FINDINGS AND RECOMMENDATIONS
Petitioner Robert Laucella is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. Petitioner is currently serving an indeterminate life sentence following his 1971 conviction in Santa Clara County by plea of guilty to first degree murder with use of a firearm. Petitioner does not challenge the constitutionality of his conviction, but rather, the execution of his sentence, and specifically, Governor Schwarzenegger's August 31, 2006 reversal of 2002 decision of the Board of Parole Hearings ("Board") finding him suitable for parole.
The facts of petitioner's life crime were set forth in the unpublished opinion of the California Court of Appeal, Sixth District:
On September 11, 1971, at approximately 5:00 p.m. Laucella, age 20, and two 19-year-old friends robbed a musical instrument store. Laucella shot the store clerk in the chest with a small caliber handgun. Police were called to the scene of the robbery at approximately 10 minutes to 6:00 p.m. When they arrived the store clerk was lying face down on the floor. He had a small round puncture wound in his chest and was in a state of semi-consciousness. He was taken by ambulance to the hospital where he died five hours later, after surgery.
Before he went into surgery, he told the police that he had been working inside the Moyer Music Store and was waiting on two subjects that were interested in buying some musical instruments. The suspects had told him to open up the rear door of the store so that they could load the equipment that they were purchasing into the van. He replied that the doors were locked and he would not open any rear doors until they finished the transaction. He continued to talk with the two suspects and one of these individuals, subsequently identified as defendant Laucella, reached into the waist area of his pants and produced ... a .22 caliber automatic pistol. Defendant Laucella pointed the weapon at the victim and fired one shot at him. After this shot was fired and the victim was hit, defendant Laucella stated, 'Sorry, don't worry, it's just a flesh wound- good shot.' As he was lying on the floor, the store clerk thought he heard a motorcycle come to the front of the store and then observed a third subject walk to the front door. The third robber then entered this establishment and questioned defendant Laucellas as to why he had shot the victim and for him to call an ambulance. The victim also told the police that Laucella and the second robber had been in the store earlier that day.
A married couple parked in front of Moyers' saw someone standing in the doorway of the store. The man of the couple thought the store sign said "open" when they arrived, but then he noticed the sign said "closed." The couple heard a muffled sound they could not identify and the man thought he saw something fall. At this time defendant Laucella came out of the store and walked over to the car window. He said they were making a movie of an actual robbery and that the witnesses were in it. Laucella said the camera was at the gas station nearby. Laucella then went back into the store. One of the other suspects exited the store and walked towards the back of the shopping center. The couple saw Laucella parking a reddish van with curtains.
At 7:15 p.m. police responded to a call from defendant Laucella's home to assist an ambulance crew with a mentally ill person. Laucella's girlfriend informed police that Laucella had just been released from Agnews State Hospital and that his father wanted him recommitted. Defendant was taken by ambulance to the Santa Clara Mental Health Center. Later, he was transferred to Agnews; he gave a false name, his brother's. At Agnews, nine .22 caliber bullets were found in his pocket.
At approximately 9:00 p.m., the police were again called to the defendant's home. At this time defendant's brother, Daniel, turned over a .22 caliber automatic with an expended cartridge in the chamber. Daniel told police he had taken the gun from his brother, who had admitted shooting someone because of "bad vibrations." Daniel also said his brother had borrowed a van, and that it was parked across the street. The van contained an amplifier and numerous drum sticks. Police learned from questioning family members that Laucella had been committed to Agnews on September 4, 1971, for drug abuse and had been released on September 10 at 2 p.m. After his release, defendant behaved normally and did not show signs of drug usage. The following day [the date of the offense], he left home at 12:30 p.m. and returned between 5:30 and 6:00 p.m, indicating that he had an engagement with his band.
Defendant Laucella was taken from Agnews to the police department where blood and urine samples were taken and he was questioned. He denied any knowledge of a shooting and denied knowing his codefendants. On September 12, Laucella's co-defendants, Valdez and Satter, turned themselves in. ... In his statement to the probation officer, Laucella said he and the others did not plan or discuss robbing the store, and he did not remember pulling the trigger... He admitted that he took the gun from Satter's car with Satter's permission about two months prior. He also admitted being an occasional user of LSD and marijuana, but said he had not taken any drugs that day. [Laucella further stated that] after he shot the victim, he did have [an LSD] flashback.
(Pet. Ex. B. at 3-8) (internal brackets, quotations and ellipses omitted).
Petitioner pleaded guilty to first degree murder and admitted the use of a firearm. (Id.) He was sentenced to an indeterminate life term in prison. After serving slightly more than five years, petitioner escaped from his place of incarceration, the Duel Vocational Institute in Tracy. (Id.) He was apprehended the following day. (Id.) Petitioner was eventually sentenced to an additional term of six months to five years for the escape offense, to be served concurrently to his life sentence. (Id.)
On August 29, 1979, at his initial parole consideration hearing, petitioner was given a parole date of October 8, 1985. (Pet. Ex. Q.) A few months later, on December 15, 1979, petitioner again escaped from his place of incarceration and his parole date was rescinded.*fn1
(Pet. Ex. B at 2) He remained at large for six years and five months. (Id.) During that time he formed a common-law marriage relationship with a woman and fathered a son. (Id.) Petitioner broke no laws and remained clean and sober while free. (Id.) He was apprehended on May 23, 1986, in Portland, Oregon, when he went to meet a friend who was under FBI surveillance. (Id.) Petitioner has been in continuous custody since his apprehension in 1986. (Id.) His minimum eligible parole date passed on August 6, 1978. (Id. at 9.)
On August 14, 2002, the Board conducted petitioner's thirteenth subsequent (fourteenth overall) parole suitability hearing and determined that petitioner was suitable for parole because he would not pose an unreasonable risk of danger to society or a threat to public safety if released.*fn2 (Pet. Ex. B. at 2) On January 10, 2003, former Governor Davis reversed the Board's decision, concluding that the gravity of the crime had not been sufficiently considered, and also that petitioner still needed to address his drug problem through "substance abuse counseling and psychiatric treatment." (Id.)
Petitioner sought habeas corpus relief in the Santa Clara County Superior Court. (Pet. Ex. B. at 2.) The superior court granted relief, finding that the governor's exercise of discretion, which was then a newly enacted power, breached petitioner's plea bargain in violation of the Due Process and Contract Clauses of the United States Constitution. (Id. at 3.) The superior court ordered petitioner's immediate release. (Id.) Respondent appealed the order, and the California Court of Appeal, Sixth District, granted a stay ...