*1 Dist., A112673. First Div. Thrеe. July [No. 2006.] In re LIBER R. ANDRADE on Habeas Corpus.
Counsel Satris, for Petitioner. Court Appeal, Michael under appointment Humes, General, Attorney James M. Chief Assistant Lockyer, Attorney Bill General, Grander, M. General, Binsacca Anya Attorney Frances T. Assistant General, Mather, Attorneys Respondent. Scott C. Deputy Opinion
PARRILLI, J. case we this hold that Board of Prison Terms (Board)1 15 of the California misconstrued section 2402 of title former Code, California Administrative now Code Regulations, by requiring inmate have both California Mexico. The prisoner a life sentence murder and hold on so he can be has a him serving placed to his country native Mexico. At time of the commitment deported *3 offense, the the was in United States and remains an prisoner illegally illegal the we alien. Board’s erroneous of section affirm Despite interpretation the deny Board’s decision to on the basis of the commitment parole solely offense. Liber in
Petitioner R. Andrade wаs convicted 1982 of second degree and murder and to a aggravated assault was sentenced term of to years life. minimum His release date was eligible parole 1991. Because January Mexico, Andrade is an from alien and Naturalization illegal Immigration (INS)2 him, Service “hold" on a its intent to him to placed indicating deport 22, 1990, At Mexico. his first on March he found to be parole hearing, was However, suitable for and the Board set a June in parole, 1995 release date. May 1995 Board rescinded his for grant parole “nondisciplinary then, reasons.” Since has had additional suitability seven petitioner hearings, 17, 2004, one on including November results which he is challenging this At the November 2004 the Board its petition. based determi- nation that not suitable petitioner was on two the commit- factors: offense, ment which it described as “violent and brutal” and it found which and the human life” need for to disregard petitioner “demonstrate^] have viable in California. Petitioner parole plans Board’s challenges determination that he is suitable on not for parole multiple grounds. Among those, Mexico, he claims the Board insists to both develop California, which he be he will and he is anticipates case not deported, After informal on the we issued an deported. requesting subject, briefing order to show cause and directed that We counsel appointed petitioner. decision, now conclude that in its the Board reaching November relied aon erroneous section 15 of the clearly interpretation of 2402 of title nonetheless, California Code of we affirm the Board’s decision Regulations; on commitment based the characteristics of the offense. deny solely AND FACTUAL PROCEDURAL HISTORY 5, 1981, collided, On two vehicles in a verbal September nearly resulting Andrade, cars, altercation between the driver in one and passenger Hearings.” The Board is now the of Parole “Board Immigration Citizenship Thе INS now the “Bureau of Services.” traffic one of the caught the other car. This blocked exchange people car with Andrade. exchanged traffic out of his words resulting jam got car, car tried to out of his kicked Andrade’s get person When Andrade his two men Andrade out of car the started successfully got door shut. Once him, knife on neck. cutting and Andrade’s his fight adversary pulled Nonetheless, de- ended and onlookers and fight participants generally later, two of the were saw leaving, they A short time bystanders parted. had retrieved the towards them with Andrade walking shotgun. Andrade As aimed the from his which was apartment, nearby. weapon it, them, we’re in it.” “We’re not in Andrade they yelled, shotgun similarly of these who was dressed believed that one bystanders, the man had him. He fired three shots at was who assaulted antagonist, the time one and the second. At killing two bystanders, injuring incident, old; was 24 the victims were 18. years his actions: “I was hearing,
At the November Andrade explained me, me, feel the had tried to kill and I need had wounded Somebody upset. *4 couldn’t couldn’t—they retaliate or make them know that I—they just occasion, his mental with On another state petitioner explained mess me.” time I establish. I dignity being as “I am not a have a the follows: punk, Mexican, had clear off ... or hurt.” Petitioner my path the to steer only they he insulted his would not today dignity, respond also stated that if someone then, a mature man. I’m he did back “I have learned. I’m asserting, grown man.” his taken for medical treatment and
After arrest that Andrade was evening, he level of He grams percent. it was determined that had a blood-alcohol .09 he been at the time. admits had drinking events, Evaluation,” “Life Prisoner a report
Based on these completed three suitability inmate’s found for the Board’s consideration of an parole, victim, had not vulnerability provoked who factors: aggravating (2) the to the earlier fact merely fight; but was witness petitioner, desist, nоt; (3) the did and fact but had opportunity of the crime. That same a firearm commission during used lack of an arrest history, also one factor: petitioner’s noted report mitigating either as a adult. juvenile Board had available to it and transcript
A review of the records the in Andrade was bom following. Guadalajara, reveals suitability Mexico, 17 and at the served Army age He entered the Mexican 1957. three and one-half approximately when he was dis- years honorably In he
charged. 1977 married and had two children from that Since marriage. remarried,3 then he has but maintains contact with his He children. worked as a machine in Mexico. In operator 1980 he entered the United States illegally and ultimately found aas furniture employment assembler.
During incarceration Andrade earned both a GED certificate and a high school diploma. automotive, he prison vocational completed training electronics, shoe and reрair, asbestos At management. the time of the 2004 he hearing, worked as a clerk and had received program a satisfactory report from his record, He also supervisor. received a notation in his laudatory dated 6, 2004, for April his work performing as a clerk in “an manner.” exceptional He activities, in various participated and therapy self-help including Alcoholics Anonymous (AA), a Rational Behavior Training two different Group, anger management the Yokefellow groups, (a Counseling substance Program abuse education and program), two self-confrontation He was a tutor in programs. literacy and a program member of the Men’s Committee. Advisory He participated Ministries, Protestant Chapel Christian interpreting Spanish-speaking participants music. A playing correctional officer noted 5, 2003, on December in Andrade’s record that “he has been able to reach many other inmates [the a Life participating Experience assist course] them in their lives turning around. He work—and work ethics are [sz'c] outstanding he full accepts for his responsibility actions. If he’s granted he would be a citizen productive and an asset to any community resides in.” *5 his
During incarceration petitioner received two “CDC 115 Rules Violation one, in Reports,” cell, 1985 for not in his being and a assigned second in for a falsifying to to pass go He has chapel. received seven “CDC 128A Chronos,” Custodial Counseling the most recent two being in respectively 1997 for to to his failing report work assigned area and 2003 for having $50 of a bill and photocopy one having dollar in his locker. At the time of the November 2004 suitability he had hearing, been since his last discipline-free none of hearing; his involves discipline violence. As of the suitability June hearing, petitioner’s living second wife was States, United but intended to return to deported Mexico if Andrade were there. The petitioner’s whereabouts of second wife specified during hearing. were not Regardless married, of where she they is or whether are still based on the lack of references to her at the hearing, appears it relying that is not pivotal person on her as a in his
postrelease plans. that he suffers from Petitioner’s evaluation documented psychological It to note he has “alcohol in institutional remission.” on that goes dependence in and “has maintained “no record violence aggression prison” in AA.”4 long-term presence It
At the Board also reviewed Andrade’s hearing, parole plans. Mexico,” that “an active US INS hold to and determined that observed he has In the live mother in Board’s release he to with his Guadalajara. upon plans individuals, mother, letter, file was a signed by including petitioner’s with and transportation, would him stating they help provide housing available, our and and that him “all of efforts offering were were jobs they If to him into community.” paroled warmth home to help reintegrate mechanic, Mexico, area in stated would seek work as a an addition, Board two other letters which he has reviewed experience. would Andrade his return stating employ upon from potential employers, they letter of AA Mexico. the Board reviewed a from the president to Finally, in this will you that “the of AA location welcome Services stating fellowship in mission to rehabilitate.” your had current release in
The Board also determined that Andrade no lived in California and that his relatives who had have previously California release, district deputy returned to Mexico.5 In opposing petitioner’s about relevance of lack of parole doubts attorney expressed adaptation prison positive to life has been and report The further notes: “[His] [o]verall wrongfulness He full fully acknowledges the actions. takes constructive. ... He [his] to or minimize his rolе. He responsibility appear the offense does not rationalize asked, fully expressions When he shared extensive appeared express remorse his actions. guilty emphasize his can guilt appears inmate to feel actions and [sz'c] remorse. This family. The has emotional the harm done to the victim victim inmate his level with committing good resulting a serious of the circumstances demonstrated awareness personality . . . Andrade diagnosed an antisocial disorder Mr. offense. inmate is [with] April psychological report of 25th of consistency able to since his last has been demonstrate [sic], self-help disciplinary-free participate remain continues to managed ’03. He has verbally express inmate program positive in a manner. The also continues group, his alcohol . . . insight the nature crime and role of abuse psychological into of his dangers of total abstinence importance Andradе is of alcohol and realizes the Mr. aware of are barriers meetings ongoing in AA basis. There no participation from alcohol and [sic] *6 maintaining of (indiscernible) prognosis his level standpoint, a mental health for from inmate’s functioning good. setting appears propensity it that the Within controlled average community the it would be less and within also violence is less than that of inmate average citizen.” than that time, was parole At that Andrade denied parole plans Andrade once have in California. did At his recent adequate plans in Mexico. most part because of lack of documentation of in they because have longer any he no relatives in California hearing, Andrade indicated that had support system coupled Presumably, his lack of a California-based returned to Mexico. current impediments country significant illegal the fact that for him to work in this are with it is in developing parole plans reаlistic California. California, in since he is to be
plans “I wouldn’t expected deported, saying, is, think that would be relevant but if it have any.” doesn’t At previous the Board of hearings, emphasized importance 26, in developing parole Mexico. At a plans January 1999 hearing, Commissioner after that Andrade Giaquinto, was not a United establishing citizen, him, States told don’t convicted “They murders keep anymore United States if not citizens. they’re You’re to be so unless going deported that, your to war or country goes like like San something Salvador or some that, like place you’re back.” At a June going go he was California,” told that he had “some real from but support that he needed to have letters in supportive in his of English country because “with the origin immigration hold on you, will more than you likely returned to your of in country origin Mexico. . . .” When Andrade was denied in noted, the Board without about need for commenting in plans California, Then, that his were parole plans Mexico based. the sole impedi- ment to his being seemed to be the paroled of gravity commit- ment offense. at his Again, 2003 suitability comment hearing, only Board made about his was need to plans about inquire self-help substance abuse programs available in Mexico “the country his most probable parole.” 17, 2004,
On November the Board found Andrade “not suitable for parole he would an unreasonable risk pose [because] or a threat danger society to public if released from safety It therefore prison.” denied his for one with the year, decision final on March becoming 2005. In of its support decision the Board concluded that commitment offense was carried out “[t]he manner,” a violent and brutal and the fact that “he has despite viable offer,” parole plans Mexico and a job “he needs for California parole plans and a offer. The job reason for this is that when he is released frоm prison there is no guarantee he will be released to Mexico. So must be made for California.” After the district noting attorney’s opposition Andrade’s being paroled, Board reviewed the “positive aspects [peti- behavior,” but concluded that tioner’s] these “do not the factors of outweigh unsuitability.”
Petitioner then filed two petitions writs habeas with the corpus 30, 2005, court. One superior was decided on June and concluded that the Board’s November 2004 decision did not denying parole compromise peti- tioner’s to due right or inflict cruel process and unusual on him punishment because it him to required California. A second writ develop parole plans was denied on petition October 2005. It raised issue of whether his offense, term is to his disproportionate when with compared punishments 17, 2006, more serious crimes. On January for a writ of petitioner petitioned *7 this court issues addressed in both court superior habeas raising corpus we an order to show After informal issued petitions. requesting opposition, cause and counsel for appointed petitioner.
DISCUSSION argu- court determined correctly superior petitioner’s proportionality ment because is to be considered after only not viable proportionality Thus, determined. was determined the inmate not .Board suitability . risk suitable because release would an unreasonable pose parole in a There is it was society; unnecessary engage proportionality analysis. need, therefore, of the no to discuss further the proportionality petitioner’s 1061, Dannenberg (2005) re Cal.Rptr.3d sentence. 34 Cal.4th 1084 [23 {In 417, 109, 92].) 783], cert. den. L.Ed.2d 126 S.Ct. 104 P.3d 546 U.S. [163
We Board based decision on two also observe at outset that the its (see factors: Offense” Cal. Code Regs., the characteristics the “Commitment 15, 2402, (c)(1)), lack of tit. subd. California-based petitioner’s § return, 2402, 15, (see (d)(8)). subd. In his Cal. Code tit. Regs., § matters is General that the Board’s discretiоn emphasizes Attorney 616, and “almost unlimited.” 29 Cal.4th “great” Rosenkrantz {In 104, 174], den. U.S. cert. P.3d Cal.Rptr.2d [128 Moreover, 1808].) “the attached to L.Ed.2d 123 S.Ct. importance [155 circumstance case is left or combination of circumstances particular (c) tit. subds. & (Cal. Regs., to the of the Code judgment [Board].” Rosenkrantz, 679.) (d); Our review cannot supra, 29 Cal.4th at p. (29 677), limited. of the evidence Cal.4th at and is p.
reweighing review, limitations review of the considerable on our Despite judicial In re Scott (2004) 119 (See, merely e.g., Board decisions is not forma. pro that Board erred because there [holding Cal.Rptr.3d Cal.App.4th 32] demonstrated was that inmate’s commitment offense not “some evidence” social history, or that he had unstable was not suitable release that he substantial evidence was by considering and that Board erred release].) suitable for below, of the November 2004
As based on our review Board’s explained However, decision,6 we also have we affirm the decision to deny parole. for leave unopposed filed an motion argument After oral was concluded held supplement transcript consideration the record with motion, Board denied Andrade May grant noting that in that decision the 2006. We urges reopen this case to solely Petitioner us to parole based on the commitment offense. yet May is not final. May Board’s 2 decision. The 2 decision consider the merits of the Furthermore, May 2 been reviewed record that the decision has nothing suggests
determined that the Board’s that inmates such as Andrade have requirement both in this and in their native parole plans country lands is an issue of great recur, importance, likely (See otherwise evade may review. appellate (1989) Smith v. Board Supervisors Cal.App.3d Cal.Rptr. 466].) We thus reach the of whether such is a question requirement reasonable interpretation applicable regulation.
Parole Plans for California
Prison authorities routinely consider an inmate’s
status in
deportation
how to
determining
(See,
classify prisoners.
(8th
Mohammed
e.g.,
v. Sullivan
1989)
Cir.
section (d)(8) subdivision of title 15 of the California Code of Regulations, which indicates that the Board should consider whether “[t]he has prisoner made realistic for release or has marketable developed skills that can be 15, 2402, to use put upon (Cal. release.” Code tit. Regs., § (d)(8).) subd. A answer to that positive is to be as a factor question regarded suggеsting inmate is suitable for {Ibid.) The Board’s parole. interpretation of its own Nonetheless, regulations is accorded great it weight. remains subject judicial review to determine if the Board’s interpretation clearly (See erroneous. In re Richards 16 Cal.App.4th 98-99 [19 797]; Cal.Rptr.2d Bentley v. Swoap Cal.App.3d 168-169 [117 479].) Cal.Rptr.
The Board determined that California were parole plans because' mandatory “there is no guarantee will be [petitioner] released to Mexico.” In view, this affirming court cited United States v. superior Female Juvenile (1st 2004) Cir. F.3d for the that an “INS hold is not a proposition order, deportation merely] serves as a that another law enforce- request [but ment agency INS before an notify releasing alien from detention so that the INS to assume may arrange over the alien.” custody scheme does statutory official require INS to “deter- appropriate mine whether to issue a detainer when promptly” there is reason to believe superior May court. The issue of the argument decision was not addressed at and the oral Attorney by General has not briefed Accordingly, issues raised that decision. we decline to 2, 2006, May consider whether the supported by decision is “some evidence.” official, alien, federal, state, local arrested law enforcement is not otherwise has “been admitted to United States or lawfully issued, (8 1357(d).) here. If a detainer “serves U.S.C. lawfully present” seeks that the Department advise another law enforcement agency Justice] [of *9 of that for the purpose of an alien in the presently custody agency, custody agency the The detainer is a that such removing and alien. arresting request alien, for the release of the in order advise the to Department, prior immedi- to to assume situations when Department arrange custody, gaining (8 C.F.R. ate is either custody impossible.” physical impracticable Thus, to (2006).) subjeсt that an alien who is 287.7(a) certainty there is no § he has the concedes an detainer will be But where alien INS deported. murderer,7 to to return entered the is a convicted country illegally, plans from is a that when he is released native there country, great probability he will be prison expeditiously deported. (1993) v. Patel Cal.Rptr.2d
Brewer Cal.App.4th 65] rule of court fundamental summarizes how a “The regulation. interprets so regulation is to ascertain the intent of the the agency issuing interpretation intent, we turn as to the the law ... To determine that effectuate purpose of the meaning first the effect to the usual regulation, to the words of giving clear, must .... When we language apply used language statutory Here, an requires without the indulging interpretation.” regulation language (italics added) or to have have “realistic for release” plans inmate to Although be to use release.” marketable skills that can put upon “developed has received training the record recites the vocational Andrade significant or the mention that training the Board’s decision makes no prison, did could once the Board Although likelihood Andrade it to use put paroled. realistic, the not discuss whether were implica specifically petitioner’s plans the sufficiently tion it believed were not reasoning suggests of its remaining realistic did cover the of Andrade’s they contingency because in the United Sates. initial defini- (after defines “realistic”
The Oxford English Dictionary with, realism) as or character- tion to artistic or “concerned referring literary Dictionary ized view of New World life.” Webster’s by, practical “realism,” “realistic,” face to “tendency form of as the adjectival defines Dictionary Ninth facts Webster’s New Similarly, Collegiate and be practical.” “realism,” it which “realistic” also references adjective in defining “concern for fact or reality rejectiоn impractical defines as a of the with the usage These definitions are in accord common visionary.” one word. one house hopes For contrast might “perfect” example, 1101(a)(43)(A) aggravated felons classifies murderers as Title 8 United States Code section “conclusively deportable. Aggravated presumed” are immigration purposes. felons (c).) (8 [(d)](5), U.S.C. § “realistic,” with one that basic needs and given buyer’s purchase one “realistic” vacation made budget; similarly, may compare plans, taking constraints, time into account real-world economic and with one’s “dream” Thus, vacation. based on its clear regulation’s language, requirement an inmate have is limited to realistic The entire parole plans requiring plans. thrust of the is on regulation practicality. Nothing regulation requires 6, above) alien illegal (see to be fn. “conclusively presumed” deportable have fail-safe in two different countries. It is а burden parole plans significant two maintain and the social and economic develop plans—to develop to live in either of two For an relationships necessary potentially places. murder, alien illegal convicted of who cannot work here and whose legally him (see 1324a), would face sanctions for employer 8 U.S.C. employing this is an unrealistic burden. More does not regulation importantly, that such suggest are foolproof plans necessary. language plain *10 regulation conclusion. to “realistic” supports opposite By referring the regulation does not ironclad and unrealistic plans, contemplate plans.
Moreover, the state cannot assert that because the federal government not it might becomes the burden to deport petitioner, petitioner’s develop to remain in the United plans States. Both his here presence employment would be are illegal. Although we sensitive to the workloads and budgetary involved, constraints of all we cannot to for the require prisoner plan that the contingency government fail to do its him. might job deporting By law, in order to work in this an alien must first obtain an country appropriate certification; labor unless an alien is a legal resident or has permanent (8 authorization he cannot be appropriate in this U.S.C. employed country. 1182(a)(5)(A), 1324a.) It is self-evident government may §§ as a condition of require that someone to violate the law. But arrange this is what precisely Board’s insistence that an alien have illegal Martin v. Marshall (See in this employment (N.D.Cal. does. plans country 2006) 431 Governor’s F.Supp.2d reasoning [regarding petitioner [“The who was to subject would to make to deportation] require petitioner plans enter the United States illegally, then communicate those to illegal plans the Board in order to be a release date. untеn granted This is argument .”].) able. . . We also General’s that someone in reject Attorney suggestion to his petitioner’s position attempt legalize immigration status precisely kind of unrealistic not mandated this It defies planning by regulation. murderer, common sense to that a convicted state suggest residing prison to be to the same conclusively should presumed deportable, apply government that is under him for to work and duty deport permission remain legally. in both California and
By requiring petitioner develop parole plans Mexico, the Board is him to a standard than the standard holding higher 15, California Code of title section 2402. required by Regulations, Although be will deported upon certainty one cannot with absolute say Accordingly, assume he will be. it is realistic to release from state custody, satisfy requirements in Mexico need have realistic parole plans only Thus, Board (d)(8). section subdivision in Mexico as a had the fact Andrade only viewed erroneously fact, In his for parole. his found suitable that militated against being factor a factor have been seen as supporting should Mexico-based parole plans suitability parole. barred that the Board is we are not holding
In this regulation construing to develop parole plans facing deportation from ever requiring prisoner inmate not circumstances (e.g., because of other the state. It be that may that a eligible asylum), or the inmate of an aggravated felony convicted In circum as it is here. such not a near certainty, prisoner’s deportation remaining for the inmate develop plans stances it be realistic may us, be cases, the Board would the one before including In many this country.8 conditioning parole upon prisoner’s able to its discharge responsibility Code, (See may impose Pen. release to INS custody. [Board Schoengarth on it deem may parole]; “conditions that рroper” may 425 P.2d [parole 300-301 Cal.Rptr. 200] Cal.2d [57 In re Korner cf. sovereign]; release to another conditioned on on defendant’s conditional P.2d [parole 111] Cal.App.2d authorities for deportation].) release to immigration *11 Parole Deny Decision to the Board’s
Our Decision Affirm decision, than remand the rather affirm the Board’s It is appropriate Board, the Board it is clear the where for further consideration matter may made error. “We conclusion had it not reached the same would have decision, if the a flaw in its findings, despite the authority’s uphold parole absent the decision even have reached same has made clear it would authority Here, 1100.) (In re Dannenberg, supra, given 34 Cal.4th at p. the error.” that the Board would have no doubt in there is Board’s decision May the commitment offense. in based on solely denied parole Board if we find that the that even General contends Attorney The deny we should parole plans, considered petitioner’s improperly We commitment offense. on the characteristics based solely petition be may affirm A denial on that basis. the Board’s decision agree Board, directing it above, by the inquiry a broad regulation allows for out pointed As developed release or has plans realistic for “prisoner has made to consider whether (Cal. Regs., tit. Code upon to use release.” put that can be marketable skills where the appropriate would be (d)(8).) the United States parole plans Alternate subd. to be here. obtaining appropriate authorization chance of inmate has a realistic re based the commitment on the nature of offense alone.
properly {In Rosenkrantz, 1094; In Dannenberg, supra, supra, 34 Cal.4th at p. victims; 682.) Cal.4th Here there were evidenced p. multiple disregard human life innocent Petitioner by shooting bystanders. actually near-accident, home, left the scene of the returnеd gun, to his retrieved a started; words, then went back to where the incident had in other he although murder, was convicted of second degree there is evidence that he used the crime, time between the near-accident and the actual shootings plan short, rather than to cool off. there is “some evidence” which supports Board’s decision to There is for the Board’s deny parole. adequate support decision that Andrade was not suitable for because his commitment Furthermore, offense was “violent and brutal.” is no case especially thep authority claim that someone who had been convicted support petitioner’s of second murder degree and use of a and sentenced to a term deadly weapon enhancement, of 15 to life years has a claim for a plus two-year cognizable due violation once he has been process (as incarcerated nearly years had been at the decision). time of the Board’s 2004 Petitioner no presents evidence we should so hold in his why case.
DISPOSITION petition habeas is denied. corpus McGuiness, J.,P. concurred. and Dissenting. J., Concurring
POLLAK, concur in the conclusion fully I California, that failure to viable as well develop Mexico, cannot under the circumstances described in the majority opinion as a factor properly regarded him to be unsuitable for showing parole. However, I with the conclusion of the Board disagree strongly finding Terms, of Prison (the Board), now the Board of Parole Hearings is unsuitable for can be sustained based on the parole, solely *12 view, circumstances of commitment offense. In there is no my evidence in this record to show that “will an tending rationally pose unreasonable (Cal. risk of if released from Code danger society prison” 15, 2402, (a)),1 tit. subd. and there is uncontradicted Regs., overwhelming § evidence to the contrary. 1 1061, 417, 783], (2005) Dannenberg In In re 34 Cal.Rptr.3d Cal.4th 1091 104 P.3d [23 Supreme equated safety: regulations specify Court the term “suitable” with “The numerous suitable—i.e., determining prisoner
factors Board is to consider in whether the safe—for parole.” unsuitability finding determination of simply prisoner shorthand “[A] (In (2003) currently danger would an pose unreasonable risk of if released at this time.” re Smith 343, 655].) Cal.App.4th 114 Cal.Rptr.3d 370 [7 regulations Regulations. All further references to are to title 15 of the California Code of 820 “to identify weigh
The Board has broad discretion exceptionally inmate will whether the analysis relevant ‘by subjective factors predicting ” acts.’ additional antisocial committing be able to live in without society 585, 643], re DeLuna (2005) Cal.Rptr.3d 126 591 Cal.App.4th [24 {In 104, 616, In re Cal.4th Cal.Rptr.2d [128 Rosenkrantz quoting an {Rosenkrantz).) finding decision of the Board reviewing P.3d 174] some “the court whether may only inmate unsuitable for inquire parole, the Board the decision to deny parole, in the record before supports evidence {Rosenkrantz, statute and rеgulation.” based the factors specified by upon Board, however, must be 658.) at The evidence relied on supra, by p. “ ‘ 2281, “some (b), (b)); it must have “reliable” subd. subd. (Regs., §§ ’ ” re Scott indicia of reliability.” Cal.App.4th {In “ due 905].) ‘the process Additionally, requirement procedural Cal.Rptr.3d I, Const., (a)) subd. (Cal. art. embodied in the California Constitution of the Board.’ the broad discretionary authority some limitations upon places [Rosenkrantz, ‘an individualized at A is entitled to supra, p. prisoner 655.] DeLuna, {Ibid.)” re supra, consideration of all relevant factors.’ {In 591.) decision “must reflect an individualized at The Board’s Cal.App.4th p. criteria and cannot be arbitrary capricious.” consideration of the specified {Rosenkrantz, 677.) supra, Cal.4th at p. on the basis of “a be deemed unsuitable for release may
While prisoner [citation], must properly commitment offense ‘alone’ . . . proposition [this] indicative of offense is one of two factors only understood. The cоmmitment his ‘Previous Record (the cannot other change being unsuitability prisoner to or Violence’). regard Reliance on such an immutable factor ‘without [citation], unfair and ‘runs circumstances’ bemay consideration subsequent and could by system to the rehabilitative contrary goals espoused prison can The commitment violation.’ result in a due process [Citation.] offense established reliably by circumstances the crime negate suitability only if will present indicate that the rationally evidence in the record offender Scott, supra, prison.” risk released safety unreasonable public {In from if “Thus, omitted, 594-595, added.) denial of italics at fns. 133 Cal.App.4th pp. offense warrants of the commitment gravity release on the basis solely 595.) close scrutiny.” p. {Id. especially suitable for parole was found the Board to be
In March basis for behavior suggests in his subsequent exemplary nothing he obtained a GED degree this evaluation. While changing prisоn *13 that is now a school in 1995. As high diploma us, (AA) for before he had been in Alcoholics Anonymous many participating a offered within and had twice self-confrontation years completed program an He has been a volunteer tutor in a literacy program, prison. prison Ministries, active in the Protestant Christian and a “very participant Chapel reliable, hard and a individual... as clerk.” assignment working, productive record, to one on in the has According report petitioner appears petitioner (indiscernible) a effort to better himself. He is an “demonstrated every quality active member of AA and attended numerous other seminars such self-help (inaudible) his and Self-Confrontation. He is and to Anger Management to reach of them attitude. At Life he has been able positive Experience many and assist their work—and ethics are them lives around. work turning H[is] and he full for his actions. If he’s outstanding granted accepts responsibility he would be a citizen and an asset to any community productive resides in.”
The latest evaluation of assessing dangerous- psychological ness that in the record is “Low factors include no appears similarly positive: record, criminal no convictions or prior juvenile/adult felony prior prior convictions, misdemeanor no record of or violence in He aggression prison. has maintained a in AA. Overall to life long-term presence adaptation prison has been and constructive. The offense was not committed positive during commission of another crime. inmate he committed the acknowledged offense. He He takes fully acknowledges actions. wrongfulness [his] full for the offense and does not to rationalize or responsibility appear minimize his role. He to remorse for his actions. When fully appeared express asked, he shared extensive . . and can remorse . expressions guilt his emotional level with the harm done to the victim and [empathize] The inmate has awareness of the family. good demonstrated victim[’s] circumstances in his a serious offense. The inmate is not resulting committing diagnosed antisocial disorder. The criminal-mindedness personality did not to be elements of the inmate’s offense. criminality appear primary Circumstantial, institutional factors role significant appeared play offense.” The noted role” in psychologist played significant “[a]lcohol Further, offense. “has been able to demonstrate since his last 25th of ’03. He has consistency psychological report April to remain continues managed participate self-help disciplinary-free, in a inmate also continues manner. The group, program positive into the nature of his crime and the verbally express psychological insight of thinking. role ... his alcohol abuse contributed to this distorted pattern *14 822 of
Mr. Andrade is aware of the оf alcohol and realizes dangers importance alcohol and in AA in an meetings ongoing total abstinence from participation (indiscernible) There are no barriers from a mental health standpoint, basis. a his level of is Within maintaining functioning good. prognosis is controlled it that the inmate’s for violence less setting appears propensity also be than that of an inmate and within the it would average community less than that of the citizen.” average factors, has family
In addition to all of these unqualified personal petitioner his return to and realistic him awaiting upon employment opportunities to show Mexico—all of which under the Board’s tends regulations petition- (c), (d).) What then is it er’s subds. suitability parole. (Regs., § the nature of his that indicates that all of these about offense despite positive indicators, an unreasonable threat to if public safety will pose alcohol, influence a and under of released? While in rage offense, years committed a one-time for which he has now served and to He has taken the to eliminate his alcoholism prison. appropriate steps which, curb his rather than of were at the root anger criminality, pattern who have examined him have found no his offense. professionals to he reoffend and in fact consider him less likely reason believe likely than citizen.” There is in the record no violence “the engage average and the no as to evidence Board has contrary, provided explanation offense an inference how or the circumstances why petitioner’s support future.2 others in the likely endanger 2 Moreover, egregious significantly crime are less than the circumstances of finding support of the offense was found to those in other cases in which the nature the denial based on the circumstances of unsuitability. Supreme upheld Our Court has parole authority “pointed when has to circumstances the commitment offense degree suggesting beyond the minimum elements of second inmate’s offense viciousness 1095.) (In had Dannenberg, supra, p. murder.” re 34 Cal.4th at the inmate Rosenkrantz “ ” “ preparation, ‘a full week of careful rehearsal and ‘brutally murdered’ the victim after ” execution,’ firing and at least three or four range weapon 10 shots at close from assault (Rosenkrantz, lay supra, Cal.4th at pavement. shots into the victim’s-head as he on the violence,” 678.) Dannenberg had reacted “with extreme and sustained p. In In re the inmate inferred, and, while she striking pipe to wife’s head with a it was “multiple blows wrench” leaving at least helpless injuries, placing was from her her head into a bathtub full of water or (In assisting Dannenberg, supra, dead. 34 Cal.4th at it there without her until she was 406], 1095.) Cal.Rptr.3d Cal.App.4th In In re Van Houten p. [10 premeditated, “gratuitous couple mutilation” of a married in which participated inmate “struggled for her life while her husband the wife was stabbed a total of 42 times and DeLuna, supra, the inmate had gruesome Cal.App.4th page meet his fate.” In In re rifle, bar, the victim in the confrontation with the victim outside of a retrieved shot physical firing “deliberate[ly] through parking defenseless victim” lot mouth and then stalk[ed the] 1], Cal.Rptr.3d Cal.App.4th at him until he died. In In re Lowe victim, inmate, gun purchased and confidence with the special relationship who had a of trust “ murder, ‘and him shortly slept bedroom while the victim shot before the entered victim’s ” chest, style.’ in the head and execution five times record, cases,
This
like that
in numerous recent
strongly suggests
*15
California
authorities are
of the fact that “release on
losing sight
parole
parole
Smith,
rule,
(In
re
at
supra,
is the
rather than the
114
Cal.App.4th
exception.”
351.)
is an
of the
grant
integral
system
p.
parole
part
penological
“[A]
intended to
those convicted of crime to
into
integrate
society
help
constructive
as soon as
and alleviate thе cost of main
individuals
possible
451,
v. Vickers
(People
(1972)
them in custodial facilities.”
8 Cal.3d
taining
458,
305,
Morrissey
Brewer
1313];
455
v.
503 P.2d
see also
Cal.Rptr.
[105
471,
484,
All
(1972)
2593].)
408 U.S.
L.Ed.2d
S.Ct.
If he will
92
pose
[33
no unreasonable risk to
is entitled to be
safety,
public
petitioner
paroled
in fact is well
the
at which he became entitled to have a
beyond
point
parole
Code,
3041,
In re
Dannenberg, supra,
(Pen.
(a);
date set.
subd.