In re Tapia















Filed 6/25/12 In re Tapia CA4/3













>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FOURTH
APPELLATE DISTRICT



DIVISION
THREE




>

In re ALEX TAPIA on Habeas Corpus.

G046142 (Super. Ct. No. M-13363) O P I N I O N

Appeal from an order of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Craig E. Robison, Judge. Reversed.

Kamala D. Harris,
Attorney General, Jennifer A. Neill, Assistant Attorney General, Julie A.
Malone and Christopher J. Rench, Deputy Attorneys General, for Appellant State
of California.

Frank Ospino, Public
Defender, Jean Wilkinson, Chief Deputy Public Defender, Mark Brown, Assistant
Public Defender, and Christine McDonald, Deputy Public Defender, for Respondent
Alex Tapia.



*
* *

Introduction

Alex
Tapia was convicted of first degree
attempted murder, conspiracy to commit murder, and kidnapping, and was
sentenced to 26 years to life, with the possibility of parole. After serving more than 15 years in prison,
Tapia appeared before the Board of Parole Hearings (the Board) for his first
parole hearing. The Board concluded that
Tapia was not suitable for parole because he posed an unreasonable risk of
danger to public safety. Tapia filed a
petition for a writ of habeas corpus, which the trial court granted.

Under
the relevant legal standards for
reviewing the Board’s decisions, we conclude there was some evidence supporting
the Board’s decision that Tapia was not suitable for parole, and we therefore
reverse the trial court’s order.

Statement of Facts and Procedural History

In
1993, Tapia attempted to kill Salvador Vega.
Vega paid $3,300 to repair a motorcycle Tapia had damaged; two or three
months before the crime, Vega had begun demanding that Tapia pay him back. Two weeks before the crime, Tapia discussed
killing Vega with a friend, identified only by his moniker, “Psycho.” Two days before the crime, Tapia decided to
murder Vega.

On
the day of the crime, Tapia borrowed Vega’s car and drove him to work. Tapia and Psycho picked up Vega after work,
and told Vega to drive to a location where Tapia would obtain the money he
owed. Tapia was seated in the backseat,
directly behind Vega, who was in the driver’s seat; Psycho was seated in the
front passenger seat. When Vega parked
the car, Tapia slipped a jump rope around Vega’s neck and strangled him, while
Psycho stabbed him multiple times. When
Vega lost consciousness, Tapia and Psycho thought he was dead, placed his body
in the trunk of the car, and then drove away.
Vega regained consciousness, pried open the trunk, and escaped.

Tapia
fled to Mexico. He returned to California
eight months later and surrendered himself to police. Tapia was convicted of first degree attempted
murder with personal use of a deadly weapon, conspiracy to commit murder, and
kidnapping. He was sentenced to 26 years
to life in prison, with the possibility of parole.

In
November 2010, after more than 15 years in prison, Tapia appeared for his first
parole-suitability hearing before the Board.
The Board considered the findings of an April 2010 psychological
evaluation of Tapia, performed by forensic psychologist, Dr. K.
Kropf. The evaluation noted that Tapia
had accepted responsibility for the crime and acknowledged that it was wrong
and a cowardly act; Tapia agreed that his sentence was appropriate and he
“deserve[d] everything I received.” Dr.
Kropf opined that Tapia’s remorse for the crime was genuine, and found Tapia
was able to articulate the effect his criminal acts had on Vega and
others. With respect to Tapia’s insight
into what had caused him to commit the crime, Dr. Kropf noted: “Mr. Tapia seems to have developed insight
into the more prominent factors that contributed to his commission of his life
crime. He stated that he had poor
communication and coping skills. He also
indicated that his substance abuse was causing him to ‘shut down’ and
experience ‘pressure’ at school, interpersonally, and at home. . . .
His insight notwithstanding, his choice to withhold information regarding the
identity of his co-offender suggests that his commitment to that individual
exceeds his commitment to the community.”
Dr. Kropf concluded, “[a]fter weighing all of the data from the
available records, the clinical interview, and the risk assessment data, it is
opined that Mr. Tapia’s risk for violence in the free community falls in the
low range.”

Tapia
had a single disciplinary action while in prison, for possessing inmate‑manufactured
alcohol in January 1999; he had remained free from discipline since then. While incarcerated, Tapia obtained his
general equivalency diploma, an associate of arts degree in liberal arts, and a
paralegal certificate. He earned vocational
certificates in several different areas, and took advantage of self-help
programs such as Alcoholics Anonymous, a parenting class, anger management
classes, stress management classes, and job training. Tapia also volunteered as a tutor in a
literacy program and as a mentor to other inmates regarding href="http://www.mcmillanlaw.com/">substance abuse and anger management.

Tapia
had viable plans for parole, both in the United
States and Mexico.

The
Board concluded Tapia was not suitable for parole because he had not taken full
responsibility for his crime, and therefore posed an unreasonable risk of
danger to public safety. The factors on
which the Board relied were Tapia’s downplaying of the planning elements of the
crime, and his failure to disclose Psycho’s identity before the parole‑suitability
hearing.href="#_ftn1" name="_ftnref1" title="">[1] The Board determined that Tapia required at
least three more years of incarceration before his next parole hearing.

Tapia
filed a petition for a writ of habeas corpus challenging the Board’s denial of
parole. The trial court issued an order
to show cause; the Attorney General filed a return, and Tapia filed a
traverse. Without conducting an
evidentiary hearing, the trial court issued an order granting the petition for
a writ of habeas corpus. The Attorney
General timely appealed. This court
granted the Attorney General’s petition for a writ of supersedeas, staying the
trial court’s order that the Board conduct a new parole hearing within 120
days.

Relevant Law

The
Board is charged with determining whether a prisoner sentenced to life with the
possibility of parole is suitable for release.
(Pen. Code, § 3041; Cal.
Code Regs., tit. 15, § 2402.) The
Board normally sets a date for release after the parole hearing “unless it determines that the gravity of the
current convicted offense or offenses, or the timing and gravity of current or
past convicted offense or offenses, is such that consideration of the public
safety requires a more lengthy period of incarceration for this individual, and
that a parole date, therefore, cannot be fixed at this meeting. . . .” (Pen. Code, § 3041, subd. (b).)

“name=clsccl16>[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.]” (>In re Lawrence (2008) 44 Cal.4th 1181,
1212.) “When reviewing a parole
unsuitability determination by the Board or the Governor, a court must consider
the whole record in the light most favorable to the determination before it, to
determine whether it discloses some evidence—a modicum of evidence—supporting
the determination that the inmate would pose a danger to the public if released
on parole.” (In re Shaputis (2011) 53 Cal.4th 192, 214.)

“Only a modicum of evidence is required. Resolution of any conflicts in the evidence
and the weight to be given the evidence are matters within the authority of the
Governor [or the Board]. As with the
discretion exercised by the Board in making its decision, the precise manner in
which the specified factors relevant to parole suitability are considered and
balanced lies within the discretion of the Governor [or the Board], but the
decision must reflect an individualized consideration of the specified criteria
and cannot be arbitrary or capricious.
It is irrelevant that a court might determine that evidence in the
record tending to establish suitability for parole far outweighs evidence
demonstrating unsuitability for parole.
As long as the Governor’s [or the Board’s] decision reflects due
consideration of the specified factors as applied to the individual prisoner in
accordance with applicable legal standards, the court’s review is limited to
ascertaining whether there is some evidence in the record that supports the
Governor’s [or the Board’s] decision.” (>In re Rosenkrantz (2002) 29 Cal.4th 616,
677.)

“In sum, the Penal Code
and corresponding regulations establish that the fundamental consideration in
parole decisions is public safety [citations], and our discussion in both Rosenkrantz
and [In re] Dannenberg [(2005)
34 Cal.4th 1061] emphasized this point.
Moreover, it is apparent from the foregoing discussion that the core
determination of ‘public safety’ under the statute and corresponding
regulations involves an assessment of an inmate’s current
dangerousness. As noted above, 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. [Citations.]”
(In re Lawrence, >supra, 44 Cal.4th at pp. 1205-1206.)

Most recently, the Supreme Court summarized
the key considerations for courts reviewing parole‑suitability
determinations by the Board: “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. [¶] . . .
[¶] 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.” (In re
Shaputis, supra, 53 Cal.4th at
pp. 220-221.)

“When
a superior court grants relief on a petition for habeas corpus without an
evidentiary hearing, . . . the question presented on appeal is a
question of law, which the appellate court reviews de novo.” (In re
Lazor (2009) 172 Cal.App.4th 1185, 1192.)

Discussion

Is there a rational nexus between the
evidence and the Board’s determination that Tapia was unsuitable for parole
because his failure to take full responsibility for the crime made him an
unreasonable threat to public safety?
Having reviewed the entire record, we conclude the answer to this
question is yes.

Tapia disclosed the identity of his
coconspirator, previously known only as Psycho, at the parole hearing.href="#_ftn2" name="_ftnref2" title="">[2] The Board found the failure to disclose
Psycho’s identity until that date was evidence of Tapia’s unsuitability for
parole. “You did give the name today of
your crime partner to the District Attorney, however, it is still not clear to
this Panel why you chose today. We think
it’s important that you came forward. We
certainly do. But the one thing that we
did notice, Mr. Tapia, you’re not an ignorant person. You’re intelligent. And whether or not it was, in my terms here,
reading the tea leaves, looking at the href="http://www.sandiegohealthdirectory.com/">psychological report, taking
into account what the psychologist told you as to you[r] unwillingness to
disclose your crime partner, the fact of the matter is you came forward today,
and you are to be commended for that.
But the thing that’s troubling about that is that you have been
incarcerated for a number of years. And
with the violent nature of the commitment offense, to have an individual who
took it upon himself after you and he planned to kill Mr. Vega still walking
around in our communities and the risk that you put the community at is really
troubling to this Panel. It demonstrates
again that, at least to this Panel, you say you’re taking full responsibility,
but by not disclosing your crime partner in an attempt to protect society from
a further act of violence, you’re really not taking responsibility for your
actions.”

Tapia’s failure to identify Psycho until the
day of the parole hearing permitted Psycho to remain free from punishment for
his part in the attack on Vega for at least 17 years, might have allowed a
dangerous criminal to remain on the streets as a threat to public safety, and
neglected Tapia’s societal obligation to protect the public by reporting href="http://www.fearnotlaw.com/">criminal activity. (See, e.g., Roberts v. United States (1980) 445 U.S. 552, 558 [“gross
indifference to the duty to report known criminal behavior remains a badge of
irresponsible citizenship”].)href="#_ftn3"
name="_ftnref3" title="">[3] As Dr. Kropf noted in the evaluation of
Tapia for the parole hearing, Tapia’s “choice to withhold information
regarding the identity of his co-offender suggests that his commitment to that
individual exceeds his commitment to the community.” Tapia’s lack of commitment to the community
was a factor the Board could appropriately consider in determining whether
Tapia was suitable for parole.

Tapia
relies on In re Elkins (2006) 144
Cal.App.4th 475, 495, for the proposition that the acceptance of responsibility
for the crime, no matter how recent, works in favor of release on parole. Whether In
re Elkins can be read to apply to acceptance of full responsibility made on
the day of, and in fact during a break in, the parole hearing is not a decision
we need to make. In that case, the
defendant had accepted full responsibility for the crime more than a decade
before the parole hearing. (>Ibid.)
This case differs because Tapia did not simply have a late acceptance of
full responsibility; he was late in providing the identity of his coconspirator
in an attempted murder. Failing to
provide the identity of a violent criminal for 17 years after the crime is
committed constitutes an ongoing threat to public safety throughout that time
period, and is some evidence of Tapia’s unsuitability for parole.

There
was also some evidence of Tapia’s downplaying of the planning elements of the
crime, justifying the Board’s conclusion that Tapia was unsuitable for
parole. An inmate’s downplaying or
minimizing aspects of the commitment offense reflects a denial of responsibility,
and is probative of current dangerousness.
(In re Shippman (2010) 185 Cal.App.4th 446, 461 [the defendant’s
“repeated denials or downplaying [of his controlling nature toward women
resulted in violence] support an inference that he remains a threat to public
safety”].)

In
In re McClendon (2003) 113
Cal.App.4th 315, 321-322, the court concluded there was some evidence
supporting the Governor’s denial of parole based on the defendant’s failure to
accept full responsibility for his crime, despite the defendant’s admission he
killed his wife. “Petitioner wore rubber gloves when he barged
uninvited into his wife’s home, wielding a gun and wrench that he used to
kill his wife and bludgeon her companion.
Petitioner maintains that he simply wanted to show his new gun to his
estranged wife, and that the gloves, wrench, and industrial acid were brought
for household chores. Petitioner’s
explanations may be true, and he certainly cannot be compelled to admit premeditation. However, there is at least some evidence that
petitioner has not fully accepted responsibility for his actions in
precipitating a deadly attack, even if his purpose in bringing a loaded gun
with him was innocent. [¶] Similarly,
the Governor was free to regard petitioner’s characterization of Bynum’s [(the
companion’s)] injuries as ‘some scrapes, cuts, abrasions,’ as a demonstration
that petitioner fails to apprehend the magnitude of his crime. Petitioner elsewhere concedes that he
‘probably would have tried’ to shoot Bynum if petitioner’s gun had not jammed,
and does not deny that he struck Bynum in the head with the wrench two or three
times. Bynum and the apartment wall were
blood splattered when the police arrived.
Despite these facts, and petitioner’s acknowledgement of them, he still
minimized Bynum’s injuries when testifying before the Board. Petitioner’s dismissal of Bynum’s
injuries as ‘some scrapes, cuts, abrasions,’ is ‘some evidence’ that petitioner
does not understand the magnitude of his offense.” (Id.
at p. 322.)

Here, Tapia told the Board he had decided to
kill Vega, but had not developed a plan or taken steps to coordinate with
Psycho as to how the murder would occur.
In contrast, the Board had before it evidence that Tapia considered
killing Vega 12 days before, and actually made the decision to kill him two
days before, the crime was committed.
Tapia convinced Vega to drive his own car to a deserted parking lot;
Tapia seated himself behind Vega rather than driving the car himself. Tapia and Psycho had planned the attack well
enough that Psycho stabbed Vega while Vega was being strangled by Tapia. The probation report prepared for Tapia’s
sentencing hearing found that “[t]he manner in which the crime was carried out
indicates planning,” the crime “was premeditated and planned,” and the
circumstances of the crime “impl[y] the defendant was in a position of
leadership as far as this offense is concerned.”

The Board found Tapia’s statements at the
parole hearing not to be credible:
“[T]his Panel really finds that hard to believe with respect to—[i]f
you’ve taken the steps to solicit and enlist the help of [Psycho], you’ve made
the decision that you’re going to kill somebody. And then to sit here before this Panel and
say that you really didn’t have a plan really seems a little bit disingenuous,
which again would demonstrate to this Panel that you really haven’t explored
the nature and magnitude of the offense or explored the causative factors for
why you committed the . . . attempted murder of Mr. Vega, which
again would demonstrate to this Panel that you would currently pose an
unreasonable risk to public safety.”

>In
re Palermo (2009) 171
Cal.App.4th 1096, cited by Tapia, does not compel a different result. In that case, the Court of Appeal held the
defendant’s continued insistence that the killing of his girlfriend was
unintentional, despite accepting responsibility for the crime, did not support
the Board’s finding that he remained a danger to public safety. (Id.
at p. 1112.) “[D]efendant’s version of
the shooting of the victim was not physically impossible and did not strain
credulity such that his denial of an intentional killing was delusional,
dishonest, or irrational.” (>Ibid.)
Tapia contends his version of the attack on Vega—that he had decided to
kill Vega but had otherwise not made any plans as to how to accomplish the
killing—was not physically impossible and did not strain credulity. The rule of In re Palermo has been called into question by the Supreme Court’s
decision in In re Shaputis, >supra, 53 Cal.4th at pages 214-215, in
which the court held the record must be viewed in the light most favorable to
the Board’s decision, and that when “the parole authority declines to give
credence to certain evidence, a reviewing court may not interfere unless that
determination lacks any rational basis and is merely arbitrary.” The Board’s decision in this case does not
lack any rational basis, and is not merely arbitrary.

Disposition

The
order granting the petition for a writ of habeas corpus is reversed. The matter is remanded with directions to the
trial court to enter an order denying the petition for a writ of habeas
corpus. Upon such denial, the stay
imposed by this court’s order granting the Attorney General’s petition for a
writ of supersedeas shall be lifted.







FYBEL,
J.



WE CONCUR:







ARONSON, ACTING P. J.







IKOLA, J.