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In re Loresch

March 25, 2010

IN RE KARL LORESCH ON HABEAS CORPUS.


(Super. Ct. No. CR12122) (San Luis Obispo County), Stephen B. Sefton, Temporary Judge*fn1.

The opinion of the court was delivered by: Yegan, Acting P.J.

CERTIFIED FOR PUBLICATION

In this petition for writ of habeas corpus, Karl Loresch seeks to vacate the Governor's order reversing the 2008 decision by the Board of Parole Hearings (the Board) to grant him parole. The petition is meritorious. The record is devoid of "some evidence" supporting the Governor's conclusion that petitioner is unsuitable for parole because he is currently dangerous. As we shall explain, the Governor's order rests solely on speculation that in the future petitioner could relapse and commit acts of violence. We do not doubt the Governor's sincerity, but his decision must be based on some evidence of current dangerousness, not speculation as to future dangerousness.

The Commitment Offense

In June 1982 petitioner pleaded guilty to the first degree murder of Judy Martino. He was sentenced to prison for 25 years to life. Petitioner committed the offense in April 1982, when he was 22 years old and a sergeant in the army.

Petitioner was friendly with Herman Rose, who was involved in " 'a vehicle theft ring.' " Petitioner told the Board that he was not involved in the ring, but he "knew what they were doing." In 2008 petitioner told a forensic psychologist, Dr. Steven Barron, that he " 'was involved with [Rose] and the group [Rose] was with.' "

Rose told petitioner that " 'they had "to get rid of" Martino' " because she knew about the crime ring and had " ' "loose lips." ' " Petitioner had a sexual relationship with Martino.

Petitioner drank a six-pack of beer and went to Martino's trailer, where he had sexual intercourse with her. While Martino was giving water to her cats, petitioner " 'walked up behind her and hit her with his fist on the back of the head.' " Petitioner " 'struggled with [Martino], took her behind the trailer, threw her on the ground, grabbed her around the neck, [and] choked her until she passed out.' " Petitioner then " 'tied Martino up with electrical cord..., rolled her up in a blanket, and threw her in the back of [a] truck.' " Petitioner drove the truck to a ditch filled with water. He unrolled the blanket and threw Martino into the ditch. Petitioner claimed that, when he threw Martino into the ditch, he believed that she was dead. But Martino was still alive and drowned in the ditch. Petitioner's Insight into the Commitment Offense

In 2008 petitioner told Dr. Barron that "the underlying cause" of his commission of the murder was his "perceived inadequacies." His feelings of worthlessness were exacerbated when his wife " 'left [him] for a male stripper.' " "He reported he coped with this by 'drinking a lot and using drugs.' " He was " 'definitely intoxicated' " when he murdered Martino.

Dr. Barron wrote: "In describing his thoughts just prior to the crime, [petitioner] stated, 'I was told to do it. I felt I was forced into it. I put myself into that situation. I remember not knowing what to do, should I do this? I think when I committed the crime it was more for acceptance. I wanted to show how I could be relied upon.' Further, [petitioner] said that by the time of the crime, 'I had compromised my morals so much the decision didn't mean anything at the time.' "

Petitioner told the Board that he had "just lost it" after his wife left him. He started using drugs and alcohol. He "got into cocaine and... tried LSD and all kinds of weird combinations." He also smoked marijuana. He sold "a little bit" of cocaine to "service guys."

Petitioner acknowledged to the Board that his "drug addiction and alcoholism is not an excuse" for his murder of Martino. But the drugs and alcohol contributed to his commission of the crime: "[I]f you take away the drugs, you take away the alcohol, you take away [Rose's] influence, I wouldn't have done it on my own. I would have never thought of anything like this."

Petitioner's Remorse

Petitioner declared to the Board: "I killed [Martino], and I am honestly ashamed of what I've done. And I wish I could apologize to her. I wish I could apologize to her family. I've ruined their lives, I've ruined my family's lives, [and] I've ruined my own life...."

In 2008 Dr. Barron wrote: "Regarding his current feelings about the crime, [petitioner] said, 'There is no way to describe it. I know I was wrong. I feel like an idiot. I should have been stronger, [and] stood up and said that shouldn't happen.'... He reported he has experienced remorse which he feels 'every day' and described it as 'a deep pain in my chest, sadness.' When asked who was to blame for the crime he stated, 'I am to blame.' "

Petitioner's 1982 probation report stated: "[Petitioner] shows a great deal of remorse in his actions. He did talk about having periods of guilt in which he could ...


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