The opinion of the court was delivered by: Jeffrey T. Miller, District Judge.
ORDER GRANTING 28 U.S.C. § 2254 HABEAS PETITION
George Ledesma ("Ledesma"), a state prisoner proceeding with the assistance of counsel, petitions this Court for a 28 U.S.C. § 2254 writ of habeas corpus. Ledesma is serving an indeterminate sentence of seven years to life following his 1976 guilty plea for a murder he committed in the course of a grocery store robbery. His federal Petition alleges his due process rights were violated by the Board of Parole Hearings' ("BPH") denial of parole at his November 2006 suitability hearing. He seeks reversal of that decision and discharge from custody. Respondent filed an Answer (Dkt. Nos. 11, 12), and Ledesma filed a Traverse (Dkt. No. 13). By Order entered November 25, 2008, this matter was reassigned from the bench of the United States District Court for the Eastern District of California to visiting District Judge Jeffrey T. Miller, United States District Court for the Southern District of California. (Dkt. No. 25.) After consideration of the parties' arguments, pertinent portions of the record, and controlling authority, for the reasons discussed below, the Petition is GRANTED.
The Court reiterates the factual background presented by the Orange County Superior Court in its August 2007 decision to deny Ledesma state habeas corpus relief. (Pet. Exh. K, Doc. 2-4, pp. 54-61.) *fn1 This Court applies the statutory presumption of correctness to the undisputed portions of the state court's factual findings. 28 U.S.C. § 2254(e)(1).
On the evening of October 7, 1976, petitioner and two armed confederates entered a busy Albertsons grocery store in Anaheim intending to rob the same. Petitioner was personally armed with a double-barreled, sawed off shotgun. The assailants emptied a number of cash registers of their contents. When an unarmed 20 year old store clerk was unable to open a safe as requested by petitioner, petitioner intentionally and fatally shot the victim in the stomach at point blank range. The assailants fled the store. Two days earlier, petitioner and his two confederates robbed a Ralphs grocery store in Costa Mesa. One of the victims was seriously injured when he was struck by one of the assailants with the barrel of a shotgun. Petitioner's motive for the crimes was financial gain to support his drug habit.
The record also reveals petitioner sustained multiple juvenile arrests and/or adjudications on charges of theft, possession of controlled substances, burglary, and robbery. Petitioner did not dispute the accuracy of his juvenile criminal record.
(Pet. Exh. K, Doc. 2-4, pp. 3-4 (emphasis added).)
The June 14, 1977 Abstract of Judgment and the June 13, 1977 change of plea and sentencing hearing transcript reflect Ledesma pled guilty to one count of first-degree murder (CAL. PEN.CODE § 187) with personal use of a firearm (CAL. PEN.CODE § 12022.5) and one count of first-degree robbery (CAL. PEN.CODE § 211). (Pet. Exh. B, Transcript pp. 3, 6; Pet. Exh. K, Doc. 2-4, p. 1.) The trial court found Ledesma "is not an habitual criminal" under either CAL. PEN.CODE §§ 644a or 644b. (Pet. Exh. B, Abstract p. 2, # 11.) He received "an aggregate sentence of 7 years-to-life with the possibility of parole." (Pet. P & A p. 3.) His earliest parole eligibility date was in 1983. (Pet. p. i.) "By the time of his 2006 parole hearing, his nineteenth, Mr. Ledesma had served 16 years in excess of the maximum aggregate prison term prescribed by the State's regulations for [the] commitment offenses." (Pet. p. i.)
B. November 2, 2006 Parole Suitability Hearing
Presiding Commissioner Ed Martinez and Deputy Commissioner Diane Lushbough conducted the November 2, 2006 parole suitability hearing pursuant to CAL. PEN.CODE §§ 3041, 3043, and the Rules and Regulations of the Board of Prison Terms governing Parole Consideration Hearings for life inmates. After noting the panel had reviewed Ledesma's Central File ("C-File") and prior transcript, Commissioner Martinez stated, "The purpose of today's hearing is once again, to consider the number and the nature of the crimes that you were committed for, your prior criminal and your social history, and your behavior and programming since your commitment ... for the sole purpose of determining your suitability for parole." (Pet. Exh. A, pp. 5-6.)
Among other preliminaries, Ledesma confirmed: he had never been included in any psychological programs for mental illness problems; he was in the 10th grade when he dropped out of school; while incarcerated, he had earned his GED, an Associate's degree, and needed just three classes to complete his Bachelor's degree. (Pet. Exh. A, pp. 3-5.) Ledesma stipulated to the previous record of his commitment offenses and prior criminality. As was his right, he declined to discuss the facts of the commitment offenses at the hearing because he had done so many times with the BPH, counselors, and psychologists. (Pet. Exh. A, p. 10-11.) He was, however, "willing to talk about his feelings about the crime, the feelings about the victim," and any other issues the panel might wish, preferring to "focus on what he's been doing the last 30 years" while incarcerated. (Pet. Exh. A, pp. 10-11.) The Presiding Commissioner overruled his counsel's anticipatory objection to the panel's consideration of any "115" disciplinary items due to their remoteness in time (the most recent was twelve years prior and all others were another ten years before), stating "all relevant, reliable information shall be considered in determining suitability." (Pet. Exh. A, pp. 9-10.) The Commissioner read into the record details of the crimes from the Investigating Officer's Report *fn2 and Ledesma's September 2006 response thereto:
"Ledesma states the account of the offense is accurate. However, he says the victim was unable to open the cash register and he never ordered the victim to open the safe. He admits he deliberately shot the victim. Ledesma understands what he did was wrong and his frustrations over things not going as planned got the best of him. Ledesma says he is not the same person and his whole philosophy of life has changed."
Ledesma's criminal history was also read into the record:
"No documented juvenile history, but does acknowledge the following juvenile arrest history in a Diagnostic Unit Evaluation dated March 15th of 1985. First arrest occurred when he was about 13 years old, no specifics given. Ledesma also admitted to an arrest at age 14 for heroin ... and burglary. He said he went to juvenile hall for it. Ledesma also said he committed two additional robberies, one at a gas station, and details were not provided on this."
The Presiding Commissioner extracted a "delinquency history" from Ledesma's case summary: "a ?70 to ?75 year bicycle theft, riding and abetting, a burglary, the possession of heroin, and a commitment to boys' ranch," with additional narcotics and drugs history recited to be "glue sniffing in 1972, barbiturates in 1971, claims at least one a week," and "?73, last habit 25 dollars a day." (Pet. Exh. Q, pp. 18-19). The Presiding Commissioner noted the record "[i]ndicates no adult convictions or arrests other than the commitment offense." (Pet. Exh. A, 19:4-11.) In the personal history category, the Presiding Commissioner read into the record:
"Ledesma was born on September 23rd of 1957 to George and Neives Ledesma ... [as] their second child. Ledesma indicated his father was an alcoholic and he acted violently towards his wife and children. He died in 1967 and Ledesma's mother married another man who became an alcoholic two years later. When Ledesma was 15 years old his mother and stepfather divorced. He began drinking alcohol at the age of 12 and by the time he was 15 he was experimenting with several drugs. He quit school after the 10th grade and began to get in trouble with the law. By [the] time he was 18 years old Ledesma said he was spending approximately 150 dollars a day on heroin and committing crimes in order to support his habit. His younger brother Victor was also addicted to drugs at the time. Ledesma worked off and on for his uncles who were construction workers. While incarcerated, Ledesma has earned his high school diploma, AA degree, and is working toward his BS degree. In 1995 he married Annette Ledesma. According to him, approximately two and a half years ago his wife asked for a divorce" [and he indicated on the record that process had started].
(Pet. Exh. A, pp. 19-20 (emphasis added).)
His social network included two brothers and four sisters. His brother "Victor Ledesma, 46, was his crime partner in the incident offense." (Pet. Exh. A, p. 20.) His brother Marcello Reyes, age 33, lived with their mother in Westminster, California, had visited Ledesma two years before the hearing, and wrote him letters. His 49-year-old sister, Sally Ledesma, lived in Lakewood, California, wrote him letters and had visited him most recently five weeks before the hearing. His sisters Gloria Ledesma, aged 47, and Rosalea Reyes, aged 35, maintained no contact with him. (Pet. Exh. A, pp. 20-21.) When asked, Ledesma explained that Gloria had inherited their father's alcoholism, "has been struggling with the bottle ever since I've been in prison," and was homeless, despite their mother's efforts to keep her home, but he had spoken to her about six months earlier when she told him she still thought of him and loved him. (Pet. Exh. A, pp. 26-27.) He described his half-sister Rosalea as "quite introverted," he had not seen her in about seven years, but when they spoke earlier that year, she was "enjoying life, just retired" from a nursing position with Orange County, and Ledesma stated, "I'm waiting to get out there and enjoy life with her." (Pet. Exh. A, pp. 27-28.) His sister Becky Menendez, age 44, lived in Garden Grove, California, had accompanied Sally on her most recent visit to see Ledesma, and also wrote Ledesma letters. His mother, aged 68, maintained "constant contact" and visited him in prison. (Pet. Exh. A, pp. 20-21.) Ledesma has no children.
In colloquy with the Presiding Commissioner, Ledesma described his childhood consistently with the psychological reports of record. He was "pretty happy" while his father was alive, but when his father came home drunk, he would fight with the mother and hit her and the children. Ledesma had difficulty dealing with the aftermath of his father's death. He described himself as angry and self-pitying. He had trouble accepting his mother's remarriage a year later, when he was about 11 years old. (Pet. Exh. A, p. 22.) His stepfather was an alcoholic. His mother divorced two years later.
All I wanted to do was party and get high. It's not who I am and what I am today. I'm very big on education. You can see all everything [ sic ] I did academic and vocationally. If I would've been thinking about now back then, I would've zipped through school, got through a trade, and I wouldn't have done drugs.
The other participants in the commitment offenses "took a deal for two five to life's" for second degree murder. His brother served three years and ten days, had been working for the past 15 or 20 years, and owned a house in Anaheim. (Pet. Exh. A, p. 24-25.) With regard to his personal history, Ledesma added:
Yes, I'd like to say that the same person that was thinking this, that was doing these things no longer sits in front of you. You have your guy going on 50 years old that really applied himself. You know-you was a messed up character when you were growing up. You've got to resolve and fix a lot of things in your life that wasn't doing right. Mainly dealing like drug abuse my drinking-not having any skills educational or vocationally.... [¶] I addressed them. Working on some things psychologically-anger. I had to deal with my anger coping skills. That's basically why I killed a guy, which he didn't have it coming. For that I feel extremely sorry that I was put in a position and grew up to-that I did that to another fellow human being. And I take full responsibility. I shook nothing and I take full responsibility for everything I did, for criminal history past, but this guy that did these things is not the same person that sits in front of you ....
(Pet. Exh. A, pp. 25-26 (emphasis added).)
Turning to "post-conviction factors," the Deputy Commissioner, who had also sat on Ledesma's 2001 BPH panel, noted his last full hearing had been January 6, 2004, at which time he had been denied parole for one year. Ledesma had asked for a postponement of the 2005 hearing to July 28, 2005 to obtain a new psychological report. (Pet. Exh. A, p. 28.) The Deputy Commissioner summarized:
You came into prison [in June 1977] with 108 points. You got down to zero by 1991 and you've been at the mandatory placement score of 19 since that time.... [¶] Your 115's, you do have ten and none during this period of review, which begins January the 6th 2004 .... In fact, you've been free of them for about 12 years.... [¶] And the most recent one was May 6, 1984. So that's been some time ago. You have 13 counseling Chrono's, 128-A's [ i.e., rules violation or behavior reports]. You've been free of those about ten years now. Your last one was July 30th, 1996.
(Pet. Exh. A, pp. 28-29 (emphasis added).)
None of Ledesma's disciplinary infractions involved violence or assaultive conduct. The only material changes to his record since the 2004 hearing included more educational progress, new support letters, and the new psychological report. The Deputy Commissioner confirmed that in addition to Ledesma's progress toward his Bachelor's degree, he had renewed his "radiologist license" through 2007, having first taken the state licensing examination in 1994 or 1995. He had used that skill as "an X-ray tech working in the Department of Corrections from about ?95 to 2002." Although he "loved that work," he was asked to leave the job because, he was told, he had been there too long, and "working too familiar with any one free staff could pose a security risk." (Pet. Exh. A, pp. 29-31.) His other vocational accomplishments included: completion of meat cutting in 1980; air conditioning and refrigeration in 1997; sewing machine operator "in PIA at CMC"; on the "Permanent Critical Worker List as a (inaudible) mechanic," as a repairer of sewing machines, having gone "through a sewing machine repair class right after I was asked to leave as an X-ray tech" for two years, obtaining certification; and on the waiting list for the Furniture Factory, with a goal of "keeping busy and working." (Pet. Exh. A, p. 31.) His work reports were "very good." ( Id.) The Deputy Commissioner observed: "I saw ... many chrono's that said you were on their Permanent Critical Worker List and I understand that you've prepared well to do this in all aspects of the mechanical part." (Pet. Exh. A 34:2-6.) Ledesma produced a chrono from the Fabric Products Superintendent praising his past performance and requesting his transfer to CMC West "to resume using his training as a sewing machine mechanic":
"Ledesma developed into an excellent mechanic before transferring to Avenal State Prison.... Inmate Ledesma's skill and knowledge would be greatly beneficial to the continuing operation of this factory ...."
Addressing the "self-help" and programming factors, the Deputy Commissioner noted Ledesma "had an ongoing and a fairly lengthy participation in NA back at least to ?99, maybe before that," and he "had been a moderator for Yokefellows Peer Counseling" for over 20 years while at CMC. (Pet. Exh. A, pp. 35-36.) In addition to the considerable mathematics associated with his radiology training and license renewals through correspondence classes, in 2005 he had taken "a correctional learning network class" in math and geometry which he "loved", using pamphlets and worksheets inmates complete independently. (Pet. Exh. A, pp. 36-37.) Ledesma added that he had recently completed the first two of five segments of a life skills class, and would like to do more but "the options are very limited" at his prison. (Pet. Exh. A, pp. 37-38.)
The panel acknowledged Ledesma's most recent Psychological Evaluation dated May 19, 2006 prepared by Corinne Schroeder, Ph.D., a "Board Certified Forensic." That report noted polysubstance dependence "in full remission" (Axis I), and antisocial personality disorder "resolved" (Axis II). (Pet. Exh. A, p. 38 (emphasis added).) Although she left the global assessment function ("GAF") score blank, the psychologist stated her professional opinions:
"Mr. Ledesma has not been violent during the almost 30 years of his incarceration. His risk of harm to others is below average for parolee population and equal to the average citizen if he continues to remain clean and sober. He is confident he can do so. His remorse is sincere. He will suffer self-recrimination for the rest of his life. He is confident in his ability to add to and sustain his gains in and out of prison."
(Pet. Exh. A, p. 39 (emphasis added).) Ledesma's counsel read additional portions of the report into the record, substantiating Ledesma's expressions of remorse, insight into his crimes and his adolescent self, and his focus on augmenting his progress in and out of prison. (Pet. Exh. A, pp. 39-40.)
The Presiding Commissioner reviewed Ledesma's parole plans. He intended to live in a spare room at his mother's three-bedroom Westminster home. His brother who also lived there maintained self-sufficient employment renovating office complexes. His secondary plan was to live in Irvine with a woman friend who had purchased a house for that purpose. She and Ledesma planned to marry after his divorce became final. She worked in home mortgages and refinancing, had one adult daughter, did not drink or use drugs, and had no trouble with the law. (Pet. Exh. A, pp. 40-42.)
Numerous letters reviewed on record demonstrated a high level of personal support and significant family outreach efforts to provide options for Ledesma upon his release. Recent letters from his cousin, Augustine Ledesma, and his 35-year-old nephew, Sam Calderon, stated family members would help him get a job and expressed: "My family and I are willing to assist him in any way possible." (Pet. Exh. A, pp. 43-44.) Sandra Rodriguez, a cousin in Garden Grove, wrote:
"George has a lot of family and friends who are willing to help and support him in his life. My husband and I own our own business and would be willing to get him trained in the dog business-dog grooming."
Ledesma's sister Sally Ledesma stated she would be able to help him with anything he needed. His aunt Catalina Galindo stated she was "willing to assist him financially until he gets employment." Vera Ledesma emphasized they "would all be there for him and support him." Guadalupe Gomez offered him a home and assistance in finding a stable job. His sister Rebecca Menendez promised to "help him financially and drive him around job hunting and to AA meetings," and offered to have him stay in her home with her husband and two children. Veronica Felix, a cousin, expressed certainty he would be taken care of by his family to "show him [how] to get back on his feet and help him through life." His aunt Alegandra Ledesma wrote, "From this point he can find a job in his expertise and can complete his bachelor's degree," noting he "also already has a place to stay with his mother, Neives Ledesma." His sister Gloria Ledesma offered to "help him in any way possible for his release, financially, emotionally, anything in my power," expressing her love for him and emphasizing he would have "100 percent family support" upon his release. His sister Rosalea Reyes stated she owned her own home in Orange County and "would be willing and able to assist my brother when he gets out." Sophia Rodriguez, his 32-year-old niece and goddaughter, offered her home and financial support. Petra Guitan, his aunt and godmother, also offered financial and housing support until "he gets back on his feet and finds a job." His mother wrote volunteering the same. A nephew, Vincent, indicated he knew Ledesma "to be loving and caring and a good brother and person," again with promises of a place to live and help finding a job. Lydia Andino, his nephew's fiancé, offered a home and help finding a job, although Ledesma did not personally know her. (Pet. Exh. A, pp. 45-52.) His brother Victor Ledesma wrote in a May 25, 2006 letter: "I'm a homeowner and George is welcome to parole to my home if needed. I am willing to help him financially, emotionally, and spiritually to make his transition into society successfully." ( Id. pp. 51-52.) Two other cousins and two other aunts also provided letters of support. A pen-pal friend of four years, Marilyn Moreno, a fellow inmate's sister, wrote in support of his release. ( Id. pp. 54-55.)
A family friend, Paul M., wrote offering to sponsor Ledesma in AA or NA: "I've been with NA program for many years. Able to sponsor George Ledesma upon release. Take him to meetings, sponsor him, offer support in this program." (Pet. Exh. A, pp. 55-56.) Teresa Menendez wrote to say she had been a member of both AA and NA for 25 years, sponsors several people, and offered "to help assist George Ledesma when he is released to participate in one of the 12-step programs," to "introduce him to other men in the fellowship." ( Id. p. 59.) Robert Salicedo also pledged to sponsor him, take him to AA meetings, and assist with all program steps. ( Id. p. 60.) The record continues:
Concerning employment, it indicates that you plan on getting employment as soon as possible and he [ sic ] still plans to seek employment as an exterminator, construction worker, a landscaper, and most recently you qualified in maintaining your certification on the X-ray technician.
Ledesma had several specific offers of employment. Among others, his niece Rachel Nunez offered him a job at Nunez Roofing. Joy Rodriguez offered him a job at Tri-Star Lending. Robert M. Salicedo offered him a job at Excalimite Exterminating. His nephew's fiancé's sister, Michelle Andino, offered him a position assisting her in loan processing. (Pet. Exh. A, pp. 53-54.) Family friend Carlos Guzman, a service and auto tech manager with American Auto Tow and Auto Repo, wrote to say: "Willing to employ George Ledesma upon his release." ( Id. p. 56, see also pp. 60-65.)
Ledesma's counsel asked him to identify for the panel three priorities upon his release.
Well, number one is I have great remorse for what I did. So, sorry that I was the one that killed Jack. He didn't have it coming. I was a messed up, angry individual which has since took a good look at his life, seen a lot of things wanting, worked on a lot of things, rectified a lot of things, and made my life commitment to live a clean life, sober life do the right thing in life because I didn't when I was younger before Jack. [G]o out and support my family, be a good [ ] son, be a good friend, be a good ... husband again. And to continue on in with AA/NA, continue on availing myself to any educational/vocational programs that I find out there. There's some things I want to do like diagnostic imaging. I want to learn ultrasound, want to go back and get my three classes for my Bachelor's and maybe start working on my masters. [W]ork as an X-ray tech.
(Pet. Exh. A, pp. 66-67 (emphasis added).)
The panel had no "3042 responses" opposing Ledesma's release other than from the Orange County District Attorney. In a closing statement, the Deputy District Attorney ("DA") referred the panel to "copies of the autopsy photos" he had submitted. He noted "the victim's remaining family, his father, had [ ] in the past submitted letters also opposing release." (Pet. Exh. A, pp. 65, 67 (emphasis added).) Ledesma's counsel objected because "we don't know if that's still their opinion at this time" and noting no such letters were identified or provided. ( Id. p. 68.) The Presiding Commissioner overruled the objection, stating he would "allow it" if it was "previously entered." ( Id.) Ledesma acknowledged: "There was one letter before, but I haven't seen it in a few years." ( Id.) The DA ultimately concluded, "Mr. Brown previously submitted a transcript back in 1998 along with it, the tape of the interview with the victim's father indicating his feelings." (Pet. Exh. A, pp. 69-70 (emphasis added).)
In a lengthy argument, the DA acknowledged Ledesma had done "a lot of things that were quite appropriate" and important while in prison, but emphasized, "the overwhelmingly significant factor here is the seriousness of the crime itself." (Pet. Exh. A, p. 70). He pointed to the immutable circumstances of the crime as "most important factor," characterizing "the actions of the defendant" as "particularly callous and absolutely pointless as they've come out." (Pet. Exh. A, pp. 70-71.) The DA stated he was "not convinced" by Ledesma's expressions of remorse and responsibility, expressing doubt "the [supportive] Psychological Reports [are] strictly accurate." ( Id. p. 71.) He represented "for an extended period of time, for the first ten years at least [of the 30] that he's been in prison, that he denied that this act was even intentional" and found "bizarre" Ledesma supposedly "still doesn't step forward and just admit what the heck happened here." ( Id. pp. 71-72.) In challenging the sincerity of Ledesma's remorse, the veracity of his testimony, and the impact of any rehabilitation, the DA argued:
And I think also ..., separating out the earlier robberies and this robbery, and actually, I think that's a very, very significant fact here in determining the seriousness and the extent to which the defendant is rehabilitated and whether he's really taken responsibility for this. Clearly, the defendant has learned the nomenclature and he has learned the words. I mean, he talks about pity party, the anger coping skills took out my suppressed anger. He's learned the language and can give it back to us. But that really doesn't fully address his actions and really minimizes his actions in a lot of ways. Executing somebody at point blank range is more than you know, a pity party or taking out suppressed anger or suppressed ...