In re Oropeza

Filed 1/27/09 In re Oropeza 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In 1991, Hector Arturo Oropeza was convicted of second degree murder (Pen. Code, 187) and sentenced to an indeterminate prison term of 15 years to life. This court affirmed Oropezas conviction in a nonpublished opinion filed October 7, 1993. (People v. Menchaca et al. (H009479).)

In 2006, the Board of Parole Hearings (Board) refused to set a parole date and Oropeza petitioned the superior court for a writ of habeas corpus.

The superior court granted Oropezas petition and ordered the Board to hold a further hearing, instructing the Board to weigh [Oropezas] crime against instances of first degree murder and provide perspective instead of conclusory labels when characterizing the crime. Warden Robert Ayers[1] appeals. We granted appellants request for a writ of supersedeas, staying the order of the superior court pending our decision in this case.

After briefing was complete, but prior to oral argument, the California Supreme Court issued two decisions, In re Lawrence (2008) 44 Cal.4th 1181 and In re Shaputis (2008) 44 Cal.4th 1241, relevant to the issues presented in the instant appeal. Accordingly, we requested and received supplemental briefing from the parties to address those decisions.

Having independently examined the record before the superior court, we disagree with its conclusions that the Boards reasons for denying parole are not supported by some evidence to support a finding that Oropeza remains a threat to public safety.[2] Accordingly, we shall reverse.

I. Factual and Procedural Background

A. The commitment offense[3]

On March 1, 1991, at about 9:30 or 10 p.m., Richard Figueroa and his brother Dennis were at a restaurant and nightclub in San Jose. Richard was a regular customer of the restaurant.

At the restaurant, Richard and Dennis were joined by Gus Toumi and Brenda Butler. At about 2 a.m., Richard, Dennis, Toumi, Butler, and Susan Douglass (a waitress at the restaurant) left the restaurant for Butlers condominium apartment.

Douglass had been working at the restaurant for a week or two. She had seen Richard there three or four times. On this night, Richard had asked her to dance several times.

Douglass testified that Richard had asked her to go out with him that night; that after some changes in plans, they decided to go with the others to Butlers condominium; that before leaving the restaurant that night, she had asked the bartender and the doorman about Richard and was told that Richard was safe to be around and that he was well-liked at the restaurant.

Richard and Douglass rode together in Douglasss car, which Douglass drove. Richard sat in the front passenger seat. Butler, Toumi, and Dennis rode in Butlers car, which Butler drove. Because neither Richard nor Douglass knew the way to Butlers apartment, Douglass was to follow Butler.

As Butler approached the exit ramp on Capitol Expressway, two men in a blue Honda Civic pulled abreast of her car on the left. The passenger in the Honda was yelling at Butler and her companions and flipping [them] off. Toumi responded by yelling back and returning the obscene gesture.

Butler pulled over at South Side. Butler said she stopped because she wanted to wait for Douglass, and also because she did not want the Honda to follow her to her home.

A minute or two later, the Honda pulled up behind Butler. Douglass also arrived and pulled up behind the Honda. The Honda moved up slowly until it was beside Butlers car.

Butler told Toumi she did not want the Honda following her to her apartment and to tell Douglass they were not going there until the Honda left. Toumi got out of Butlers car and went to Douglasss car. While Toumi was out of Butlers car, the passenger in the Honda formed a gun with his hand by pointing the index finger at Butler and curling up the three next fingers. Scared, Butler drove off, leaving Toumi behind. Toumi testified that before Butler drove off, he had heard Butler scream: Oh my god, hes got a knife.

Butler identified Menchaca as the driver of the Honda, and Oropeza as the passenger.

The Honda followed Butler. Butler drove past the entrance to her apartment complex, turned off her lights, pulled into someones driveway, and used the emergency brake so that her brake lights would not come on.

About 20 seconds later, the Honda pulled over about a house down on the other side of the street. Thinking she had been spotted, Butler fled again. Butler saw the Honda turn around to follow her. Butler accelerated her speed to lose the Honda, and drove back to her apartment complex. When she saw no one behind her, Butler opened the garage door with her automatic garage door opener, pulled in, and closed the garage door. She and Dennis then went up to her apartment.

Meanwhile, at South Side, after Butler had left, Toumi jumped into Douglasss car and asked her to follow Butler. Douglass saw Butler pull into a driveway with her lights off. Douglass also saw Butler back out of the driveway and take off. Douglas [sic] tried to follow Butler, who was driving fast.

Mistakenly, Douglass turned right off South Side onto a dead end street. She made a U-turn and came back. On the way back, she heard two loud thumps striking the rear of the drivers side of her car. Douglass pulled over to find out what had happened.

As Douglass walked toward where she thought the car was hit, the Honda pulled up next to her. The passenger, whom Douglass identified as Oropeza, was holding a knife that had a blade of about four inches long and an inch wide.

Douglas [sic] jumped in her car and sped off to follow Butler. The Honda followed Douglass. Douglass turned onto South Side and pulled into a parking lot near Butlers apartment. Douglass thought she had lost the Honda because she did not see headlights behind her.

Twenty seconds later, the Honda pulled up behind Douglass and blocked her rear by parking perpendicularly to Douglasss car.

Appellants sprang out of the Honda and ran up to Douglasss car. Richard got out of Douglasss car and walked toward its rear. Richard held his hands palms up as if to ask what the problem was. Richard was not armed. Before Richard could go past Douglasss car, appellants, without saying anything, attacked him. Appellants were moving their arms rapidly, as if punching Richard in the stomach. They struck him about a dozen times each. The attack happened quickly, and was over in about 30 seconds.

Appellants ran back to their car, jumped in, and drove off.

Seven witnesses saw the attack: Douglass, Toumi, Butler, and four neighbors of Butler who saw the attack from their homes.

After the attack, Richard walked back to Douglasss car and looked at Douglass. Douglass, who was seated in her car, got out of the car and ran around the back of her car to Richard. Before Douglass could reach Richard, Richard fell to the ground on his back. Richard died at the hospital at 4 a.m.

Richard received a total of 23 knife wounds. The wounds had two different patterns. Dr. Angelo Ozoa, who performed the autopsy, testified that this difference in patterns was consistent with the possibility that there were two assailants using similar weapons.

In their defense, appellants presented a different version of the facts, but because the appeal does not question the jurys findings, we need not recite appellants version.

B. Procedural background

Oropeza[4] was charged by amended information with murder. The information further charged Oropeza with personal use of a deadly weapon, a knife, in committing the crime. Oropeza pleaded not guilty.

During trial, the court granted the Peoples motion to dismiss the weapon-use allegation against Oropeza. The jury found Oropeza guilty of second-degree murder, and the superior court sentenced him to 15 years to life.

Oropezas minimum eligible parole date was June 7, 2001. His most recent parole consideration hearing was held on December 1, 2006.

i. The December 1, 2006 parole hearing

At the 2006 hearing, the Board considered documentary history of Oropezas commitment offense,[5] Oropezas statements at the parole hearing, records of his incarceration and letters of support from friends and family. We summarize the evidence below.

a. Oropezas testimony

Oropeza discussed the commitment offense at the hearing, explaining that he had been drinking beer and vodka prior to the stabbing and was basically drunk towards the end of the night. He noted that the victim and the victims friends were also drunk that night. After he and his companion got into an argument with the victim and the victims friends, Oropeza and his companion drove to a friends house, but Douglass followed them. Oropeza exited the vehicle in which he was riding and hid behind a fence. Oropeza stated that Douglass stopped across the street and someone in her car started taunting him, so Oropeza threw a rock at Douglasss car. After Oropeza got back in the car to leave, and he and the driver were making a U-turn, Douglass came back, got out of her car and started yelling at Oropeza, saying that he Fd up throwing rocks at my car. Oropeza said that Douglass threatened him, calling him a Fing Mexican, and said she would blow [his] Fing Mexican head up--off. After Douglass made a threat about returning with a .45-caliber, Oropeza claims he saw a knife in the glove compartment of the vehicle he was in, so he held it up and told her to [g]et the fuck out of here. After Douglass drove off, however, Oropeza and his companion followed her. When Douglasss vehicle stopped again, Oropeza said that Richard got out and he and Richard got into an argument, which turned into a fistfight and then Oropeza stabbed him. Oropeza stated that he felt like I had to get [Richard] off of me, but as I realized what I was doing, right away I immediately, What the hell am I doing? And we both stopped. . . . [I]mmediately when I realized what I was doing, because I knew I was stabbing him in the leg, I--because when he was on me, I started stabbing in the leg, I stabbed him in the leg three times, and near the bottom of his foot, because I was on the bottom, and then I stabbed him in the knee . . . . [A]nd I stopped, and we looked at each other, and I asked, . . . Why? And he didnt answer, . . . and then we both just stood there and looked at each other. Oropezas friend yelled, Come on, lets go, and Oropeza apologized to Richard and then ran. When asked why he did not help Richard, Oropeza explained that other people were around, and that Richard was standing up and walk[ed] away when Oropeza left. After reading in the newspaper how many times (23) he had stabbed Richard, Oropeza said, I couldnt believe it. It was just like my adrenaline mustve took over or something.

When asked by the Board if he was angry during the incident, Oropeza said that he was at first, but the situation was getting out of hand, it was silly, because there was an argument going back and forth . . . It was silliness. He thought it was a cat and mouse game going on. Oropeza advised the Board that, at his trial, the victims brother testified that even he believed the victims friends overreacted.

b.Social history, criminal record, parole plans

Oropeza was born on July 27, 1964, making him 26 years old at the time of the crime and 42 years old at the 2006 parole hearing. He was the eighth of 11 children, three of whom died before Oropeza was born. Oropeza remains close with his siblings, and his sisters visit him often, as do his nieces, and nephew. Oropeza has been married since 1991, and has three children, and his wife and children also visit him frequently.

Oropeza is a high school graduate, does not have a juvenile record and his adult record, other than the commitment offense, consists of two convictions for driving with a suspended license. When asked how he lost his license, Oropeza indicated that he had too many speeding tickets.

Oropeza plans to live with his wife at her home in San Jose, where she lives with her father, and the Board reviewed a letter from Oropezas wife supporting those plans. The Board noted also that Oropeza had several letters of support from his family, including an offer of employment at his sisters pizza parlor. Oropezas file contained a letter from his vocational instructor, Keith Vaughn, who wrote that he would assist Oropeza in becoming an apprentice with the sheet metal workers union.

c. Institutional behavior

Oropeza was received by the Department of Corrections on February 18, 1992. During his incarceration, Oropeza had four reports of minor counseling incidents (CDC 128s).[6] The most recent of these was in 2000. He had one report of more serious misconduct (CDC 115), which was issued on April 15, 1995, for trafficking contraband.

Oropeza obtained an Associate of Arts degree from Patten University and attended and completed various San Quentin college programs while incarcerated. In addition, Oropeza has attended the Laubach Action Tutor Training workshop, the Restorative Justice seminar, the Entrepreneur Development class, and various other prison self-help programs including Alcoholics Anonymous, as well as classes related to communicable diseases, such as tuberculosis, HIV/AIDS and hepatitis.

In terms of vocational training, Oropeza obtained certifications in sheet metal, CAD drafting and mechanical drafting.

d. Psychological factors

The Board noted that the April 28, 2006 psychological report indicated that there was no indication of psychological disorder other than alcohol abuse and that the examiner concluded that Oropezas potential for violence would be low in a controlled setting, although he should continue in substance abuse treatment while in the community with an emphasis on relapse prevention. According to the Board, the report also included a section entitled Level of Insight and Remorse, in which the evaluator indicated that Oropeza expressed remorse for his crime and insight into the attitudes and behavior that led to his crime.

e. Opposition by the Santa Clara County District Attorney and the San Jose Police Department

A representative from the Santa Clara County District Attorneys office appeared via video conference to argue against granting parole. A letter from the San Jose Police Department described the crime, then stated, We would recommend that Mr. Oropeza [serve] the maximum sentence prescribed by law.

f. The Boards decision

The Board concluded that Oropeza was not yet suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The Board found, as follows: the commitment offense was carried out in an especially cruel and callous manner, and it was carried out in a very dispassionate and calculated manner. We find that the victim was abused or defiled based on the 23 stab wounds. It was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering, and the motive of the crime is inexplicable or very trivial in relation to the offense . . . . Sir, you admitted that after what in your words were a cat and mouse game, and where you and your crime partner had had [sic] basically boxed in the other car. You exited the car, you were apparently the only one that had a weapon in your hand, and you proceeded to get into a fight with the victim, Mr. Figueroa, where you ended up inflicting somewhere between 15 to 23 stab wounds in the victim, which ended up resulting in his death, and you even stated that after that you stood there staring at each other, and because your crime partner said, Lets go, you made the decision to turn around and leave the premises without seeking any type of help or concern for the victim. As stated previously, you dont--you do not have any prior criminality, no real arrests. We find that misconduct while incarcerated includes the four 128 counseling chronos. Even though you dispute the one that we stated that you had on October of 01, we do have to go by what is in this--in your C-File, but so you do have a total of four, and then you have one serious 115 disciplinary that dates back to April of 95 for trafficking and contraband. The psychological report that is dated April 28th of 2006 . . . is supportive, but most importantly, the panel finds that the inmates behavior at the hearing today was not consistent with the conclusions drawn by the psychological evaluation. We find that the inmate was consistently at odds with the details, the objective facts as stated within the Probation Officers Report and within the Appellate Decision. We find that he consistently externalized important causative factors of the commitment offense, and he resisted focusing on details that might expose his motivation for the crime. Again, continually focused attention away from and outside of himself.

The Board found that while Oropeza had viable residential plans, he did not have acceptable employment plans supported by documentation. The Board also noted the opposition to parole expressed by the San Jose Police Department and the Santa Clara County District Attorneys office.

The Board indicated that Oropeza needed additional therapy . . . or documented self-help in order to face, discuss, and understand and cope with the true causative factors of the crime. Until progress is made in this area, the prison[er] continues to be unpredictable and a threat to others. To that end, the Board recommended that Oropeza remain discipline-free and participate in any available self-help or therapy programs.

The Board commended Oropeza for his programming while incarcerated, such as obtaining an AA degree and vocational certifications, but found that the positive aspects of Oropezas behavior did not outweigh the unsuitability factors. Parole was denied for two years.

ii. Oropezas petition for writ of habeas corpus

After the 2006 denial, Oropeza petitioned the superior court for a writ of habeas corpus arguing, among other things,[7] that there was not some evidence to support the Boards findings.

In granting Oropezas habeas petition, the superior court noted that the Board had failed to state justifiable reasons for denying parole. The life crime was, in the superior courts opinion, heinous, but not exceptional, as Oropeza and the victim were caught up in a road rage incident, fueled by alcohol and the perception that honor or respect was being challenged. According to the superior court, the Board erred in finding that Oropeza abused or defiled the victim by stabbing him 23 times. In order for Oropeza to have abused or defiled Richard within the meaning of title 15 of the California Code of Regulations section 2402, subdivision (c)(1)(C),[8] Oropeza would have had to engage in deliberate acts . . . above and beyond those amounting to the killing. In the superior courts view, stabbing someone multiple times does not amount to abuse or defilement under the regulations.

The superior court also found that the Board was relying upon an incorrect legal standard by stating that it need not show that the circumstances of Oropezas crime were more egregious than the minimum necessary for second degree murder before relying on the life crime to deny parole. Because it appeared that Oropeza would, by the time of a new parole hearing, have reached the minimum eligible parole date for a first degree murder conviction, the superior court directed that the Board weigh his crime against instances of first degree murder in assessing the applicability of any [section] 2402[, subd.] (c)(1) criteria.

The superior court ordered the Board to conduct a new hearing within 35 days of the date of this order. That new hearing shall be conducted in accordance with due process as outlined above (i.e. the Board must provide perspective instead of conclusory labels when characterizing the crime, and, the crime shall be analyzed in light of the degree for which the inmate has served time).

II. Discussion

The Board contends that the superior court erred in finding there was not some evidence to support its decision to deny parole to Oropeza. The Board further argues that the superior courts order improperly reweighed the evidence from the parole hearing and substituted its judgment for that of the Board. Finally, the Board contends that the order impermissibly restricts its discretion by requiring it to compare Oropezas crime to instances of first degree murder at the new hearing.[9]

A. The statutory and regulatory framework for parole hearings

Penal Code section 3041, subdivision (b), provides that the Board shall set a parole release date unless [the Board] 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 . . . . Parole considerations applicable to life prisoners convicted of murder are contained in the regulations, which provide that, before setting a parole date, the Board shall first determine whether the life prisoner is suitable for release on parole. ( 2402, subd. (a).) Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison. (Ibid.)

In determining whether the prisoner is suitable for release, the Board considers a list of circumstances tending to show both unsuitability and suitability. Circumstances tending to show unsuitability include that the inmate committed the offense in an especially heinous, atrocious or cruel manner, possesses a previous record of violence, has an unstable social history, has previously sexually assaulted another individual in a sadistic manner, has a lengthy history of severe mental problems related to the offense, and has engaged in serious misconduct while in prison. ( 2402, subd. (c)(1)-(6).)

Pertinent factors favoring suitability are the lack of a criminal record or history of committing crimes as a juvenile ( 2402, subd. (d)(1)), a stable social history (id.,subd. (d)(2)), acts demonstrating that the prisoner understands the nature and magnitude of the offense (id., subd. (d)(3)), evidence that the prisoner committed the crime as the result of significant stress in his life (id.,subd. (d)(4)), realistic plans for the future (id.,subd. (d)(8)), and participation in institutional activities that indicate an enhanced ability to function within the law upon release (id.,subd. (d)(9)).

The Boards decision expressly rested upon the presence of one unsuitability factor, i.e., the nature of the commitment offense, and the absence of one suitability factor, insight into the nature and magnitude of the offense. ( 2402, subds. (c)(1), (c)(3), (c)(6), (d)(3).)

B. The scope and standard of review

In In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz), the Supreme Court explained that parole release decisions entail the Boards attempt to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts. Such a prediction requires analysis of individualized factors on a case-by-case basis and the Boards discretion in that regard is almost unlimited. (Ibid.) Although the Boards discretion is exceedingly broad, it is circumscribed by the requirements of procedural due process. (Ibid.; Cal. Const., art. I, 7, subd. (a).)

Judicial review of the Boards parole decisions is very limited. [T]he court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation. (Rosenkrantz, supra, 29 Cal.4th at p. 658, italics added.) [U]nder the statute and the governing regulations, the circumstances of the commitment offense (or any of the other factors related to unsuitability) establish unsuitability if, and only if, those circumstances are probative to the determination that a prisoner remains a danger to the public. It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public. (In re Lawrence, supra, 44 Cal.4th at p. 1212.) While the Board . . . may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoners pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoners dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety. (Id. at p. 1214.)

To support the Boards finding of current dangerousness, [o]nly 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 [Board]. . . . [T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of 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 [Boards] decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the courts review is limited to ascertaining whether there is some evidence in the record that supports the [Boards] decision. (Rosenkrantz, supra,29 Cal.4th at p. 677.) If some of the Boards reasons for denial are not supported by the evidence, so long as the reasons that are supported by some evidence constitute a sufficient basis for the Boards decision, the decision satisfies the requirements of due process. (Ibid.)

C. The Boards decision is supported by some evidence

With these rules in mind, we proceed to our review of the superior courts determination that the Boards decision was not supported by some evidence. Because the trial courts findings were based solely upon documentary evidence, we independently review the record. (Rosenkrantz, supra, 29 Cal.4th at p. 677.)

i. The commitment offense

The pertinent regulations specify that one of the circumstances tending to show unsuitability for parole is where the prisoner committed the offense in an especially heinous, atrocious, or cruel manner. ( 2402, subd. (c)(1).) Evidence that would support such a finding includes evidence that the victim was abused or defiled, or that [t]he motive for the crime is inexplicable or very trivial in relation to the offense. (Id., subd. (c)(1)(C), (c)(1)(E).)

In this case, Board stated that the crime was especially heinous, atrocious, or cruel for two reasons. One, the victim was stabbed 23 times and was, in the Boards view, abused or defiled. Two, the motive for the crime was inexplicable or very trivial since the victim was killed as a result of what Oropeza described as a cat and mouse game which began with the excessive consumption of alcohol, followed by discourteous driving, which led to car chases, verbal threats, rock throwing, and finally, the physical struggle which ended up with Oropeza stabbing Richard to death.

As to the first reason, we agree with the superior court that the Board improperly found that Oropeza abused or defiled the victim in this case. The facts establish that Oropeza, in the course of a struggle of approximately 30 seconds with the victim, stabbed him 23 times. There is no suggestion Oropeza engaged in much, if any, deliberation in the course of this struggle, that he sought to prolong the victims death or targeted sensitive, but nonvital areas in order to inflict additional pain and suffering. In less than 30 seconds, it is difficult to see how Oropeza could have abused or defiled the victim.

Turning to the Boards characterization of the crimes motivation as inexplicable or very trivial, fear and anger obviously played a large role in the sequence of events, thus the motive was not exactly inexplicable. If the Board had simply stated that the motive for the crime was inexplicable, the facts presented at the hearing would belie that conclusion. However, the Board found that the motive was, in the alternative, very trivial and the facts support that finding, even if Oropezas version of the events of that evening is credited. Oropeza claimed that Douglass called him a Fing Mexican and threatened to get her .45 and blow [his] head off, but he does not claim that he ever saw Douglass, the victim, or anyone else in the other vehicle with a weapon or that anyone else threatened him with violence. The only weapon displayed or used that evening was the knife Oropeza used to kill the victim. Had Oropeza truly been fearful that Douglass in fact owned a firearm and did intend to retrieve it and blow his head off, it seems likely he would have tried harder to persuade his companion not to follow Douglass after she drove off. According to Oropeza, however, when he noticed that his companion was chasing after Douglasss car, all he said was, What the hell you [sic] doing? Then, after boxing in Douglass car, Oropeza jumped out of Menchacas car, armed with a knife, and got into a fight with the unarmed victim, somehow inflicting 23 stab wounds in approximately 30 seconds. Stabbing an unarmed person multiple times was a disproportionate response to the events of that evening whether or not they occurred as Oropeza described at the parole hearing.

ii. Lack of insight

The Board also found that Oropezas behavior at the hearing . . . was not consistent with the conclusions drawn by the psychological evaluation. The Board noted that Oropeza consistently externalized important causative factors of the commitment offense, and he resisted focusing on details that might expose his motivation for the crime.

The 2006 psychological report indicated that Oropeza expressed remorse for his crime and insight into the attitudes and behavior that led to his crime.

However, at the hearing, when the Board asked Oropeza how the incident happened, Oropeza repeatedly stated that he did not know why, that the incident was silly and that it was like a cat and mouse game. Though Oropeza acknowledged stabbing and killing the victim, he stated that, at the time, he thought he was only stabbing him in the leg and the foot. Oropeza said that once he realized that he was repeatedly stabbing the victim in the chest and abdomen, he stopped. Oropeza also stated that the victim initiated the fight by yelling at him and taking a swing at him. Although Oropeza admitted to drinking heavily that night, he also mentioned that the victim and the victims friends were drunk as well, and that the victims brother admitted that he and the other people in the car with him overreacted during the incident. The Board was justified in finding that these and similar statements by Oropeza in which he appeared to place some of the responsibility for the stabbing on the victim and the victims friends were inconsistent with the conclusions of the 2006 psychological examination that Oropeza had gained insight into the attitudes and behavior that led to the life crime. We recognize that we must defer to the Board on its evaluation of the manner in which a prisoner presents himself.

As discussed above, [i]t is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public. (In re Lawrence, supra, 44 Cal.4th at p. 1212.) Here, there is some evidence to support the Boards conclusion that Oropezas attempts at the 2006 parole hearing to minimize his responsibility for the life crime, in conjunction with the trivial motivation for that crime, indicate that Oropeza would present a current danger to public safety if released on parole. (See In re Shaputis, supra, 44 Cal.4th at p. 1261, fn. 20 [circumstances of commitment offense continue to be probative of current dangerousness where petitioner fails to take full responsibility for past violence and demonstrates lack of insight into behavior].)

III. Disposition

The order granting Oropezas petition for writ of habeas corpus is reversed. The superior court is directed to enter a new order denying the petition.

Premo, J.

WE CONCUR:

Rushing, P.J.

Duffy, J.

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[1] Pursuant to Penal Code section 1477, the warden of the institution where the inmate is currently incarcerated is the proper respondent in habeas proceedings. Since the underlying petition involves a decision by the Board of Parole Hearings, however, all future references in this opinion are to the Board, rather than the warden.

[2] Based on this conclusion, we need not address the Boards additional claims of error, i.e., that the superior court improperly reweighed the evidence from the parole hearing and substituted its judgment for that of the Board and that the order impermissibly restricts the Boards discretion by requiring it to compare Oropezas crime to instances of first degree murder at the new hearing. We note, however, that the California Supreme Court has recently reaffirmed that comparative analysis of an inmates crime is not required by statute. (In re Lawrence, supra, 44 Cal.4th at p. 1217.)

[3] Our recitation of factual and procedural aspects of this case is taken from the record in People v. Menchaca et al. ((Oct. 7, 1993) H009479 [nonpub. opn.]), of which we take judicial notice.

[4] As this proceeding does not involve Oropezas codefendant, Menchaca, we make no further reference to that individual.

[5] The Board recited the facts as set forth in our unpublished opinion on appeal, which are reproduced in Section I.A., ante.

[6] Form 128-A, a Custodial Counseling Chrono, documents incidents of minor inmate misconduct and the counseling provided. ( 3312, subd. (a)(2).) Misconduct that is believed to be a violation of law or is not minor in nature is reported on CDC Form 115, a Rules Violation Report. (Id., subd. (a)(3).)

[7] In his initial petition, filed on January 24, 2007, one of Oropezas arguments was that the Board was denying him access to the courts by failing to provide him a copy of the transcript from his December 1, 2006 parole hearing. Although a copy of the relevant order to show cause is not contained in the record on appeal, it appears that the superior court directed the Board in that order to provide the relevant transcript as an attachment to its return and authorized Oropeza to file a traverse and submit an amended petition raising new issues that were supported by the transcript.

[8] Hereafter, all undesignated section references and all further references to regulations are to title 15 of the California Code of Regulations.

[9] See footnote 3, ante, page 2.