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In re Rovida
Filed 6/29/12 In re Rovida CA4/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re JAMES
ROVIDA, JR.
on Habeas Corpus.
G045598
(Super. Ct. No. C-76285)
O P I N I O N
Original
proceedings; petition for a writ of
habeas corpus. Petition denied.
James
Rovida, Jr., in pro. per.; and Steve M. Defilippis, under appointment by the
Court of Appeal, for Petitioner.
Kamala
D. Harris, Attorney General, Jennifer A. Neill, Assistant Attorney General, and
Phillip Lindsay, Gregory J. Marcot, and Kim Aarons, Deputy Attorneys General,
for Respondent.
The Board of Parole
Hearings (the Board) may grant an inmate parole if the inmate does not pose an
unreasonable risk of danger to society if released from prison. If the Board grants an inmate parole, the
matter is sent to the Governor for review, and the Governor may affirm, modify,
or reverse the Board’s decision. If the
Board, however, denies an inmate parole in the first instance, the inmate may
seek redress in the judicial system.
Here,
at a subsequent parole consideration hearing, the Board denied James Rovida,
Jr., parole, finding he would pose an unreasonable risk of danger to society or
a threat to public safety if released from prison. Rovida filed a petition for writ of habeas
corpus in the
County Superior Court. The trial
court denied the petition finding there was “some evidence†supporting the
Board’s decision. Rovida filed a
petition for writ of habeas corpus with this court. He argues there is no rational nexus between
the evidence that was before the Board and the Board’s determination he is
currently dangerous. We disagree.
FACTS
After
nine years of marriage, Rovida’s daughter, Cathy Brock (Cathy), and Robert
Brock had two children and an unstable marital relationship. The couple separated numerous times, and
Cathy would take her children to her parents’ house, infuriating Brock. Brock threatened Cathy many times and once
hit her on the head with an ashtray.
Brock told Cathy that he would hurt her parents and twice tampered with
Rovida’s truck and mailbox. Rovida tried
to stay out of the marital dispute, but he warned Brock to not harass him or
damage his property.
In June
1989, Cathy took her children and went to stay at her parents’ house. The family had planned a vacation to begin
the next day. Cathy wanted her children
to go on the trip, but Brock was opposed.
Brock told Cathy that he would burn down her parents’ house. Rovida was unaware of this threat.
The
next day, the family left for their vacation.
Brock was waiting for them at a freeway emergency exit. He drove beside them, cut in front of
Rovida’s truck and the boat he was pulling, and shouted they would never get to
the river and that he would burn down their house. In response, Rovida fired his .22 caliber
handgun twice through the passenger windows of Brock’s car. Brock left the freeway, and Rovida and his
family continued to their vacation destination.
A week
later, Brock worked the evening shift and got off work at 3:00 a.m. Fifty-five-year-old Rovida waited in the
parking lot, and when Brock got off work, Rovida chased Brock in his car to
Brock’s sister’s house. Rovida shot
Brock twice, the first shot behind the right earlobe and the second in the left
anterior chest wall, killing him. The
murder weapon, a .38 caliber handgun, was never found. However, Rovida was known to have owned a .38
caliber handgun, and police recovered .38 and .22 caliber ammunition from his
home.
A jury
convicted Rovida of first degree murder and attempted voluntary manslaughter
and found true firearm enhancements. In
August 1990, a trial court sentenced Rovida to prison for 27 years to life with
the possibility of parole. The following
year, another panel of this court affirmed Rovida’s conviction.
Fifteen
years later, on March 29, 2007, the Board held an initial parole consideration
hearing.
honest because the initial hearing serves as “the foundation for all future
hearings.†The Board relied on the
factual summary from our prior nonpublished opinion detailed above. Rovida admitted that when Brock followed him
onto the freeway, he shot at the rear passenger window because he wanted to
scare Brock. As to the night of the
incident, Rovida stated he went to Brock’s work to speak with him but Brock
drove to his sister’s house. Rovida
claimed Brock got out of his car and had something shiny in his hand; Rovida
claimed Brock was known to carry a knife.
Rovida said Brock moved towards him and tried to grab the gun. Rovida conceded he pulled the trigger
twice. When the Board informed Rovida
the first shot hit Brock behind the right earlobe, which suggested Rovida shot
him from behind, Rovida insisted he was standing in front of Brock.
As to
his parole plans, Rovida stated he planned to live with another daughter,
Susan, and son-in-law, Tom, and work in the family business. Although Rovida was eligible for social
security, he planned to work. Rovida had
no prior criminal record and he was discipline free in prison. Rovida recently earned his GED and had
various jobs in prison including, mechanic, yard crew, clothing worker, and
porter. Although Rovida did not have a
substance abuse problem, he attended
Alcoholic Anonymous (AA) meetings in prison. He attended an
improvement course, bridging program, and self-confrontation program. The Board noted the most recent psychological
report indicated Rovida’s insight concerning the offense was limited and
inadequate and he was a low risk of violence if released. After the Board heard from the various
witnesses and deliberated, the Board denied Rovida parole, finding he posed an
unreasonable risk of danger to society or a threat to public safety if released
from prison. The Board reasoned Rovida
followed, confronted, and executed Brock.
The Board opined Rovida was not remorseful and did not have insight into
why he killed Brock. The Board explained
that although Rovida earned a GED, he did not develop a marketable skill and
did not sufficiently participate in self-help programs, specifically an anger
management class such as Breaking Barriers.
In the
Fall of 2009, a forensic psychiatrist, Dr. K. Kropf, interviewed Rovida and
prepared a comprehensive risk assessment (the Report). The Report indicated Kropf had interviewed
Rovida and reviewed his prior mental
health evaluations. The Report
stated Rovida did not have a criminal record other than the life offense and he
remained discipline free while in prison.
The Report said Rovida earned a GED in 2005 and he was assigned to
masonry and earned a sanitation engineer certificate. Rovida informed Kropf he planned to live with
his daughter and work at the family business.
The Report indicated that although Rovida had no substance abuse history,
he participated in AA since he was imprisoned.
The Report added that he had participated in various self-help programs,
including anger management, bridging, and alternative to violence. The Report stated that when asked whether he
has any remorse, Rovida replied, “‘I never shot an animal, yet I did something
like this. That scares me. I’m sorry I did it. But Cathy will be there. I wish I never did that.’†Rovida stated he would call the police if
given another chance. Rovida explained
the freeway incident caused him to “‘snap’†and he felt his sentence was
appropriate. When asked if there was any
additional information he wanted the Board to know, Rovida replied, “‘I want
them to know about me and the family I have and the business I have. These things keep me going.’†When asked whether he had changed, Rovida
responded, “‘I am the same person.’†The
Report opined Rovida’s remorse “seems genuine[]†and he “has some insight†into
what led him to commit the life offense.
Like Rovida’s 2007 mental health evaluation, the Report concluded Rovida
was a low risk for future violence.
On
March 25, 2010, the Board held a subsequent parole consideration hearing. Rovida’s attorney informed the Board that she
advised Rovida to not speak about the life crime as he had done so at his
initial parole suitability hearing. With
respect to the facts of the crime, the Board relied on our prior nonpublished
opinion detailed above and Rovida’s probation report. In response to questions from the Board,
Rovida stated he did not think his trial was fair but he said he committed the
crime and he has “to pay for it.†When
asked if he had remorse, he replied, “Yes, I am. I know what it’s like to lose somebody you
love. I lost my wife and my mother . . .
. My wife and I had been together since
we were 14, so I know what it’s like to lose a loved one.†Rovida admitted he was afraid of Brock, but
he thought he could speak with him about what happened on the freeway. He said, “But still maybe I shouldn’t have
got involved the first time. I should
have let the police handle it the first -- I should have never went over there
and talked to them.â€
The
Board discussed briefly Rovida’s personal history and family. Rovida stated his wife and mother passed away
while he was in prison. Rovida stated he
has five children, 12 grandchildren, and three great-grandchildren.
Since
his initial parole suitability hearing, Rovida earned sanitation engineer and
masonry vocation certificates. He also
participated in Alternatives to Violence and Breaking Barriers. With respect to Alternatives to Violence, Rovida
stated he learned how to control his anger.
Rovida was a tutor in the literacy program and he mentored and
instructed other inmates in trucking. He
remained discipline free since his first hearing. The Board read portions of the Report into
the record, including the portion where Kropf opined Rovida was a low risk of
future violence.
When
the Board asked Rovida whether his conduct was right or wrong, Rovida answered,
“I would do things right, but I wouldn’t repeat the same thing. I would have to do it different.†Rovida stated Brock’s conduct towards Cathy
did not justify his death. The Board
asked Rovida whether he felt he was forced to handle the situation, Rovida repeated
he went there to speak with Brock and he then digressed into speaking about how
well his family and the business were doing.
The
Board asked Rovida about the freeway shooting, and Rovida explained, as he had
done before, that Brock drove in front of him and applied the brakes and then
slowed down and was so close to Rovida’s truck and the boat he was pulling that
Rovida could reach out the window and touch Brock’s car. Rovida explained he was scared Brock was
going to cause an accident so he decided to shoot into Brock’s rear passenger
window.
he insisted that because he was in a truck that sat higher than Brock’s car and
was so close to Brock, he shot downward and was only trying to scare Brock.
When
the Board asked Rovida about the life offense, Rovida responded, “[He] fe[lt] bad
about it.†Rovida explained he felt bad
because someone lost his life and he would like to apologize to the family
because it should not have happened.
When the Board asked Rovida about a response he provided at his mental
health evaluation, Rovida changed his previous response that there was no other
way to handle the situation. Rovida
stated there was another way, let the police take care of the situation. Rovida again stated he planned to live with
his daughter and son-in-law and work in the family business, although he is
eligible for social security benefits.
Rovida explained that in his Alternatives to Violence class, he learned
to think before he acts, count to 10, and other techniques to remain calm. When Rovida’s attorney asked him whether if
faced with the same circumstances would he act similarly, he responded he would
not because his family is more important to him “than anything that goes on in
here.â€
After
closing and witness statements, the Board concluded Rovida was unsuitable for parole
and required an additional three years of incarceration. Although Rovida earned his GED, had various
jobs, participated in self-help programs, and remained discipline free, the
Board found he poses an unreasonable risk of danger to society if released. The Board reasoned there was no evidence
Rovida acted in
self-defense and the shooting was premeditated, calculated, and for
a trivial motive. The Board stated
Rovida lacks insight into his conduct and what insight he does have, he
justifies his action and minimizes his responsibility. The Board opined it made no sense that
someone who claimed he was trying to avoid a freeway collision would then fire
a gun into a moving car on the freeway.
The Board also stated it was unbelievable Rovida went to Brock’s work at
3:00 a.m. armed with a gun for the sole purpose of speaking with him. The Board did not believe Rovida would act
differently if faced with a similar situation.
The Board stated Rovida did not show true remorse because his comments
were limited to him and his family; there was no remorse for Brock being
gone. The Board concluded by saying it
was not concerned with Rovida’s parole plans but encouraged him to continue
with self-help and anger management courses because the Board felt Rovida does
not understand what drove him to commit the crimes. The Board noted Rovida repeatedly stated his
family is more important to him than anything else. The presiding commissioner stated, “If we
released you today and similar circumstances occurred with perhaps one of your
grandchildren would you do anything different, . . . I can tell you I don’t
think you would. I think that you would
do exactly the same thing if that’s all you felt you could do.â€
In June
2011, the Orange County Superior Court filed an order denying Rovida’s petition
for writ of habeas corpus. The trial
court concluded there was some evidence in the record supporting the Board’s
decision Rovida was unsuitable for parole because he poses an unreasonable risk
of danger if released from prison.
On
August 3, 2011, 76 year-old Rovida, in propria persona, filed a petition for
writ of habeas corpus. The Attorney
General filed an informal response.
Rovida, in propria persona, responded.
The Attorney General filed a return.
Rovida, now represented by appointed counsel, filed a traverse.
DISCUSSION
restate the suitability and unsuitability factors that the Board must consider
in determining whether an inmate is suitable for parole or our standard of
review. These legal principles have been
discussed in numerous Supreme Court and Courts of Appeal opinions. (In re Shaputis (2008) 44
Cal.4th 1241, 1254-1255
(Shaputis I); In re Lawrence (2008)
44 Cal.4th 1181, 1214 (Lawrence);
182 Cal.App.4th 1279, 1297-1300.) We
will discuss, however, the California Supreme Court’s
most recent articulation of, and approach to, judicial review of parole
decisions.
In
“essential question in deciding whether to grant parole is whether the inmate
currently poses a threat to public safety.â€
(Id. at p. 220.) That essential question “is posed first to
the Board and then to the Governor, who draw their answers from the entire
record, including the facts of the offense, the inmate’s progress during
incarceration, and the insight he or she has achieved into past behavior†(id.
at p. 221), and judicial review “is conducted under the highly deferential
‘some evidence’ standard [which requires the decision be] upheld unless it is
arbitrary or procedurally flawed [based on a review of] the entire record to
determine whether a modicum of evidence supports the parole suitability
decision.†(Ibid.) Shaputis II instructs that a reviewing court may not reweigh the
evidence but must instead “consider[] whether there is a rational nexus between
the evidence and the ultimate determination of current dangerousness†(
reflecting the inmate’s present risk to public safety leads to but one
conclusion may a court overturn a contrary decision by the Board . . .
[because] [i]n that circumstance the denial of parole is arbitrary and
capricious, and amounts to a denial of due process.†(Id.
at p. 211.) The Shaputis II court concluded by saying that although the Board’s
decision on parole suitability is of course subject to judicial review, that
review is limited and narrower in scope than appellate review of a lower
court’s decision. (Id. at p. 215.)
The
although numerous Courts of Appeal had expressed concerns about the expanded
focus by the parole authority on an inmate’s lack of insight into his or her
criminal behavior as a factor to deny parole, these concerns were misplaced
because the parole authority properly considers an inmate’s “insight†when
evaluating whether the inmate currently poses a threat to public safety. As the court explained, “[c]onsideration of
an inmate’s degree of insight is well within the scope of the parole
regulations. The regulations do not use
the term ‘insight,’ but they direct the Board to consider the inmate’s ‘past
and present attitude toward the crime’ [citation] and ‘the presence of
remorse,’ expressly including indications that the inmate ‘understands the
nature and magnitude of the offense’ [citation]. These factors fit comfortably within the
descriptive category of ‘insight.’†(
218.) Indeed, Shaputis II noted even if “insight†could not be tethered to a
specific regulation, consideration of “insight†would be proper because “it is
difficult to imagine that the Board . . . should be required to ignore the
inmate’s understanding of the crime and the reasons it occurred, or the
inmate’s insight into other aspects of his or her personal history relating to
future criminality. Rational people, in
considering the likely behavior of others, or their own future choices,
naturally consider past similar circumstances and the reasons for actions taken
in those circumstances.†(
Because
Shaputis II reaffirmed
evidence†standard for judicial review is “highly deferential†(
53 Cal.4th at p. 221), the determination to deny parole based on the
inmate’s lack of insight must be affirmed if there is some modicum of evidence
to support the finding the inmate in fact lacked “insight.†The Shaputis
II court explained the term “insight†encompasses the inmate’s “‘past and
present attitude toward the crime,’†his or her “‘presence of remorse,’†the
inmate’s “‘understand [ing of] the nature and magnitude of the offense,’†and
his or her “understanding of the crime and the reasons it occurred.†(Id. at
pp. 218, 220.) With this guidance, a
court may meaningfully review whether there is some evidence to support a
determination of current dangerousness when lack of insight is the basis for
parole denial.
The
considerations in parole suitability determinations: “1. The essential question in deciding whether
to grant parole is whether the inmate currently poses a threat to public
safety. 2. That question is posed first to the Board and
then to the Governor, who draw their answers from the entire record, including
the facts of the offense, the inmate’s progress during incarceration, and the
insight he or she has achieved into past behavior. 3. The inmate has a right to decline to
participate in psychological evaluation and in the hearing itself. That decision may not be held against the
inmate. Equally, however, it may not
limit the Board or the Governor in their evaluation of all the evidence. 4.
Judicial review is conducted under the highly deferential some evidence
standard. The executive decision of the
Board or the Governor is upheld unless it is arbitrary or procedurally
flawed. The court reviews the entire
record to determine whether a modicum of evidence supports the parole
suitability decision.
5. The reviewing court does
not ask whether the inmate is currently dangerous. That question is reserved for the executive
branch. Rather, the court considers
whether there is a rational nexus between the evidence and the ultimate
determination of current dangerousness.
The court is not empowered to reweigh the evidence.†(Shaputis
II, supra, 53 Cal.4th at pp. 220-221.)
petition for writ of habeas corpus and the response to the Attorney General’s
informal response that Rovida filed in propria persona, Rovida concedes “the
egregiousness of the commitment offense[.]â€
In his traverse, filed by appointed counsel, Rovida makes no such
concession. Although Rovida recognizes
the Board “‘must consider the
statutory factors [and the regulations] concerning parole suitability,’†Rovida
fails to address the circumstances of the commitment offense.
We conclude there is some evidence to support the Board’s reliance,
in part, on the “aggravated circumstances of the commitment offense†as a basis
for its decision Rovida poses a current
danger to society. (Lawrence, supra, 44 Cal.4th at
p. 1214.) We recognize Rovida
felt Brock posed a threat to him and his family, but there is evidence in the
record from which the Board could reasonably conclude the circumstances of the
offense were especially heinous, atrocious, and cruel. Although Brock did lie in wait on the freeway
for Rovida and his family, Rovida’s actions on the freeway demonstrate a
callous disregard for human life. Rovida
insisted Brock’s unsafe and erratic driving posed a threat to Rovida and his
family. Rovida asserted that because he
was concerned Brock would cause an accident, Brock fired two gunshots into
Brock’s rear passenger window. Needless
to say, Rovida’s justification for firing a gun into another car on what was
likely a busy Southern California freeway is absurd. Rovida’s conduct endangered everyone on that
freeway, including the family members he claimed he was trying to protect. The tragedy that could have befallen innocent
bystanders is unthinkable. But this was
not the commitment offense.
The
evidence established that a week later, Rovida armed himself with a gun and
went to Brock’s work to wait for him, until 3:00
a.m. When Brock refused to speak
with him, Rovida followed Brock to his sister’s house where Rovida confronted
Brock, who was not armed. The forensic
evidence established Rovida shot Brock first from behind (the first shot struck
Brick behind the right earlobe) and then in the chest, the fatal shot. Rovida fled and did not call for emergency
personnel. The Board was free to
disbelieve Rovida that he merely wanted to speak with Brock about the freeway
incident and he acted in self-defense based on what the Board considered an
improbable story.
(In re Pugh (2012) 205
Cal.App.4th 260, 273 (Pugh) [where
inmate’s version of events inherently improbable establishes a nexus to current
dangerousness because indicates inmate hiding truth and has not been
rehabilitated sufficiently to be safe in society].) If Rovida wanted to speak with Brock, why did
he confront Brock at three in the morning armed with a gun? And if Rovida was truly afraid of Brock, why
did he confront him at all? There was a
modicum of evidence in the record from which the Board could reasonably
conclude Rovida acted dispassionately and in a calculated manner to execute
Brock and escape detection based on a trivial motive. Thus, there is a rational nexus between the
evidence of the commitment offense and the Board’s determination Rovida is
currently dangerous.
Instead
of focusing on the circumstances of the commitment offense, Rovida asserts the
commitment offense is temporally remote and his substantial rehabilitation
efforts weigh against the Board’s finding he is currently dangerous. First, we agree the commitment offense is
temporally remote—most offenses that result in a life with the possibility of
parole sentence are temporally remote.
The issue is whether the circumstances of the commitment offense
demonstrate the inmate is currently dangerous.
As we explain above, there is a nexus.
Second, we disagree with Rovida’s claim the Board did not consider and
recognize his rehabilitative successes.
The Board commended Rovida on his earning a GED in 2005, his vocational
training, his participation on self-help programs, his discipline-free record
while incarcerated, and his parole plans.
The Board noted he had a stable social history, had no mental health
problems, had no substance abuse problems, and had no criminal history before
the commitment offense. We remind Rovida
our review of the Board’s decision is limited, and we may not reweigh the
evidence. (Shaputis II, supra, 53 Cal.4th at pp. 215, 221 [when Board declines
to give credence to certain evidence, a reviewing court may not interfere
unless that determination lacks any rational basis and is merely arbitrary].)
However,
even if there is some evidence to support the finding Rovida’s murder of Brock
was committed in a cruel and callous manner (Cal. Code Regs., tit. 15,
§ 2402, subd. (c)(1)(D)), such reason would provide “some evidenceâ€
to support the ultimate conclusion and denial of parole here if there were
other facts in the record, such as Rovida’s current demeanor and mental state,
to provide a “rational nexus†for concluding his offense continues to be
predictive of current dangerousness. (
1213.) As the Lawrence court stated, “the mere existence of a regulatory factor
establishing unsuitability does not necessarily constitute ‘some evidence’ that
the parolee’s release unreasonably endangers public safety.†(Id.
at
p. 1225.) Accordingly, we
must examine the other factors the Board relied upon: Rovida’s lack of insight and lack of remorse.
Section 2402(d) states: “Circumstances Tending to Show Suitability.
[¶] . . . [¶] (3) Signs of
Remorse. The prisoner performed acts
which tend to indicate the presence of remorse, such as attempting to repair
the damage, seeking help for or relieving suffering of the victim, or
indicating that he understands the nature and magnitude of the offense.†As the
of an inmate’s degree of insight is well within the scope of the parole
regulations. The regulations do not use
the term ‘insight,’ but they direct the Board to consider the inmate’s ‘past
and present attitude toward the crime’ [citation] and ‘the presence of
remorse,’ expressly including indications that the inmate ‘understands the
nature and magnitude of the offense’ [citation]. These factors fit comfortably within the
descriptive category of ‘insight.’†(
218.)
We
conclude there is some evidence to support the Board’s reliance, in part, on
Rovida’s lack of insight and lack of remorse as a basis for its decision Rovida
poses a current danger to
society. Although Rovida declined to
speak about the offenses as was his right, there was evidence he failed to
understand the danger he created by firing a weapon on the freeway. The Board opined “[i]t makes absolutely no
sense[]†that someone trying to avoid an unsafe driver would fire a weapon at
the unsafe driver. The Board found it
telling Rovida failed to understand he placed his family and innocent
bystanders in danger. More importantly,
there was evidence he lacked insight into the commitment offense. The evidence demonstrated Rovida camped at
Brock’s work armed with a gun and then chased him down and shot him twice, once
behind the right ear. The Board relied
on this evidence to conclude Rovida shot Brock from behind and then shot him in
the chest. This was some evidence from
which the Board could reasonably conclude Rovida did not act in self defense
and his version of the events was inherently improbable. (Pugh,
supra, 205 Cal.App.4th at p. 273 [where inmate’s version of events
inherently improbable establishes a nexus to current dangerousness because indicates
inmate hiding truth and has not been rehabilitated sufficiently to be safe in
society].)
Finally,
Rovida’s statements at the hearing indicate his remorse was limited and
insincere. Although Rovida acknowledged
he should have called the police and he was sorry, many of his statements were
directed at the remorse he felt towards his family. Rovida often spoke of how Brock terrorized
him and his family, and this led the Board to conclude that despite Rovida’s protestations
to the contrary, the Board felt that if Rovida faced a similar situation, he
would act the same way. Rovida continued
to blame Brock and minimized his own conduct.
In other words, based on its observations of Rovida during the hearing,
the Board did not believe Rovida was truly remorseful. (Lawrence,
supra, 44 Cal.4th at p. 1213 [Board may consider current attitude];
780, 806 [Board may consider inmate’s behavior at parole hearing].) Thus, there is a rational nexus between the
evidence of Rovida’s lack of insight and lack of remorse and the Board’s
determination Rovida is currently dangerous.
In arguing the Board erred in
concluding he lacked insight into the commitment offense, Rovida relies on the
Report, his rehabilitative efforts, and the regulation that prohibits a Board
from requiring an inmate to admit guilt.
Both
in 2007 and 2010, Rovida was judged to be a low risk of future violence. In the Report, Kropf stated that when asked
whether he felt remorse, Rovida replied he was sorry. Kropf opined “His remorse seems
genuine.†Kropf opined, “Rovida has
him to commit his controlling offense.â€
(Italics added.) Yet when asked
whether he had changed since his imprisonment, Rovida replied, “‘I am the same
person.’†Although Rovida was twice
judged to be a low risk of violence, the Report alone does not establish Rovida
had insight into his crime and was truly remorseful. After attending numerous self-help programs,
Rovida said he was the same person pre- and post-incarceration. That does not inspire confidence Rovida
understood why he committed the life offense or that he would act differently
if presented with a similar situation.
Rovida’s attitude has not evolved in a positive manner that supports
parole. (
268.)
With
respect to Rovida’s rehabilitative efforts, we too commend him on his
substantial accomplishments. That he
obtained his GED when he was approximately
70 years old, continued to develop
vocational skills, and mentor other inmates is commendable. Also commendable is the fact he remained
discipline free for over
20 years. We are particularly impressed he volunteered
over 200 hours as a literacy program tutor.
But as we explain above, when the Board declines
to give credence to certain evidence, we may not interfere unless that
determination lacks any rational basis and is merely arbitrary. (Shaputis
II, supra, 53 Cal.4th at pp. 215.)
The Board’s decision was not arbitrary as there was a modicum of
evidence the commitment offense and Rovida’s lack of insight and lack of
remorse demonstrate he was currently dangerous.
Finally,
the Board did not
require Rovida to admit guilt, nor did the Board hold against him his refusal
to discuss the facts of the commitment offense.
(Pen. Code, § 5011, Cal. Code Regs., tit. 15, §
2236.) Rather, the Board looked beyond his
expressions of remorse and willingness to be accountable, and examined his
mental state and attitude about the commitment offense, to determine whether he
demonstrated a truthful appreciation for the wrongfulness of the act. As we explain, there is some evidence Rovida
did not.
One
final thought. Because of the lengthy
prison sentences in parole suitability cases, the inmate’s age could be a
factor in determining whether an inmate poses a current danger to society.
That is no different here—Rovida is now 77 years old. Does Rovida’s advanced age demonstrate he is
no longer a danger to society despite the Board’s decision the commitment
offense and his lack of remorse and insight establish he is currently
dangerous? Rovida testified he wears
glasses and uses eye drops but is otherwise in good health. We cannot say that an
inmate no longer poses a current danger to society based only on the fact he is
in his mid-70s without evidence the inmate is physically incapacitated. (See In
re Morganti (2012) 204 Cal.App.4th 904.)
DISPOSITION
The
petition for writ of habeas corpus is denied.
O’LEARY,
P. J.
I CONCUR:
IKOLA, J.
>
MOORE,
J., Dissenting.
I
respectfully dissent. James Rovida, Jr.,
a 77-year old man who lived a crime free life for 55 years before committing a
murder that sent him to prison, and who in the more than 22 years since has led
an exemplary life with absolutely no write-ups or discipline in prison, was
denied parole for the second time because the Board of Parole Hearings found
Rovida was not remorseful and did not have insight into why he killed his
son-in-law, Robert Brock. I have no
dispute with the announced very deferential standard of review. (In re
Shaputis (2011) 53 Cal.4th 192, 209-210.)
I just do not find a “‘modicum of evidence’†(id. at p. 210) in this case supporting the conclusion on the part
of the Board that the 77-year old Rovida, given the facts of this case, would
pose an “unreasonable†risk to public safety.
(Cal. Code Regs., tit. 15, § 2402.)
Brock
had abused Rovida’s daughter, Cathy.
When the Rovidas gave Cathy and the children shelter, Brock threatened
to burn down their house. He tampered
with the Rovidas’ truck and mailbox, and was laying in wait on an emergency
freeway exit knowing the family was going on vacation. Rovida fired two shots after Brock cut in
front of the family’s truck shouting they would never get to their destination.
With regard to this incident, the jury convicted Rovida of attempted
voluntary manslaughter, a result the jury would not have reached unless it
found Rovida lacked malice as the result of sudden quarrel or heat of
passion. More than likely the jury’s
verdict indicated it believed Rovida had a good faith, albeit unreasonable
belief, in the need for self-defense.
(See People v. Blacksher
(2011) 52 Cal.4th 769, 832-833.) The
next week, however, Rovida went to Brock’s workplace, followed him home and shot
and killed him. For this crime, he was
convicted of first degree murder.
At
his parole hearing, Rovida expressed remorse and apologized to Brock’s
family. A psychiatrist’s report states
Rovida’s remorse “seems genuine.â€
Assessment evaluations report he poses a low risk for future
violence. He said he plans to live with
another daughter and her husband, and work in the family business, even though
he is eligible to collect social security benefits.
Needless
to say, the nature of the commitment offense will rarely provide a basis for
finding current dangerousness when there is no other evidence of current
dangerousness and strong evidence of rehabilitation (In re Lawrence (2008) 44 Cal.4th 1181, 1211), and I find no
evidence of a lack of insight. Because
such evidence is lacking and Rovida meets all
applicable circumstances tending to show suitability for release listed in the
California Code of Regulations, title 15, section 2402, subdivision (d), I
cannot join my colleagues in upholding the Board’s denial of parole.
MOORE,
J.
name="_ftn1" title="">[1] The
facts of the case are taken from our previous nonpublished case
People v. Rovida (Dec. 23, 1991,
G009997).
name="_ftn2" title="">[2] Although
we are not reviewing the Board’s denial of parole at the initial consideration hearing, we provide a brief discussion as it
relevant to the Board’s decision at the subsequent
consideration hearing.
