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In re Rico

February 26, 2009; as modified March 3, 2009


PETITION for writ of habeas corpus. Steven R. Van Sicklen, Judge. Writ granted. (Los Angeles County Super. Ct. Nos. BA055023 & BH004913).

The opinion of the court was delivered by: Aldrich, J.


In 1993, petitioner Daniel Rico was convicted by a jury of second degree murder with a principal-armed enhancement. He was sentenced to a term of 16 years to life in prison. In 2007, the Board of Parole Hearings (BPH) for the third or fourth time found Rico unsuitable for parole, based solely on the gravity of his commitment offense. Rico challenged the BPH's 2007 decision by way of a petition for writ of habeas corpus in the superior court, which was denied. He then petitioned this court for relief, urging that the BPH's decision was not supported by ―some evidence‖ he poses a current threat to public safety. We issued an order to show cause and requested the appointment of counsel for petitioner. We now conclude that the BPH's decision to deny parole is not supported by evidence that Rico's release would pose an unreasonable threat to public safety. Accordingly, we grant the writ petition.


1. The Commitment Offense

In 1992, Rico, who was 19 years old, was a member of a gang known as ―The Magician's Club‖ (TMC). He owned a primer-gray painted vehicle.

In early March of that year, members of the rival White Fence gang shot at Rico's car as it drove down the street. Three days later, on March 6, 1992, Rico, accompanied by one or two passengers, drove his car down a street where three White Fence gang members were congregating around and inside another vehicle. One of Rico's passengers shot at one of the rival gang members, killing him with a single gunshot wound to the chest. On August 13, 1993, a jury found Rico guilty of second degree murder with a principal-armed enhancement. (Pen. Code, §§ 187, subd. (a), 12022, subd. (a)(1).) He was sentenced to 16 years to life in prison. We affirmed his conviction in 1995.

2. Parole Hearing History

Rico was received at the California Department of Corrections on October 29, 1993. His minimum parole eligibility date was November 6, 2002. The BPH denied parole at his initial suitability hearing in 2002, and again in 2006.*fn1 Rico appeals from a subsequent March 1, 2007 one-year denial. At that time he had been incarcerated for approximately 15 years. The following information was reviewed at the 2007 hearing.

a. Prior Criminal Record

Rico, who was born in 1972, left high school in the 10th grade, when he became involved with the TMC gang. He was arrested at age 15 for possession of a controlled substance, and completed a drug diversion program. In 1990, as an adult, he was arrested for carrying a loaded firearm in a public place (Pen. Code, § 12031, subd. (a)). He was placed on probation and served 30 days in county jail. In 1991, he was convicted of misdemeanor possession of a deadly weapon with the intent to assault another (Pen. Code, former § 467 [renumbered in 1994 as Pen. Code § 12024].) Based on the only evidence in the record, the deadly weapon at issue was a stick.

b. Rico's Prison Conduct

A ―Disciplinary Sheet‖ provided by the Warden shows that during his years of incarceration, Rico had two CDC 115's,*fn2 the last one occurring approximately 12 years before the hearing. An August 1994 CDC 115 was issued for having his name, Rico, tattooed on his stomach. The other, in May 1995, was for refusing a urinalysis test. Rico explained at the 2007 hearing that he had not been involved with drugs when he refused the test, but ―still had a problem with authority‖ and did not wish to displease his cellmate by agreeing to be tested. He explained to the BPH that he has ―completely gotten over‖ his issue with authority.*fn3

Rico had seven ―CDC 128's‖*fn4 while incarcerated, the last one occurring in May 2000 for reporting late to work. The others were for having a window covering (July 1994), not returning to his cell (July 1995), not reporting to class (May 1997), contraband (July 1998), leaving an assignment without authority (March 2000), and disobeying a direct order (May 2000).

At the 2007 hearing, the BPH noted that Rico had complied with its recommendations, made at an earlier hearing, to stay discipline-free, learn a trade, get therapy, and earn positive ―chronos.‖ He had shown ―continuous involvement since at least the year 2000‖ in Alcoholics Anonymous (AA) and Narcotics Anonymous (NA). He had taken anger management classes. He had received positive ―chronos‖ for good work and involvement in community projects.*fn5 He obtained his General Education Diploma (GED) in 1997 while in prison and, at the time of the 2007 hearing, was close to obtaining his Associate of Arts (AA) degree. He had worked in the optical, culinary, and welding departments, and as a porter. He had obtained certifications in small engine repair and quality management. He was classified as a ―Medium A‖ prisoner, the lowest security level for a life term prisoner. (See In re Roderick, supra, 154 Cal.App.4th at p. 256, fn. 9.)

c. Parole Plans

Rico, who was born in 1972, is a Mexican citizen whose family came to the United States when he was two years old. An INS hold has been placed on him. He recognizes that he will likely be deported when he is released, and cannot return to the United States unless there is ―some legal way‖ he can do so. He speaks Spanish.

Rico's family is close knit and his parents remain married; they have no history of domestic violence. He has at least two offers for job interviews and potential employment in the United States, from managers at two companies who are aware of his crime and history of incarceration. Rico also has at least four offers from relatives to house and support him in the United States, i.e., from (1) his parents, who have moved away from their old neighborhood; (2) from a brother who is gainfully employed and owns his own home; (3) from a sister who owns her own home, is employed and also has a family business; (4) from a brother in Michigan who owns a large home and believes he could obtain a job for Rico within a few days, due to his friendship with several local business owners; and (5) from a brother who was close to completing his Master's degree from, and currently works at, the University of California Davis. That brother has offered to house, support, and provide assistance to Rico while Rico finishes his college degree at UC Davis, and provide financial support if Rico is deported to Mexico after release. A first cousin who lives in Mexico and is employed as a manager of production has offered to house Rico and immediately provide him with employment at his company should Rico be deported.

d. Mental Health Evaluations

The most recent mental health evaluation, prepared on September 15, 2005, concluded that Rico was no more dangerous to society than the average person. Rico had no mental or emotional disorders. He had completely disassociated himself from gangs. The evaluation observed that although Hispanic gang activity in the prison was ―serious and ongoing,‖ Rico had been ―very careful to disassociate himself from any kind of gang activities‖ and had ―carefully stayed away from these political situations and peer-oriented situations. The fact that he has been able to maintain total independence shows that his desire[ ] to disassociate himself from anything illegal, criminal, or gang-related, is serious.‖ The evaluation noted Rico's close, supportive family and vocational skills that would enable him to support himself if paroled. The psychologist found ―no evidence of mental or emotional problems in this case that would interfere with his being granted a parole date. Inmate Rico has a very good attitude. His seriousness, maturity, and his determination to change his lifestyle completely and live a responsible, prosocial life appear[ ] to be very serious. He impresses as being much more mature than the average, 33-year-old person. He maintains a good attitude towards his prison experience. There is no evidence of any bitterness or resentment in his responses. He openly acknowledges that he did wrong, and that he deserves the punishment he is getting. . . .

[H]e does have strong family support in the United States, as well as in Mexico. The prognosis for successful adjustment in this case is excellent.‖ The psychologist noted that Rico had ―strong feelings of sorrow and remorse‖ which appeared sincere and genuine. Rico had a ―good understanding of the dynamics associated with his behavior‖ at the time of the crime. He understood that he became involved in the gang because of peer pressure and had ―changed significantly since the time of the commitment offense.‖

A 1996 report prepared by a prison psychologist stated, among other things, that Rico was working hard to turn his life around, and had chosen to separate himself from the TMC gang and gang-related activities or associations. There was no evidence of mental disorder. Rico's insight and judgment appeared higher than expected for someone with his age and history. He was ―more mature than generally found in a Level IV inmate who is as young as he is.‖

A 2001 mental health evaluation was less glowing. As with the other evaluations, the examining psychologist found Rico did not suffer from any mental disorders. The evaluation stated that Rico admitted having a past drinking problem. The examiner also opined that Rico had abided by prison rules in an ―off-and-on‖ fashion. In support of this finding, the evaluation cited Rico's CDC 115 violation for tattooing, and incorrectly stated that Rico had additional CDC 115 violations for mutual combat and possession of paraphernalia. It was unknown whether Rico would return to his prior gang affiliations if released; if so, he would present an above average level of danger to the community. The evaluation found it ―interesting‖ that Rico at that time had no alternative parole plans that would have taken him away from the gang environment upon release. Because Rico had acknowledged a significant problem with alcohol, he needed monitoring and subsequent alcohol treatment.

e. The BPH's Decision

In a decision rendered orally by the presiding commissioner, the BPH denied parole, finding Rico was unsuitable because he would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. Before purporting to set forth the reasons for the denial, the presiding commissioner explained to Rico, ―the decisions that we make are subject to an awful lot of review. They're reviewed by the Decision Review Unit and ultimately they're reviewed by the Governor. So any time we send something forward, if we see that there are areas of potential problem, it's not in anyone's best interest to do that and we . . . get that resolved, and that's one of the cases that we have with respect to you I think right now if this record were to go forward that it wouldn't stand scrutiny that it would be placed under. So what we're going to try to do is get that all cleaned up and tell you the areas that we think you could beef up a little bit to make yourself a better package.‖ The board member stated that he did not see Rico spending the rest of his life in prison.

The BPH found the crime had been carried out in a dispassionate and especially cruel manner, demonstrating an exceptionally callous disregard for human suffering. The crime was a gang related drive-by shooting. The 26-year-old victim suffered a severe gunshot wound which injured both lungs, his aorta, and two ribs.*fn6 The presiding commissioner noted Rico's prior criminal record, and observed he had failed on a prior grant of probation. However, the presiding commissioner stated, ―it's not what I would call a significant criminal record.‖ He mentioned Rico's seven CDC 128-A counseling chronos and the two CDC 115 violations, but did not state that the prison conduct supported the denial. He noted that Rico's explanation for the urinalysis refusal was ―certainly plausible.‖ The presiding commissioner also expressed concern about ―significant inconsistencies‖ between the 2001 and 2005 psychological evaluations, but did not state that any particular aspect of either evaluation, or the purported inconsistencies between them, supported a finding Rico was dangerous. Finally, the commissioners recommended that Rico update his support letters, find out if AA was available in the area to which he would be paroled in Mexico, stay discipline-free, continue self-help, ―get a back-up plan‖ to make himself more marketable, and prepare a closing statement that would demonstrate his insight into the crime.

3. Habeas Petitions

Rico petitioned for a writ of habeas corpus in the Los Angeles County Superior Court, which was denied. Rico subsequently filed the instant petition for a writ of habeas corpus.*fn7 We issued an order to show cause on September 9, 2008.

In his petition, Rico contends that the BPH's denial was not supported by ―some evidence.‖ According to Rico, the nature of the commitment offense and his past criminal history are immutable, and can no longer support a parole denial.*fn8 Respondent, the Warden of the Correctional Training Facility (Warden), urges that the BPH's decision reflected individual consideration of Rico's suitability and was supported by some evidence that Rico's release on parole would pose an unreasonable threat to public safety. The Warden contends the BPH's decision was not based solely on the nature of the commitment offense, but instead was also based on Rico's criminal history, institutional behavior, inconsistent psychological evaluations, and inadequate ...

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