Petition for Writ of Habeas Corpus. George W. Clarke, Judge. Relief granted. (San Diego County Super. Ct. No. CR126443)
The opinion of the court was delivered by: McINTYRE, J.
OPINION AFTER TRANSFER FROM THE CALIFORNIA SUPREME COURT
CERTIFIED FOR PUBLICATION
David Vasquez challenges Governor Arnold Schwarzenegger's reversal of a decision by the Board of Parole Hearings (the Board) finding him suitable for release on parole. We conclude there was no evidence to support the Governor's ultimate conclusion that Vasquez was unsuitable for parole because he currently posed an unreasonable risk to public safety. Accordingly, we grant Vasquez's petition for a writ of habeas corpus and reinstate the Board's parole release order.
The facts of Vasquez's offense, as derived from our earlier appellate decision (People v. Vasquez (May 12, 1994, D016853 [nonpub. opn.]), are as follows:
Maria Roth and the victim, Miguel Alarcon, were involved in a volatile romantic relationship and lived together for nine years. In September 1990, the couple had a fight and Alarcon eventually moved out of Roth's apartment two months later. Meanwhile, Roth started seeing Vasquez and agreed to become his girlfriend.
In November 1990, Alarcon became angry after discovering that Roth was Vasquez's girlfriend and told Roth he would "take a bat and beat the fuck out of [Vasquez]." Alarcon later confronted Vasquez and beat him up, causing Vasquez two black eyes and a swollen nose as well as a broken right wrist. Vasquez tried to avoid Alarcon by staying at his brother's house, but his car was broken into, rigged so that it would not start and items (later found in Alarcon's garage) were taken. Vasquez and Roth then moved to his sister's house, which Vasquez believed Alarcon would not be able to find.
Roth warned Vasquez that Alarcon was crazy enough to go after him and that he tended to get violent when he was drunk or on drugs. Roth related one incident in which Alarcon had been caught by the police with a rifle when he had been getting ready to hurt someone because of jealousy. The warnings scared Vasquez, who obtained a .22 derringer from a friend, but later returned it. During December 1990, Roth met with Alarcon and had sex with him twice, but by New Year's Eve, she was back with Vasquez. On January 1, 1991, Alarcon stole Roth's car and later agreed to return it after Roth again stated she would not see Vasquez any more.
Five days later, Alarcon confronted Roth about her relationship with Vasquez and told her he would see her and Vasquez later that night and shoot them. After Roth told Vasquez what Alarcon had said about shooting them, they drove to a friend's house and borrowed a two-shot derringer. When Alarcon later found the couple, Vasquez had Roth get out of the car to hide and then drove off.
Alarcon drove after Vasquez and rear-ended Vasquez's car. Vasquez stopped, got out and started pacing in front of his car. Alarcon also stopped and Vasquez went to the driver's side door of his car. As Alarcon opened the door and started to get out, Vasquez fired his gun. A few seconds after Alarcon got out of the car, Vasquez fired a second shot and the men immediately started fighting. At some point, Alarcon stopped fighting, but Vasquez continued to hit and kick him.
Alarcon died from a gunshot wound to his chest and suffered another wound from a bullet that was fired into his side at a downward 40-degree angle. Alarcon's blood and urine had traces of methamphetamine and a 0.20 blood alcohol content at the time of his death.
After the shooting, Vasquez left town, but returned a few days later and voluntarily went to the police station, waived his Miranda rights and gave a tape-recorded interview. (Miranda v. Arizona (1966) 384 U.S. 436.) During the interview, Vasquez recounted his fight with Alarcon in November and the ensuing harassment. As to the fatal confrontation, Vasquez claimed that Alarcon was holding a gun as Alarcon got out of the car and that he knocked it out of Alarcon's hand. Vasquez then picked up the gun and pointed it at Alarcon as Alarcon advanced towards him. Vasquez told Alarcon to stop, but Alarcon continued to advance. Vasquez said he fired one shot as he backed away but Alarcon was still moving toward him. Vasquez then fired the second shot. Vasquez claimed that Alarcon knocked the gun out of his hand and they fought until Alarcon slumped down. The police did not arrest Vasquez.
Four months later, Roth contacted the police after quarreling with Vasquez and told a detective that she learned Vasquez had not shot Alarcon in self-defense, but had murdered him. The police arrested Vasquez in September 1991.
At trial, Vasquez claimed he was attempting to leave the area to avoid Alarcon when Alarcon rear-ended Roth's car. Vasquez parked the car and got out to look at the damage when Alarcon pulled up behind him. Vasquez claimed that after Alarcon opened the door and put his left foot out, Vasquez took the gun out of his pocket, pointed it at Alarcon through the window and told Alarcon to stay in his car and leave him alone. Alarcon then swung the car door open and the gun "just went off." Vasquez claimed that he reflexively fired a second shot as Alarcon rushed towards him, but that the second shot had no apparent effect on Alarcon. The men fought until Alarcon slumped down.
A jury convicted Vasquez of second-degree murder and found that he had personally used a firearm. The probation report noted that the crime may have been committed out of great provocation because Alarcon had continually forced confrontations with Vasquez and that Alarcon's family had forgiven Vasquez and did not believe he should go to prison. The probation officer indicated he had no alternative but to recommend a 15 years to life prison term for the murder, plus an ...