The Attorney General has provided us with and we have considered the evidence in the record the Attorney General believes supports the Governor's decision and we have found this evidence insufficient under Lawrence and Shaputis. The Attorney General has not identified any other evidence in the record bearing on Orozco's current dangerousness that the Governor has not considered or that was not reflected in the Governor's decision. Accordingly, we conclude the appropriate relief in this case is to vacate the Governor's decision, reinstate the Board's 2006 decision, and order Orozco's release subject to the conditions specified in the Board's 2006 decision and any applicable federal immigration hold. (See, e.g., In re Burdan (2008) 169 Cal.App.4th 18, 39-40; In re Aguilar (2008) 168 Cal.App.4th 1479, 1491; In re Gray (2007) 151 Cal.App.4th 379, 410-411; In re Lee (2006) 143 Cal.App.4th 1400, 1414-1415; In re Scott (2005) 133 Cal.App.4th 573, 603-604.)

DISPOSITION

The Governor's decision reversing the Board's 2006 decision granting Orozco parole is vacated. The Board's 2006 decision granting Orozco parole is reinstated and respondent is ordered to release Orozco subject to the conditions set forth in the Board's 2006 decision and any applicable federal immigration hold.

McCONNELL, P. J.

WE CONCUR:

NARES, J.

McDONALD, J.

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^[1] The Board previously found Orozco suitable for parole at a hearing in 2004, but Governor Arnold Schwarzenegger reversed the Board's decision. At another hearing in 2005, the Board found Orozco unsuitable for parole because he did not have appropriate parole plans in Mexico, where he expects to be deported upon his release.

^[2] Orozco previously petitioned the superior court for habeas relief. The court dismissed the petition as moot because Orozco had another parole hearing scheduled in the near future. Orozco argues the court erred in dismissing the petition. The court's dismissal order is not reviewable by this court. (In re Crow (1971) 4 Cal.3d 613, 621, fn. 8.) Nonetheless, we agree the prospect of another parole hearing in the near future does not warrant dismissal of a challenge to a decision made in a prior parole hearing where, as here, the underlying controversy is likely to recur and the dismissal would allow the underlying controversy to escape review. (In re Scott (2004) 119 Cal.App.4th 871, 877, fn. 1.)

^[3] Orozco also submitted an unsolicited reply to the Attorney General's letter brief, which we have not considered.

^[4] The record submitted included copies of a probation report; a 1980 Department of Corrections case summary; state and federal criminal history reports; our decision in People v. Orozco (Jan. 18, 1982, 4 Crim. No. 11737) [nonpub. opn.]); Orozco's prison disciplinary actions and counselings; Orozco's 1986, 1992, and 2004 mental health evaluations; and the transcript of Orozco's 2006 parole hearing. At oral argument, the Attorney General acknowledged the record submitted did not include all of the documents before the Board or available to the Governor. Instead, the record submitted includes only the documents favorable to the Governor's position.

^[5] The probation report identifies the victim as Israel Salazar. During the hearing, the Board referred to the victim as Israel and Orozco's counsel referred to the victim as Mr. Salazar. However, Orozco referred to the victim as Richard and the Governor's decision identified the victim as Richard Sauceda. As we are unable to resolve the discrepancy with the record provided, we refer to the victim as Richard Sauceda to parallel the decision being challenged.

^[6] During the parole hearing, the Board noted with interest Orozco's lack of a juvenile criminal history. However, during Orozco's most recent mental health evaluation, he reported he was picked up by police and placed in juvenile hall a few times when he was 16 years old for being under the influence of alcohol and drugs.

^[7] During the parole hearing, the Board stated Orozco had six disciplinary actions. The record submitted by the Attorney General contains eight.

^[8] During the parole hearing, the Board stated the most recent disciplinary action was in 1991. The record submitted by the Attorney General shows the most recent disciplinary action was in 1992.

^[9] During the parole hearing, the Board stated Orozco had 10 disciplinary counselings. The record submitted by the Attorney General contains 11.

^[10] The Governor's decision states Orozco has also completed vocational training in mill and cabinetry. The Board did not mention Orozco's completion of this training during the parole hearing and the record submitted by the Attorney General does not contain evidence showing Orozco has completed this training.

^[11] Orozco states he was discharged after a drill instructor stepped on his hand and damaged his tendons and/or broke his fingers. Other information in the record indicates both of Orozco's hands were damaged in a bicycle accident when he was young.

^[12] Although Orozco presented documents describing the Amity Program to the Board, these documents were not included in the records submitted by either party. (See fn.4, ante.) From comments made during the parole hearing, the Amity Program appears to be a prison-based residential substance abuse program.

^[13] Dr. Mura is a forensic psychologist. The Board described her as "one of the most respected doctors that we have."

^[14] In his decision reversing the Board's first grant of parole, Governor Schwarzenegger referred to a letter from Sauceda's son opposing parole. The letter was not in Orozco's prison file and, consequently, was not considered by the Board at the 2006 hearing. The Governor did not reference the letter in the instant decision nor is it in the record the Attorney General submitted.

^[15] Although we could resolve many of the factual and evidentiary questions identified in this opinion by taking judicial notice of our appeal file, we have not done so because our role in this case is to review the record before the Governor.