San Mateo County Superior Court Hon. H. James Ellis.
The opinion of the court was delivered by: Lambden, J.
CERTIFIED FOR PUBLICATION
Petitioner Ernesto Rangel Juarez petitions this court for a writ of habeas corpus releasing him from prison after the Board of Parole Hearings (Board) denied him parole and the San Mateo County Superior Court denied a previous writ petition. There is no evidence in the record to support the Board's denial, or that Juarez continues to pose an unreasonable risk of danger to society. Therefore, in accordance with In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence), we grant his petition.
Juarez, presently 50 years old, was convicted in 1982 of the second degree murder of Bruce Farley, who was killed in a vehicle collision Juarez caused when, impaired by PCP and other substances, he lost control of his car as he raced away from police. Juarez was a repeat substance abuser who had been in previous collisions, and had been warned of the e in 2004, only to be reversed by the Governor. As of his July 2008 Board hearing, Juarez had for some time fully accepted responsibility for the commitment offense and for knowingly driving while high on PCP, not disputed any of the facts of his crime, and expressed remorse for killing Farley. He had been a model prisoner for years, was an ongoing participant in Alcoholics Anonymous (AA) and a past participant in Narcotics Anonymous (NA), acknowledged that he was an alcoholic and a drug addict, and pledged to continue his participation in AA after his release with the help of his family and an arranged sponsor. He had been a highly respected worker in the prison's optical lab for at least a decade, become a licensed optician, and successfully taught other prisoners seeking to become licensed themselves. He had a supportive family and realistic parole plans, and multiple job offers as well. His 2004, 2007, and 2008 psychological evaluations each concluded that he posed a low risk for violence if released and was suitable for parole.
Nonetheless, the Board denied Juarez parole in July 2008, based on three reasons. The Board relied significantly on its "questions" regarding Juarez's "credibility" because of his claims that he blacked out while driving at the time of the commitment offense, and could not recall his criminal acts in a 1981 incident while drunk. The Board's reliance on these questions makes no sense in view of its simultaneous rejection of Juarez's attorney's requests that it further investigate Juarez's blackout claims, finding that these claims were not dispositive of anything and that their merits could not be determined. The Board also relied on what it considered to be the heinous nature of his commitment offense and, finally, on his violent criminal history, based on a rote recitation of unsuitability factors that were neither supported by evidence in the record nor probative of Juarez's present dangerousness.
The Board abused its discretion and denied Juarez his due process rights by its reliance on these three reasons. We conclude, as did Justice Scotland, writing for the majority in In re Palermo (2009) 171 Cal.App.4th 1096 (Palermo) under similar circumstances, that, "in light of the nature of defendant's crime, the period of time that has elapsed since the crime, the affirmative evidence of his preconviction and post-conviction conduct and his current mental state shown by his rehabilitative efforts and psychological evaluations, and his future prospects if granted parole, there is no evidence to support the Board's finding that he poses a danger to public safety if released on parole." (Id. at p. 1112.)
Juarez's Second Degree Murder Conviction
We summarize the facts of Juarez's commitment offense and the relevant trial testimony from an undated probation department report prepared around the time of his sentencing in 1982. On the afternoon of March 6, 1982, Juarez, then 22 years old, and three male friends were parked outside a fast food restaurant in South San Francisco, California talking to a group of girls, who then went around the corner. Moments later, one of the girls saw Juarez drive his car onto a street that approached El Camino Real, strike a car at the intersection, continue down the street and strike another car, then turn left and flee at a high rate of speed down El Camino Real. A South San Francisco police officer in a patrol car soon pursued Juarez as Juarez sped down the street in excess of 65 miles per hour. When the officer turned on his lights and siren, Juarez "punched" his accelerator and increased his speed greatly. Unable to negotiate a curve in the road, Juarez went across the double yellow lines into the oncoming lanes, where he struck a vehicle, killing Bruce Farley instantly. Juarez's vehicle careened off of Farley's and came to rest 300 feet away.
The officer found four people in Juarez's car, including Juarez, conscious and complaining of minor injuries. Juarez was taken to the hospital. The paramedics and the emergency room doctor testified at trial that he was alert and oriented, but suspected that Juarez had either hit his head or was under the influence of some kind of drug. A blood sample taken from Juarez was found to have a level of 30 nanograms of PCP.
Juarez testified at his trial that he began using PCP in January 1978. He said that he obtained the PCP from " `friends in the park,' " that it was always in a marijuana "joint," and that he could not tell the difference between PCP and marijuana. However, he admitted buying PCP at a price of $20 per joint, rather than the $5 he paid for five or six marijuana joints. He claimed to have knowingly used PCP eight to nine times and that his probation officer had only told him about two positive urine tests.
Juarez also testified that he left his house on March 6, 1982, to have his car washed, and ran into a high school friend who was accompanied by two others. The four rode to a South San Francisco fast food restaurant. His three companions were drinking beer and smoking joints, but Juarez did not have any. He said that he finally succumbed and took "one or two hits" from a joint, "then blacked out and remember[ed] nothing else until being pinned in his car after the accident that killed Bruce Farley." He acknowledged that his driver's license was suspended at the time of the crash, and that he had told a similar " `blackout' " story concerning his involvement in a previous accident.
At Juarez's trial, both sides presented expert witnesses to testify about the circumstances of the crash. The speed limit in the area was 35 miles per hour. The defense expert estimated that Juarez's car was traveling at a speed of 62 to 68 miles per hour, while the People's expert testified that Juarez was traveling at a speed between 68 to 76 miles per hour.
Both sides also presented expert witnesses to testify about the role of Juarez's PCP use in the incident. The People's expert testified that at a level of 30 nanograms of PCP, a person would definitely be under the influence of the drug and impaired in the functions normally associated with driving an automobile. However, PCP does not cause a person to lose control, "and a person is able to act rationally and within the bounds that the law imposes on a person even though he is intoxicated on PCP." The expert also testified that Juarez's story that he did not know that he was using PCP was unlikely.
The defense expert testified that PCP is a drug with unpredictable qualities, that it commonly causes amnesia, and that people "sometimes go from conscious to unconscious on very low levels." He also said that PCP interferes with the abstract thinking process carried on in the brain.
The People also called Juarez's probation officer, who testified that Juarez was subject to chemical testing from January 1980 through February 1981, had tested positive for PCP four times, and had been told about the hazards of driving under the influence, of PCP.
The 1982 probation department report includes the following statement from Juarez (presented here with the spelling and grammatical errors contained in the record) to the probation department:
"Well I left my house on Saturday March 6, 982 to go wash my car I went to [C]olma and wash my car their on the way home. I seen a friend near my house so I stop to talk to him for a while and he was walking to the store so I give him a ride up the street when we seen a friend of mine I haven't see since Junior high so we talked for awhile and Jessie and his friend got in the car and we went for a ride to grand auto in S.S.F. oh they were drinking beer but I wasn't. and we were parked in front of fish and chips I went to the store to price a few things and came back and we were just sitting there and someone lite some marijuana and they past it around Im not sure how had it. just that they were passing it around and they offered me some at first and I didn't want any and then I finially took a few hits of the marijuana and after about three hits I dont remember what happen to me. just from what I was told what had happen to me and I couldnt believed it cause I couldnt remember anything. But like walking up and seeing the front window smashed and seeing the mountain on my left and I couldnt move. and then going somewhere in a ambulance. thats all I can remember what happen to me. and I didnt do this on purpose."
Juarez also stated in his 1982 probation department interview that, while he knowingly took a marijuana cigarette from his companions on the day of the incident, he did not know that it contained PCP. He immediately went into a blackout and did not remember what happened until he woke up after the collision.
The jury found Juarez guilty of second degree murder, as well as negligent vehicular manslaughter, felony drunk driving, and two counts of misdemeanor hit and run. The court sentenced Juarez to 15 years to life for the second degree murder conviction, and stayed the remainder of the sentences.
According to the 1982 probation report, Juarez was born in San Francisco in 1959, had lived most of his life with his family, and was residing in Daly City at the time of the commitment offense. His father died in 1978 from cancer. Juarez was a poor student who had dropped out before graduating from high school. He said his occupation was warehouseman and that he was a union member, had held some jobs and received a good work review, but could not find steady employment.
Juarez reported that he used marijuana and on occasions had used PCP. He denied using heroine or cocaine. His probation was revoked in March 1981 because he tested positive for use of PCP.
The 1982 probation department report indicated that Juarez had no juvenile record, but had been convicted of numerous misdemeanors as an adult. In October 1977, he was convicted for drunk driving and resisting arrest. In December 1977, he was convicted of assault and battery for slapping the face of a woman, apparently his girlfriend at the time, and punching her in the stomach. In October 1978, he was convicted of hit and run, after he was observed driving at a high speed, losing control of his car, hitting a no parking sign, and leaving the scene. In 1979, he was convicted of public drunkenness and resisting arrest, and was found to be wearing a holster that matched a revolver found in the trunk of a stolen vehicle. In December 1979, he was convicted of felony auto theft that was reduced to misdemeanor joyriding.
Juarez's most serious prior misdemeanor conviction was in 1981, for reckless driving. A 1981 probation department report from that case stated that, according to one of his friends, Juarez " `flipped out' " and started doing "crazy things such as rolling down the windows and driving erratically." The friend got out of the car and Juarez fired three gunshots at him, but missed. Juarez drove away and collided with a car while traveling at a speed of about 90 miles per hour, causing the car to crash into a center divider, but Juarez did not stop or slow down. He hit a second car traveling at an estimated 80 to 100 miles an hour, and continued on, hitting a third and then a fourth car, leading to significant injuries to the two people in the fourth car. Juarez lost control of his car, crashed, and fled on foot. A pistol was found in his car. According to the probation department report, he did not express any remorse for his actions, claimed to have suffered a " `blackout,' " would not discuss the actual incident, said he had no history of blackouts, did not want medical help for his " `condition,' " and said that he did not use any dangerous or illegal drugs and used alcohol on weekends only.
Juarez's Post-conviction History in Prison
As of the July 29, 2008 Board hearing, Juarez had been incarcerated for approximately 26 years. In 2004, the parole board granted Juarez parole, but Governor Schwarzenegger reversed that decision.
According to a 2008 life evaluation report, Juarez has not been subject to any disciplinary actions since 1993. He was subject to eight disciplinary actions between 1983 and 1993, five being rules violation reports and three being custody counseling chronos. These were for refusing to work (1983), tattoo paraphernalia (1983), being absent from class (in 1984 and 1985), delaying the close custody count (1985), inciting to assault staff (1986), destruction of state property (1987), and drug paraphernalia (1993).
The 2008 life evaluation report also indicates that Juarez participated in a number of therapy and self-help activities. He was continuing his participation in AA, and had participated in NA in the past. He completed the "Breaking Barriers" program in 1991, a five-week course in relationships in 2005, workshops in men's violence prevention in 1996, anger management in 2003, stress management in 2004, and participated in a prisoner's outreach program in 2005. He completed an anger management program in 2005, was given a certificate of appreciation by the Boy Scouts of America in 2007, a certificate of excellence for participation in the prison outreach program in 2006, and a certificate of appreciation for his facilitation of "Tawheed, Changing Faces," in 2006. The report states that his "overall pattern of behavior is very good." The record contains chronos indicating continual participation in AA from the last quarter of 2003 through the first quarter of 2008, and continual participation from July 1998 through 1999, and from January through March 1998; chronos also indicate participation in NA for six months in 2006, three months in 2005, and from July 1998 through March 1999.
Juarez's most significant work achievements have been in optical training, including his designation as a certified optician by the American Board of Opticianry in 2004. At the time of the 2008 hearing, he was continuing his assignment to the lens lab in the prison, where he had worked for 10 years, and had "very good" relationships with staff. His work and teaching skills were noteworthy. A vocational instructor at the optical lab who had worked with Juarez since 1998 wrote:
"His skill, workmanship and teaching ability would be extremely valuable to potential employers. The November 2008 American Board of Optician exam resulted in 24 of 25 inmates passing to become certified opticians. This is a (96%) success rate. Juarez provided lessons to help these inmates achieve this nationally recognized professional certification. He has been dedicated to education and helping other inmates with the educational goals as long as I have known him. Juarez has passed the American Board of Opticianry Contact Lens and Spectacle Lens exams. Juarez is very suitable for employment as an Optical Technician, Dispensing Optician or teaching Optics."
The record also contains numerous certificates indicating Juarez's participation in various work and study programs, including vocational training for small engine repair, food protection, customer service, and welding.
2008 Psychiatric Evaluation
In 2004 and 2007, Dr. John T. Rouse, a forensic psychologist, conducted psychological evaluations of Juarez and concluded that he was a low risk for violence if released and was suitable for parole.
Juarez's most recent evaluation was conducted on June 30, 2008 by Dr. Sara Bowerman, a forensic psychologist. Bowerman reported that Juarez "exhibited fairly good insight into the factors involved in his instant offense. When asked what had contributed to his behavior, Juarez responded: `Stupidness, not taking responsibility, I was just a stupid kid. I didn't think I was going to kill someone.' He acknowledged the impact of his drug use, irresponsibility of driving while under the influence, and an overall level of irresponsibility and immaturity. [¶] Juarez expressed feelings of guilt and remorse for his crime and when asked how he feels about what happened to his victim, he responded: `I'm very sorry that I took his life, he was still a young man at the age of 31, never got to marry or have kids. I robbed his mother of grandchildren.' He acknowledged that he was `out of control.' Juarez accepted his sentence of 15 years for second degree murder. He acknowledged and accepted responsibility for his actions in the instant offense. When asked who's to blame for your crime, he responded: `I am. I'm to blame for everything I've done.' "
Bowerman's diagnostic impressions included that Juarez "openly acknowledges a persistent use/abuse of alcohol and drugs (marijuana and PCP)." She found no symptoms of any thought or mood disorders, indicated that he "has reportedly gotten along well with peers and staff and has achieved a high level of functioning and impulse control since his incarceration," and stated that he appeared to "evidence remorse and sadness regarding his crime resulting in the death of the victim."
Bowerman reported that, applying the "Hare Psychopathy Checklist- Revised," which gives a measure of psychopathy, a moderate predictor of future violence, Juarez "produced a score that placed him in the very low range of psychopathy when compared to other North American male offenders in the normative sample," scoring better than 96 percent of those offenders, based on his lifetime history. Similarly, his results pursuant to another assessment evaluation, HCR-20, indicated "minimal concerns for future risk of dangerous behavior."
Juarez told Bowerman that he had begun drinking alcohol at age 14 or 15 on weekends, had begun smoking marijuana on a daily basis in high school, and "had previously smoked PCP on only a few occasions prior to the instant offense although the reports regarding this are inconsistent throughout his record. Juarez acknowledged that he was under the influence of alcohol, marijuana, and PCP at the time of his crime and this played a significant role in his judgment, decision making, and emotional/mental status at the time of the offense. A potential future risk . . . would be substance abuse relapse which would pose a risk for future ...