Opinion
NOT TO BE PUBLISHED
PETITION for writ of habeas corpus. County Super. Ct. No. A524150 Loren Miller, Jr., Judge. Writ granted.
Daniel Broderick, Federal Defender, and Ann C. McClintock, Assistant Federal Defender, for Petitioner.
Edmund G. Brown Jr., Attorney General, Julie L. Garland, Assistant Attorney General, Jennifer A. Neill and Kim Aarons, Deputy Attorneys General, for Respondent.
KITCHING, J.
On October 15, 1980, petitioner, Danny Saul Rosales pleaded guilty to second degree murder (Pen. Code, § 187, subd. (a)) and three counts of assault with intent to commit murder (former § 217), during each of which he used a deadly weapon (§ 12022, subd. (b)) and, as to each of the assaults, inflicted great bodily injury (§ 12022.7). The trial court sentenced Rosales to 15 years to life in prison. Following the Board of Parole Hearings’ (Board or BPH) February 26, 2008 denial of a parole date for three years, Rosales, acting in propria persona, seeks a writ of habeas corpus. He urges the evidence relied upon by the Board, “that multiple victims were injured or killed and that the motive was very trivial in relation to the offense -- [did] not provide ‘some evidence’ that [he] remains a current threat to public safety.” In addition, he argues the Board’s conclusion he has not shown adequate remorse is not supported by the evidence. We appointed counsel to represent Rosales and issued an order to show cause directing the People to show why Rosales should not be granted relief. Because we have determined there is no evidence indicating that Rosales poses a current threat to public safety, we grant the petition.
All further statutory references are to the Penal Code unless otherwise indicated.
1. The commitment offense.
On January 14, 1979, 18-year old Rosales, who was under the influence of alcohol and PCP, was observed attempting to break into a car. He was stopped by the victims, Barbara Romaro, Lilia Vasquez, Olivia Delarosa and Alice Delarosa. The victims grabbed Rosales, retrieved items he had taken from the car from his pockets and said they were going to call the police. At that point, Rosales grabbed a 13-inch Bowie knife from his waistband and began stabbing at the victims. He stabbed Romaro in the chest, killing her. He stabbed Vasquez in the left breast and Olivia Delarosa several times in the left chest and forearm. Rosales stabbed Alice Delarosa in the chest and abdomen, leaving her unable to bear children.
2. Rosales’s history.
Rosales was born on February 8, 1960 in El Salvador. He came to this country with his family when he was four years old. Rosales graduated from Nogales High School in La Puente and immediately joined the Marines. At the time of this offense, he had served approximately one year as a private, first class. There is evidence that Rosales, who is now 49 years old, was physically and psychologically abused as a child.
With regard to Rosales’s prior record, as a juvenile he had been arrested for shooting at an inhabited dwelling. However, he had not been prosecuted for the offense as there was insufficient evidence to show he committed it. As an adult, Rosales has no prior felony convictions.
Rosales was interviewed and evaluated by psychologists and psychiatrists on a number of occasions. In a report conducted by Dr. Ralph Allison in 1992, the doctor concluded that it appeared Rosales “ha[d] arrived at a logical psychodynamic understanding of why he acted so violently during the time of the offense. However, no one knows to this day why the women acted so violently. Unfortunately, [Rosales] had been preconditioned to react over aggressively when attacked by other people when he felt there was no way out. The diagnosed psychopathology has been indirectly related to his criminal behavior. During observation in the institution, he has psychiatrically improved greatly. In a less controlled setting such as return to the community, this inmate could be considered likely to hold his present gains.”
In a 1995 report conducted by Dr. Donald R. Walk, the doctor indicated that while in San Quentin and Soledad state prisons, Rosales “involved himself in an extensive therapy and is able to clearly understand the psychodynamics about his crime. During his therapy he has also resolved the abuse issues.” The doctor indicated that Rosales “expressed appropriate appreciation for the victim’s mother and family appearing at his hearings in that it has given him a much deeper feeling, and the concept of remorse.” The doctor stated Rosales was “in good health” and that there was “no diagnosable mental disorder.” The doctor concluded that “[i]n a less controlled setting, such as return to the community, this inmate is likely to hold present gains. He was not criminally oriented nor violent prior to his offense and has not been so in the past 16 years. He has also gained additional insight and understanding about himself through a variety of psychotherapies.”
In a 1999 report prepared by Dr. Louis L. Beerman, the doctor indicated that Rosales has a good relationship with his mother. She visits him and they write to one another. The doctor referred to Rosales’s year in the Marine Corps during which he received a “Meritorious Award for Good Conduct.” However, his discharge was less than honorable due to this offense. The doctor indicated that Rosales has never been diagnosed with any serious physical or mental illness and that he has no “history of homicidal, assaultive behavior with the exception of the [i]nstant [o]ffense.” It was noted that Rosales “feels great remorse for the family of his victim [and] understands that alcohol played a part in his crime. He knows that he should have walked away from the confrontation which resulted in [the] [i]nstant [o]ffense.” The doctor indicated that “[n]o mental health treatment [was] indicated at [that] time. [Further, Rosales was] not taking any psychotropic medication and his prognosis for continuing a stable life [was] excellent.” In conclusion, Dr. Beerman stated that Rosales “does not pose more than a normal risk factor whether in or out of a controlled environment” and would be “a reasonable candidate for parole.”
Dr. Barbara E. McDermott evaluated Rosales in 2004. She initially noted that Rosales admitted to three disciplinary reports: two for possessing homemade alcohol (pruno) in 1981 and 1982, and one in 1985 for flooding the tier while attempting to bathe. It was noted that, although in the past Rosales had used alcohol, marijuana and PCP, he “ha[d] remained substance-free for the majority of his incarceration.” In addition, he did not qualify as one with an antisocial personality disorder. The doctor stated: “His instant offense is the first time Mr. Rosales has been convicted of a crime. Although his offense was extremely violent and serious, he has not exhibited the pervasive disregard or violation of the rights of others required for this diagnosis. He has not repeatedly exhibited behaviors that are grounds [for] arrest. He has not evidenced deceitful behavior or attempted to con others for personal profit. He is not typically impulsive and has not been involved in repeated physical fights or assaults either prior to or during his incarceration. He exhibits responsible behavior, given the limits of his confinement. He expresses remorse for his crime and appears sincere in this expression.” Dr. McDermott concluded that, in her opinion, “with reasonable medical certainty,... Daniel Saul Rosales presents a minimal risk of danger to the community if released. Mr. Rosales’[s] low risk of violently reoffending is based on both static/actuarial and dynamic/clinical variables.”
The doctor listed the following as factors suggesting Rosales is at a low risk of committing future offenses: “1. Mr. Rosales has no history of violence prior to the committing offense. [¶] 2. Mr. Rosales has never been convicted of a crime previous to this offense. He was arrested on one occasion, though these charges were dismissed. By Mr. Rosales’[s] report, which is consistent with the DA’s report, he was not involved in the incident that led to his arrest. [¶] 3. Mr. Rosales has not committed violent acts while incarcerated and has remained discipline-free for the majority of his incarceration. He has evidenced good adjustment to his incarceration and has received training in a variety of skill areas. [¶] 4. Although Mr. Rosales’[s] victims were female, there is no evidence that he bears particular hostility towards women. Additionally, the structured violence risk assessments are associated with all types of violence, including violence directed towards women. [¶] 5. Mr. Rosales has no psychiatric disorder other than substance use disorders and therefore has no psychiatric symptomatology that might lead to future offending. Psychiatric symptoms were not associated with his current offense. [¶] 6. Although substances were a factor in his crime, Mr. Rosales has remained substance-free for most of his incarceration, with the exception of the initial years at San Quentin (1981 and 1982). He is committed to maintaining his sobriety, as evidenced by his participation in Alcoholics Anonymous. He plans to continue attending AA on his release. [¶] 7. Mr. Rosales has insight into the reasons for the commission of his crime. He has developed skills to assist him in similar situations and can identify alternatives to his previous behavior. He expresses remorse for the victims, especially because his victims were female. [¶] 8. Although gang activities were abundant in his neighborhood of origin, Mr. Rosales was able to resist involvement and engaged only in prosocial behaviors in his youth (sports). [¶] 9. Mr. Rosales has a supportive family who are willing to assist him if he is paroled in providing both housing and potential employment. [¶] 10. Mr. Rosales has very specific plans for his release, including both occupational and educational. Additionally, Mr. Rosales has used his time in prison to develop additional job skills.”
Dr. McDermott listed the following as “[f]actors associated with a higher risk...: [¶] 1. Mr. Rosales was young when he committed his offense. [¶] 2. Mr. Rosales’[s] parents separated prior to the age of 16. [¶] 3. Mr. Rosales has never been married. [¶] 4. Mr. Rosales’[s] father had an alcohol problem. [¶] 5. Mr. Rosales had a substance use problem and substances were involved in his offense. [¶] 6. Mr. Rosales was the victim of child abuse.”
Dr. McDermott concluded that Rosales “exhibits many more factors associated with a decreased risk of future violence than with an increased risk. Research has indicated that these assessments are associated with all types of violence and as such, Mr. Rosales presents no more risk to women than he does to the population at large.”
In 2004, Rosales was also evaluated by Dr. Richard Starrett. As aggravating factors, Starrett indicated that the crime “involved great violence, as the victims were repeatedly stabbed, the inmate used a weapon, the crime involved multiple victims, and the inmate was convicted of other crimes with which consecutive sentences could have [been] imposed.” As mitigating factors, Starrett indicated that “[t]he victims did confront and attempt to physically delay the inmate. The inmate had an insignificant record of prior criminal conduct or no record. The inmate was intoxicated with alcohol, marijuana and PCP, impairing his judgment.” Starrett indicated that Rosales “takes responsibility for his crime. He expresses remorse for the victims. He has attempted to make restitution. He has changed his life. Upon release, this author would like to see this individual in some kind of one-to-one therapy that he can’t get while incarcerated, to explore the relationship between his father’s abuse of the mother and his father[‘s] abuse of him and then the mother’s abuse of the sisters in relationship to his life and women’s issues.” Finally, Starrett stated, “[t]he inmate plans to return to his family. He has lots of letters for family support. He has lots of job offers. He has solid plans for the future. He looks very good.”
3. The Board’s February 26, 2008 hearing.
The hearing held on February 26, 2008 was Rosales’s seventh parole consideration hearing. The presiding commissioner indicated that Rosales’s life term had begun on October 21, 1980 and that he had first become eligible for parole on September 5, 1987.
Rosales’s counsel read into the record a statement by Rosales in which he expressed great remorse for the crimes committed, acknowledging that their effect extended farther than he could have imagined. He indicated he understood that the crimes “still touch[ed] the hearts of [the victims’] family, friends, and the community.” Rosales stated: “To everyone affected by my actions, I say that I am genuinely sorry. I am profoundly compunctious of the devastation I caused and the pain that I placed in their hearts. For years, I have struggled with the thought of wishing I could undo the crime I committed. Struggled with the guilt and knowing that I cannot and struggled with the knowledge that no matter how hard I wish or pray, the victim’s family will never get over the loss of a loved one.”
The Board considered Rosales’s prison record and noted that, since his last parole hearing, he had worked in the “vocational lens lab, receiving satisfactory work reports. On March 21st of ‘05, [he] received a letter of appreciation for being an exceptional worker as a Spanish transcriber and editor for closed caption of the EAP video.” The Board noted that Rosales had participated in AA and a stress management program and that he had remained discipline free. Rosales had also completed an anger management seminar and a 90-day Bible study program.
Most recently, Rosales had been working in “Vocational Office Services,” and had completed a course in Microsoft Word. He will next be starting either Access or Powerpoint. With regard to self-help programs, Rosales had completed phases one, two and three of the “Personal Accountability Program.”
Rosales indicated he spends his free time studying the Bible, practicing his guitar, playing in softball and soccer leagues and running to stay in shape. Although his religion is Apostolic Christian Assembly, he attends the Protestant Chapel.
Reviewing Rosales’s history, one commissioner noted Rosales had worked as a “litho worker” and earned a certificate in offset print. In 1981, he had worked in sheet metal. According to one commissioner, the last chrono he could find occurred when Rosales completed 1,985 hours of an 8,000-hour course. Rosales explained that, after he had put in nearly 2,000 hours, he was transferred from San Quentin to Soledad State Prison and was unable to complete the course. Instead, in 1989, Rosales completed a program in Drafting and Structural Steel, a course he has a certificate for. Rosales has also been certified as a welder and, in 2005, received a certificate as a Braille transcriber. In short, Rosales has worked and participated in training programs whenever possible and has numerous certificates for acquiring various skills. In addition, he has received five certificates of appreciation for participating in the Folsom Project for the Visually Impaired. Rosales also participates as a volunteer in the “recreation aid program” assisting mentally and physically disabled inmates by visiting with them and “escort[ing] them places... they need[] to go.”
With regard to self-help programs, Rosales had refused the opportunity to participate in a program called CADEX which consists of group therapy. Although he has participated in numerous anger management programs and was willing to participate in one-on-one therapy, he felt he was not ready for group therapy. Rosales stated that, while at the time it was offered he was unprepared to work in a group, he would not hesitate to do so now.
With regard to discipline, Rosales had acquired three 115’s, the last one occurring in January 1985. Rosales was found with a “stimulant sedative.” Rosales had acquired four 128’s, the last one occurring in 1985, when he was found in another inmate’s cell.
The Board noted that on October 26, 2007, Rosales refused to be evaluated again by Dr. Starrett. Since he could not evaluate Rosales in person, the doctor attempted to do so based on Rosales’s history. Dr. Starrett wrote in his report that, based on data from the inmate’s records, Rosales’s “general recidivism risk is rated in the low range. This rating is based on the inmate’s past history, drug use, and school history.” Counsel for Rosales then indicated to the Board that, should Dr. Starrett wish to meet with Rosales at this point in time, Rosales would consent to the interview.
The Board noted that Rosales had consented to an interview by Dr. Starrett in October 2004. In the earlier report, Dr. Starrett had indicated that Rosales had expressed remorse for the victims and taken responsibility for the crime. However, at the same interview, Rosales had “said the victims were searching him and he told them that he didn’t do anything wrong, and they were aggressive towards him. He brought the knife out to scare them and they jumped on his back and he threw [one woman] over his shoulder and she came right back at him and he stabbed her.” He stated that his problem was that he was too high on alcohol and PCP and was unable to assess the problem accurately or to talk to the victims. He said that his crime was out of character for him. He stated that, at the time, other guys were standing on the lawn across the street and not helping him. “He didn’t want to be beat up by women.”
The doctor concluded Rosales did not “represent any danger while incarcerated. The inmate (indiscernible) community especially if he does not return to using alcohol and/or drugs[.]” Rosales responded to the report by informing the Board that he was willing to participate in any psychological program which would help him. Rosales stated: “I’m for all this type of therapy. That will... help me, and just to let the Board know that I... am trying, you know, to comply” with the Board’s requirements for a release date. In response, a deputy commissioner stated: “And I’m going to be right up... front with you here, Mr. Rosales. You know, I see déjà vu with the refusal to participate in [the interview with Dr. Starrett. You] used poor judgment once again.”
Counsel for Rosales then addressed the Board and stated: “I want to bring out that... you put two psych reports on the record. One [Rosales] didn’t participate in. The 2004, October one he did participate in. There was also a November of 2004 report that he did participate in. The findings in that one indicated that the author concludes that Mr. Rosales presents a minimum risk of danger to the community if released. Mr. Rosales is reported in the low risk of violent re-offending based on both static and dynamic clinical variables.” One commissioner then noted that the October and November evaluations had been performed by independent individuals, outside the prison system and paid for by the defendant. As such, the reports might appear in a “central file,” but did not appear in the Board’s file.
With regard to Rosales’s parole, he has three plans. If he were to go to Los Angeles, he could live with his mother. If he wished to live in Lancaster, he could live with his brother. Since he has a number of marketable skills, Rosales believes he could get a job in either Los Angeles or Lancaster. He has been offered a job as a truck driver in Los Angeles. However, he believed he would be required to take a six-month course in order to drive the trucks and, during that time, he would support himself with one of his many skills. Rosales had not sent out any other letters or resumes regarding employment because it had been his experience that employers simply write back and direct the inmate to apply when they have actually been granted parole and are able to begin working.
As an exhibit to Rosales’s petition, he has provided a letter, dated August 30, 2007, from the president of the Double R Trucking Company indicating that Rosales will be provided with the “training and support” necessary for him to join the company as a professional truck driver. The letter neither states nor infers that Rosales must go through a six-month training period without pay.
Rosales’s third plan is to go to Stockton, where his church is, and to utilize state job specialists in the parole office to assist him in obtaining employment. In addition, the Department of Corrections there has developed a program to assist former inmates in finding housing and employment. In response, the presiding commissioner stated: “Mr. Rosales, let me try to make this more clear... for you. We cannot parole you to a multi-service center... with the hopes that they can maybe help you find a place... to live. You need to have a place to live before you can get paroled.” The commissioner then suggested that Rosales look into “transitional housing.” In addition, the commissioner indicated that Rosales needed letters from his mother and brother indicating that he would be allowed to live with them when paroled.
Rosales has included in the exhibits to his petition his correspondence with a transitional living facility called Havenly Homes in Pomona. In a letter responding to Rosales’s inquiry, his “contact person” indicates he is anxious to “work with” Rosales.
As exhibits to his petition, Rosales has included letters from his brother, sisters and mother. His brother indicates that he will assist Rosales “financially and emotionally to ensure a successful integration into society.” Rosales’s mother states that her “house is always open to [Rosales] and [that] he will not lack the necessities of life.”
When asked how he felt about the four women who were the victims of his crime, Rosales stated he realized he had done a “terrible thing” and that he was “really sorry for what” he had done. When asked whether he had any “prejudices towards any women at any time in [his] life,” Rosales answered “No.” A commissioner then directed Rosales to a statement he had made in 1981. While being interviewed by a psychiatrist, Rosales described the commitment offense as follows: “ ‘[W]ell, it was over these three lesbians jumped on me [sic]. We had been drinking, getting loaded (marijuana and Angel Dust). To me, it was an accident. I had a knife. I had brought it out so they could see it. They jumped on me. They got stabbed.’ ” In an interview in 1986, Rosales again referred to the victims as “lesbians.” The presiding commissioner then addressed Rosales and indicated that it was of some concern that “those kinds of comments [had shown] up in [Rosales’s] history.” The commissioner was concerned that Rosales had “issues” with women. Rosales responded that he only had been stating a fact. Earlier in the evening he had seen the women dancing with each other and giving each other kisses and he had, therefore, assumed they were lesbians. He assured the commissioner that the crimes had not been committed because the victims were women.
The district attorney argued Rosales still remained a “danger to the community, should he be released on parole.” The district attorney indicated that the commitment crimes involved multiple victims: the “killing of one and the wounding of three.” He stated that the victims “were [all] young women whose only thought was to attempt to have a drunk, drug-abusing auto burglar brought to justice. The motive for the attack was very trivial.... Instead, a trained Marine, who had been [through] boot camp and infantry school, found it necessary to draw a [13-inch] Bowie knife, and... slash his way to freedom.” However, what the district attorney emphasized most was Rosales’s attitude toward the crimes. The district attorney stated: “Both the 1989 and the 1995 Panels told the prisoner that they did not believe his version, and since his version hasn’t changed any, I see no reason to believe it now. As [one psychiatrist] recounted [Rosales’s] story,... [the prisoner believed] he was carrying on an innocent little crime, and... the victims were simply old fashioned enough to object. This was a horrible crime carried out by a person who had gone through extensive combat training and who should have found a less violent way out....” With regard to his previous record, although Rosales had no prior felony convictions, the district attorney pointed out that Rosales had been implicated in a gang shooting. He had not been prosecuted for the offense because the district attorney “felt that there was [a] lack of sufficient proof to prove the case beyond a reasonable doubt.” However, on the night of the commitment crimes, Rosales had been in a car with a number of other East Side Dukes gang members when the car was stopped by a police officer. Finally, Rosales, who had run from the scene of the murder, was arrested in the house of a member of the East Side Dukes gang.
When addressing Rosales’s use of drugs, the district attorney indicated that in a 2005 psychiatric report, Rosales had related to the psychiatrist how he had been able to avoid mandatory drug testing while in the Marines. The district attorney continued, “If [Rosales] was this deceptive and manipulative in a structured military environment, would he be any different in prison or in free society? It is this manipulation [and] deceit that is at the heart of my opposition to setting a parole date.”
The district attorney also believed Rosales had “issues” with women. Although Rosales indicated he had randomly slashed with his knife, he cut each of the women’s breasts. In a psychiatric report, Rosales had referred to the victims as “a bunch of lesbians.” When, in 2005, it was time to do another psychiatric report, Rosales refused to participate. He would not speak with the psychiatrist.
Finally, the district attorney stated that, contrary to Rosales’s assertion, it was never promised that he would be paroled in 10 years. Rosales was informed that he must serve a minimum of 10 years before he would be eligible for parole, not that he would be released after 10 or 11 years in prison. Rosales apparently telephoned District Attorney Steve Cooley and asked that he not send a representative to oppose his parole again “because the DA’s office committed a fraud [on] him.” Rosales indicated that the DA had promised that he would be released after 11 years. The district attorney responded, “Well, I was the DA in that case, we have a transcript that’s in the file. That promise was never made. It was clearly explained to the defendant [that] the punishment could be” up to a life term.
The district attorney indicated that he believed Rosales still had not accepted what he had done as wrong and that his “institutional functioning, although exemplary, should be not viewed as a necessarily predictive of conduct in a free community. Until the prisoner accepts what he has done is wrong and does not attempt to minimize his guilt by spurious claims of self-defense and intoxication, the prisoner will remain an extreme danger to society, women in particular....”
Following argument by the district attorney, Rosales’s counsel read into evidence a statement by Rosales. She stated: “ ‘The taking of a human life is the most serious offense our society can conceive of, and the sanctions imposed for such an act are deservedly harsh.... However, in the absence of a sentence of death or life without parole, we must always assume that someone serving any life sentence will be released some day, especially when he started serving a life term as young as I did. I have always understood that concept and have structured my life behind bars for that eventuality. In reviewing my original sentencing transcripts, you can see that the Deputy District Attorney, the judge, and my own attorney all understood that concept and all three making statements on the record that led me to believe that I would be released shortly after serving ten years. Yet, here we are, 28 years later, still debating a release date that not one of the original principals in the trial cou[rt] have ever contemplated, would still be an issue at this late date. I entered into a plea agreement offered by officers of the State and sanctioned by a superior court judge with the reasonable belief that I would be released to parole after a given amount of time [had been] served. This plea agreement, essentially a verbal contract, should be given the same weight as written contracts in California, has been cast aside with a callous disregard for due process. If a company or a person were to refuse to honor a verbal agreement, we would call it a breach of contract. If they entered into an agreement knowing they would never honor it, it would be elevated to fraud. However, when the State, at the direction of the Governor, goes back on their promises to defendants, they simply say they are “getting tough on criminals” and the population naively says, “Oh, in that case, go ahead. That’s not fraud.” I would like to point out that the appearance of the District Attorney at this hearing and in the past and his statement objecting to me being granted a parole date are in direct conflict with the DA’s original promise made to me at the time of accepting the plea agreement. That original promise was that I could be expected to be released after serving ten years, if I did good in prison and stayed out of trouble. At the 28-year mark, almost three decades after I committed my crime, any argument against my release, undermines the intent of the original plea agreement. If it is truly the DA’s position that I should not be released, then their original statements regarding an anticipated release date after serving ten years was obviously a fraudulent lure. My length of incarceration now exceeds even the highest terms set forth in the Board’s own matrix system. Now, almost three decades into my incarceration, this Board is still relying entirely on the nature of the commitment offense to justify my continued confinement. My record shows that I have demonstrated exemplary behavior and evidence of rehabilitation for a significant period of time, 23 years straight to be exact, without any disciplinary infraction. Therefore, the sole reliance on my commitment offense in denying me parole in the past impinges on my constitutional liberty interest in parole. The Board cannot sustain a dangerousness finding forever. Because I cannot change the past, continuingly denying me parole based on the facts surrounding the crime itself, effectively changes my sentence from 15 years to life to life imprisonment without the possibility of parole.... While relying on my crime as an indicator of my dangerousness may be reasonable for some period of time, in my case, continued reliance on such unchanging circumstances after nearly three decades of incarceration and half a dozen parole suitability hearings, violates my due process because my commitment offense has become such an unreliable predictor of present and future dangerousness that it does not satisfy the “some evidence” standard. After 23 years of rehabilitation and remaining disciplinary-free, the ability to... predict my future dangerousness based simply on the circumstances of my crime is nil. I agree that criminals deserve to be punished for their transgressions, but in our quest for justice, true justice, we must first define what justice means in a democratic society. Simply put, justice is punishment but is free of revenge or political influences. What we have in California today does not meet that definition. When you continue to punish me and deny me freedom and liberty for no other reason than revenge or to advance one person’s political agenda, it eats away at hope. It distorts the sense of justice. It can destroy a family. How can you advocate strong family values and at the same time take away all hope of ever being reunited with my mother, brother, sisters, and friends, when you continue to victimize them by the long separation that your parole denials contribute to. Compassion is a virtue bestowed upon by God. To turn our backs on it is an act of ultimate disrespect to him. Despite the obvious disappointment of previous Board hearings, I have kept a positive attitude, doing things to improve my life. In essence, I have done all that can be done and all that can be reasonably expected to have a release date granted. Thank you.’ ”
After then hearing comments from relatives of the murder victim, the Board took a recess to deliberate. When the commissioners returned, they indicated that Rosales was not yet suitable for parole and would, if released, “pose an unreasonable risk of danger to society or a threat to public safety.” The presiding commissioner addressed Rosales and stated: “Mr. Rosales, you know, we spent some time discussing your situation and your behavior and your statements, not only here, but in past hearings and doctors’ reports, et cetera, and I guess what I have to tell you is that you’re not making very much headway very rapidly. We’re giving you a three-year denial again, and I’m going to tell you why. All of the self-help in the world will not help you until you believe it, live it, and feel it. And what I relate to that is that you’ve done a variety of self-helps. I think it stops at your head and doesn’t transfer down to your heart or to your gut. You were more involved in this hearing with pointing fingers at the victims and the District Attorney’s Office rather than you were [in] showing us any signs of insight or remorse. You did not even know the names of the victims. What I found particularly offensive was the fact that you did want to describe your victims as people allegedly under the influence of something and/or lesbians. None of which should have made any difference in you indicating to us what remorse and insight is all about. You came across to us today as very arrogant and self-serving. So those are basically some of my opening statements about why we decided upon what we decided on. The other thing I want to address before I go into this, is your closing statement is inappropriate and I would suggest, [defense counsel], that you have him develop a new... statement, should you represent him again. As it is not fair, necessarily, for a victim’s family members to enter in new evidence or discuss parameters outside their feelings nor is it fair for you,
Mr. Rosales, to sit here and harangue the District Attorney’s Office in a closing statement when it is your responsibility to discuss your suitability for parole. Don’t do it again. It’s a dead subject.”
After indicating that Rosales’s comment about the injustice of keeping him from his family for so long was inappropriate, the presiding commissioner stated: “With that being said, I’m going to go into this and indicate that the summary of the commitment offense came from the November 2007, Board report. I am not going to dwell on the details of this crime because I think it’s been painful enough today, but I would indicate that this commitment offense was carried out in an especially cruel and callous manner. In my mind, Mr. Rosales, let’s be real. You were a Marine carrying about a Bowie knife. We didn’t ask you why you had a knife, but I would very much venture a guess because of your association [with] gangs. And for whatever reason, you killed a young woman and mutilated three others to the point where some can’t bear children. And if you were to ask me again, I would say your intent to assault, where you assaulted them, on the breast, on the stomach, was intentional, for you to be able to create the most harm that you could. And you did. And, unfortunately, for you, you want to continue to blame them for that behavior.”
The only reference to gangs is contained in the district attorney’s argument and the commissioner’s comment. There is no evidence Rosales was involved with a gang. To the contrary, it can be inferred from at least one of his psychological evaluations that Rosales avoided gang members and activities related to gangs.
Turning to Rosales’s institutional behavior, the presiding commissioner stated: “[O]n [the] one hand I want to commend you, sir. You have a classification score of 19, as low as it can go. You haven’t received a disciplinary since 1985. That’s excellent. I would recommend that you keep it that way.... You are developing some good vocational skills. You’re currently involved in office services. You have a welding certificate.... I’m very impressed with the Braille transcription certificate that you received in ‘05, and you also have received laudatory chronos for your Spanish transcription work.... You’ve taken some self-help classes.... For somebody studying AA, it was hard for you to translate your memorized steps into actual life skills. And it was very difficult for you to explain to us or offer us much in the way of insight, or remorse as I’ve mentioned before, when it comes to your behavior and your victims. So, obviously we want you to do some more self-help. With regards to the psychiatric evaluation, we have half of an evaluation.... Dr. Starrett did one without you in October of ‘07. I, too, have some concerns about your lack of participation in that the prior Board did want your participation. They made it clear to you that they did, and you chose not to.... Based on what your attorney has indicated to us, we are requesting a new psychological evaluation, and I will guarantee you, if you don’t participate, you won’t get a date, because that’s a very important part of this process and it would serve you well.”
As an exhibit to his petition, Rosales has included a letter from the Executive Director of the Board of Parole Hearings dated January 26, 2006 which indicates that, unless an inmate has been diagnosed as one requiring the services of the Mental Health Services Delivery System (MHSDS), after an initial evaluation, “subsequent lifer hearings for non-MHSDS inmates will not be generated thereafter.”
As to Rosales’s parole plans, the Board determined they were “very, very weak.” The commissioner continued, “As you know... you have no ties to San Joaquin. You have no resources. Parole planning offices and parole officers do not have the time or the ability to go out and find you a place to live or find you a job.... If you were to parole back to LA, you had no support letters indicating that you had a place to stay. You had a job offer that didn’t pay any money for at least six months, so you really need to seriously put together some very strong parole plans that include where are you going to live?... What will you do to maintain your sobriety in the community? How much is it going to cost? Develop a budget.”
In his petition, Rosales has included as exhibits letters from his mother and brother indicating that he would be given a place to stay and financial assistance until he is able to be self-supporting. In addition, he has provided two letters from potential employers.
In conclusion, the presiding commissioner stated: “[T]his hearing Panel finds that Mr. Rosales has been convicted of murder, and it is not reasonable to expect that parole would be granted at a hearing during the next three years. Mr. Rosales, you’re really going to have to light a fire to deal with feelings and emotions, not textbook learning. You have to put it to use. This commitment offense was terrible. There was no need whatsoever. None. You could have walked away the first time the victim found you out by her car, and you chose not to. So, when you can come to terms with that commitment offense, at least with yourself as to why you chose the path you did, it will be beneficial [to] you. As well, you need to work real hard on parole plans, and I think you probably realistically ought to take a look at developing a couple sets again, like you were trying to before. You need to do some self-help that delves into situations and relationships with women, be it domestic violence, battered partners syndrome, whatever. You’ve got something going on there.... We will get you a new psych [report] as well. Hopefully, you [will] participate.”
4. The applicable law.
Release on parole “is the rule, rather than the exception.” (In re Smith (2003) 114 Cal.App.4th 343, 351.) The statutory parole scheme vests in every inmate a constitutionally protected liberty interest in parole release. (In re Rosenkrantz (2002) 29 Cal.4th 616, 660-661; In re Barker (2007) 151 Cal.App.4th 346, 365, fn. 16.) Thus, a parole release date must be set unless the Board determines that public safety requires a lengthier period of incarceration. (In re Lawrence (2008) 44 Cal.4th 1181, 1191; In re Rosenkrantz, supra, at pp. 654, 676-677; § 3041.)
In determining suitability for parole, the board must consider certain factors specified by regulation. (Cal. Code Regs., tit. 15, § 2402, subds. (c) & (d).) Circumstances tending to show unsuitability for parole are that the inmate (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) has a previous record of violence; (3) has an unstable social history; (4) has sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (Id., subd. (c); In re Lawrence, supra, 44 Cal.4th at p. 1202, fn.7; In re Rosenkrantz, supra, 29 Cal.4th at pp. 653-654; In re Gray (2007) 151 Cal.App.4th 379, 399.)
The regulations specify the factors the Board should consider in determining whether an offense was “especially heinous, atrocious or cruel.” Those factors are: (1) multiple victims were attacked, injured or killed in the same or separate incidents; (2) the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (3) the victim was abused, defiled or mutilated during or after the offense; (4) the offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering; and (5) the motive for the crime is inexplicable or very trivial in relation to the offense. (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1).)
Circumstances tending to show suitability for parole include that the inmate (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his or her life, especially if the stress had built over a long period of time; (5) committed the crime as the result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use upon release; and (9) has engaged in institutional activities that suggest an enhanced ability to function within the law upon release. (Cal. Code Regs., tit. 15, § 2402, subd. (d); In re Rosenkrantz, supra, 29 Cal.4th at p. 654.)
Our review of the Board’s decision is deferential. (In re Lawrence, supra, 44 Cal.4th at p. 1204; In re Shaputis (2008) 44 Cal.4th 1241, 1255 (Shaputis).) “[T]he judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law, but that in conducting such a review, the 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.” (In re Rosenkrantz, supra, 29 Cal.4th at p. 658.) “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 Board. (Id. at p. 677.) “[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... 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 decision. (Ibid., italics added; In re Lawrence, supra, at p. 1204.)
The California Supreme Court has clarified the standard of review and the question as to when the gravity of the commitment offense and prior criminality is insufficient to deny parole when the prisoner otherwise appears rehabilitated. The fact that an inmate committed the commitment offense in a heinous manner cannot always be used to justify the denial of parole. The Lawrence court concluded that “because the core statutory determination entrusted to the Board... is whether the inmate poses a current threat to public safety, the standard of review properly is characterized as whether ‘some evidence’ supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous.” (In re Lawrence, supra, 44 Cal.4th at p. 1191, italics added.)
The determination of current dangerousness is not exclusively dependent upon whether the circumstances of the offense exhibited viciousness above the minimum elements required for conviction. (Shaputis, supra, 44 Cal.4th at pp. 1254-1255.) In Shaputis, the Supreme Court affirmed that denial of parole is not a violation of due process when the circumstances of the crime continue to be predictive of current dangerousness despite an inmate’s discipline–free record during incarceration. (Ibid.)
4. Application to this case.
Applying the factors to be considered in determining whether parole should be granted, it must be concluded that the commitment offense was committed in an especially heinous, atrocious and cruel manner. There were multiple victims, the victims were mutilated during the offenses, the offenses were carried out in a manner which demonstrates a callous disregard for human suffering and the motive for the crimes was inexplicable or very trivial in relation to the offenses. (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1).)
Although the heinous nature of the commitment offense can be relied upon to justify the denial of parole, such reliance does not appear to be appropriate here. Applying the regulations to Rosales, we note he has no previous record of violent criminal activity. As a juvenile he was apparently arrested for shooting at an inhabited dwelling, but charges for the offense were never filed because there was a lack of evidence connecting him to the case. Unlike in Shaputis, supra, 44 Cal.4th at pages 1251-1252, where the defendant had a “ ‘schizoid quality to interpersonal relationships,’ ” Rosales has no such history. He is in contact with his mother, brother, sisters and friends.
In Shaputis, supra, 44 Cal.4th 1241, the defendant shot and killed his wife. The California Supreme Court determined that “some evidence in the record support[ed] the Governor’s conclusion that [Shaputis] remain[ed] a threat to public safety in that he ha[d] failed to take responsibility for the murder..., and despite years of rehabilitative programming and participation in substance abuse programs, ha[d] failed to gain insight into his previous violent behavior....” (Id. at p. 1246.) Although the evidence was to the contrary, Shaputis nevertheless insisted the shooting had been an accident. The Supreme Court determined that, due to Shaputis’s attitude and prior conduct, the commitment offense was not “an isolated incident, committed while [Shaputis] was subject to emotional stress that was unusual or unlikely to recur.... Instead, the murder was the culmination of many years of [Shaputis’s] violent and brutalizing behavior toward the victim, his children, and his previous wife.” (Id. at p. 1259.) In addition, Shaputis had “found ‘inexplicable’ his daughters’ prior allegations of molestation and domestic violence [and] had a flat affect when discussing these allegations[.]” (Id. at p. 1252.)
Other factors tend to show Rosales’s suitability for parole. He has expressed remorse for the crimes committed, lacks any significant history of violent crime, and is of an age that reduces the probability of recidivism. Rosales committed the offense when he was only 18 years old. He is now 49 years old. He has made realistic plans and, while incarcerated, developed a number of skills that can be put to use upon his release. He has letters from both his mother and his brother indicating he will be provided with a place to live and the necessities of life. In addition, he has documentation of two job offers, one at a trucking firm and one at a contracting company. Rosales has engaged in institutional activities, such as self-help groups and Alcoholics Anonymous. He is an active participant in his church. These activities will aid him in functioning within the law upon release. In addition, Rosales has participated in projects to help other inmates, such as the Folsom Project for the Visually Impaired and the “recreation aid program.” Finally, his behavior while in prison has been exemplary. He has not suffered a disciplinary proceeding since 1985 and, even then, it was not for a violent act; he was apparently discovered with a “stimulant sedative” and had been in another inmate’s cell.
Factors disfavoring a grant of parole include, in addition to the heinous nature of the commitment crimes, Rosales’s refusal to be interviewed by the prison psychiatrist and his refusal to participate in group therapy. Rosales, who was favorably evaluated by outside psychiatrists in 2004 and 2005, refused to be evaluated by the prison psychiatrist in 2007. He has since, however, stated that he would have no objection to being evaluated now. In addition, although he was not previously ready to participate in group therapy, he would do so now.
Rosales has provided as an exhibit to his petition a memorandum from the executive director of the Board dated January 26, 2006 indicating that “[i]nmates who are not a part of the MHSDS will have initial psychological reports generated upon entry into the Department of Corrections and Rehabilitation. Psychological Reports [for] subsequent lifer hearings for non-MHSDS inmates will not be generated thereafter.... [¶] For inmates not assigned to the MHSDS, the following procedures are to be used: [¶] In cases where a psychological report has been ordered by a previous panel but not provided to the institution, the current panel shall not postpone a current hearing. The panel shall proceed with the hearing in the absence of the report. [¶]... [¶] Psychological reports shall not be ordered for the purposes of evaluating parole suitability of non-MHSDS inmates. The one exception to this directive is that if a previous psychological report was cited by the Governor as grounds for a reversal of a grant of parole, then a follow-up report shall be ordered. [¶] The panel may request a follow-up psychological report using the new format for MHSDS Inmates only.”
In denying Rosales parole, it appears the factor the Board relied on most was his perceived lack of remorse. The Board was obviously displeased with Rosales’s closing statement. However, Rosales’s stated displeasure with the Board’s prior denials of parole do not indicate that he did not also feel great remorse for the crimes committed. The two are not mutually exclusive. He indicated he understood that the taking of a human life is the most serious offense our society can conceive of and stated that “[f]or years, [he had] struggled with the thought of wishing [he] could undo the crime [he] committed. [He has] [s]truggled with the guilt and knowing that [he could] not and struggled with the knowledge that no matter how hard [he] wish[ed] or pray[ed], the victim’s family [would] never get over the loss of a loved one.”
It appears likely that, had Rosales’s closing statement emphasized to a greater degree his remorse for the crimes committed, he would have been granted a parole date. This is particularly so in view of Rosales’s exceptional performance in prison and that the circumstances of the crime do not appear to be predictive of current dangerousness. Unlike in Shaputis, where the defendant had exhibited a history of violent conduct, Rosales’s use of violence appears to have been limited to this particular instance. Moreover, unlike Shaputis, who “failed to gain insight or understanding into either his [previous] violent conduct or his commission of the commitment offense” (Shaputis, supra, 44 Cal.4th at p. 1260), Rosales has expressed what appears to be sincere remorse for this single instance of violence. The record, read as a whole, reveals no evidence that Rosales poses a current risk to public safety.
DISPOSITION
Rosales’s petition for writ of habeas corpus is granted. The Board of Parole Hearings is ordered to vacate its decision finding Rosales unsuitable for parole and is directed to conduct a new parole suitability hearing within 30 days of the issuance of the remittitur in this matter. At that hearing, the Board is directed to find petitioner suitable for parole unless either previously undiscovered evidence or new evidence subsequent to the 2008 hearing, regarding his conduct, circumstances, or change in his mental state, supports a determination that he currently poses an unreasonable risk of danger to society if released on parole. Pursuant to California Rules of Court, rule 8.387(b)(3)(A), this opinion shall be final as to this court within five days after it is filed.
We concur: KLEIN, P. J. CROSKEY, J.
In another letter, dated February 1, 2004, the owner of a construction company states that he has known Rosales since high school and that, when paroled, Rosales “will have a job waiting.”