The opinion of the court was delivered by: Thelton E. Henderson, District Judge.
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
Pro se Petitioner Miguel Amaro, a state prisoner incarcerated at the Correctional Training Facility ("CTF") in Soledad, California, seeks a writ of habeas corpus under 28 U.S.C. § 2254 challenging the California Board of Parole Hearings' ("BPH") March 20, 2007 en banc summary decision denying him parole. Doc. # 1; see Doc. # 4-2 at 72. Petitioner's parole suitability determination went en banc after a February 14, 2007 split decision, with one commissioner finding Petitioner unsuitable for parole and another finding him suitable. See Doc. # 1-1 at 39-48. This was the second time Petitioner received a split decision regarding his parole suitability; the first was in 2004. Doc. # 1.
On June 27, 1984, Petitioner was sentenced to fifteenyears-to-life in state prison following his convictions of second degree felony-murder arising from the death of Eric Collier and of kidnapping Collier's two friends. Doc. # 4-1 at 46-47. Petitioner's life term began on or around July 3, 1984; his minimum eligible parole date was December 15, 1992. Id. at 46. At the time of his 2007 parole denial, Petitioner had served twenty-three years in prison for his commitment offense, fifteen years past his minimum eligible parole date.*fn1
The state superior court determined that BPH's decision denying Petitioner parole was supported by "some evidence." Doc. # 4-5 at 2. The court explained that BPH's decision "was based ... primarily on the commitment offense and on the Petitioner's previous criminal history." Id. The state appellate court agreed that there was "some evidence" to support BPH's decision. Doc. # 4-7 at 2. The California Supreme Court summarily denied Petitioner's request for review, although Justice Moreno would have granted Petitioner's request. Doc. # 4-9 at 2. This federal Petition for a Writ of Habeas Corpus followed. Doc. # 1.
For the reasons set forth below, the Court finds that at the time of Petitioner's 2007 parole suitability hearing, there was no evidence to support BPH's decision that he currently would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The Petition will be granted.
At Petitioner's February 14, 2007 parole suitability hearing, BPH read two factual summaries of Petitioner's commitment offense. Doc. # 4-1 at 61-67. The first was submitted by a correctional counselor at Petitioner's 2003 hearing. Id. at 61. The second was Petitioner's version. Id. at 64. Each is set forth below.
On December 5, 1982 at approximately 9:35 p.m., victim Eric Collier along with Russell Walker and James Tokumoto were visiting with Daniel Almarez, Jeff Sagmeister and [Petitioner] in an apartment located at 14724 Chadron Avenue in Lennos. Tokumoto and Daniel Almarez were in the kitchen talking when the fight started. Daniel Almarez produced a gun [with] which he struck Tokumoto several times in the head. Sagmeister saw the gun in Daniel's hand and took it away. The fight resumed and Daniel Almarez called to Robert Almarez for help. Robert shot and killed James Tokumoto. Daniel told Sagmeister to close the drapes and clean up the blood. At gunpoint Daniel then taped the mouths and hands of the victims Russell Walker and [Eric] Collier and took their wallets. [Petitioner] assisted in taping up Collier. Daniel told [Petitioner] to get some rope. [Petitioner] left and returned with a white bag. Daniel gave [Petitioner] some keys and told him to get the car. The two victims Walker and Collier with their hands tied [were] taken to a (inaudible) by Daniel and Robert Almarez. [Petitioner] was the driver of the vehicle. [Petitioner] eventually stopped the car on Marine Avenue in Manhattan Beach. Robert Almarez, the victims Walker and Collier got out of the vehicle. Walker was able to free his hand and escaped. Daniel threw Collier back into the car and told Robert to go after Walker. While running from his captors, Walker could hear two gunshots. Walker was able to hide and then at one of the residences in the area call the police. The police arrived, observed Robert Almarez, recovered the gun and took Almarez into custody. Meanwhile, Daniel told [Petitioner] to go look for Robert and he drove down two streets. Daniel told [Petitioner] to drive out of the area and eventually had him stop the car. Daniel took Collier out to a grassy area. [Petitioner] told Daniel to let Collier go but after hesitating, Daniel said, "Fuck, no," grabbed Collier, shot him three times. [Petitioner] and Daniel Almarez drove the victim Collier from the area and early the following morning Collier's body was found in the 1900 block of El Segundo Boulevard. Collier had been shot in the head. [Petitioner] and Daniel Almarez then returned to the apartment and carried Tokumoto's body into the station wagon and dumped it at an area near Gardenia.
[Petitioner] stated that he had moved in with Daniel Almarez for only a few days before the homicide as he was looking for a place to stay and had been visiting with a girlfriend throughout most of the day of the homicide. Danny asked him to sample some cocaine which he intended to purchase (inaudible), and he sold the drug but didn't use it ( [Petitioner] returned to the residence and verified that the drug was good). [Petitioner] remained at Almarez'[s] residence drinking beer and eating pizza with Danny and his friends when he received a phone call from James Tokumoto. Tokumoto was invited to join the group and did so along with the other victims Russell Walker and Collier. Almarez learned from Tokumoto that Tokumoto was responsible for Almarez'[s] girlfriend moving out and a shouting match ensued that developed into a fight. The incident proceeded as described in the offense summary and [Petitioner] indicated that at no time was he a willing participant in the subsequent kidnappings and shootings. [Petitioner] stated that he was threatened by gunpoint by Daniel Almarez if he did not cooperate. [Petitioner] indicated that he unsuccessfully attempted to convince Almarez to release Walker and Collier during the course of the kidnapping. He was outside the immediate presence of Almarez only once throughout the incident and was quite fearful that he himself might be killed since he was aware that Almarez was heavily involved in gang activity and could be extremely violent. The one time [Petitioner] was away from the immediate presence of Almarez was when he was ordered to go outside and get the car. [Petitioner] stated that in hindsight he realizes he would have been able to flee. At this point the fear for his own life kept him from leaving. After dropping off Tokumoto's body, he was returning with Almarez to the residence when he was stopped by a peace officer at a road block which was set up. He was taken into custody as a result of having a six pack of beer open on the front seat. Almarez who was asleep in the back seat was allowed to remain in the vehicle. [Petitioner] was afraid to discuss the matter with anyone and since he had not been identified at that point[.] [H]e was released on his own recognizance the following day. He stayed with his girlfriend for several days during which he was drinking and using drugs heavily. He assumed that eventually he would be arrested in the matter and when this did occur he continued to maintain his silence.
Following the evidentiary portion of the February 14, 2007 hearing, BPH rendered a decision regarding Petitioner's parole suitability, telling Petitioner:
there is a split of opinion in regard to your suitability for parole. I will read my factors and findings ... having reviewed all the information from the public and rel[ying] upon the circumstances of your life crime as well as your progress and programming in state prison [I] find that you are not suitable for parole and would pose an unreasonable risk of danger to society of a threat to public safety if released from prison on the grounds that this offense was carried out in an especially cruel and callous manner in that one victim, Tokumoto was invited over by Daniel Almarez to the residence. Mr. Tokumoto brought over two friends at the house. The justification for the killing ... indicates it was a drug transaction gone bad. There is other information that Mr. Tokumoto had some contact with Mr. Alvarez'[s] girlfriend that caused Mr. Alvarez to have ill feeling. But considering two people were killed that night the motive for the crime was inexplicable and very trivial in relationship to the loss of two lives. The way that the crimes were carried out shows a dispassionate, calculated manner in that it was almost execution style. Mr. Tokumoto was shot in the kitchen. The two other people Walker and Collier was [sic] found. Their wallets were taken from them at the house. They were taken in a car driven by you. The two Almarez brothers had handguns at the time. They drove to one location near Manhattan Beach where Mr. Walker was able to escape. Mr. Collier was put back in the car and shot three times in the head. His body was dumped. You were the driver of the car at the time. After that incident you went back over to the Almarez residence and assisted Daniel in taking Tokumoto's body and dumping him in Gardenia in a grassy area. The crimes indicate there were multiple victims ... attack[ed] and for these reasons including the fact that you have an escalating pattern of criminal conduct starting off with the incident in 1971 where you were involved in hitting a peace officer with a brick after a (inaudible). I find that in each instance your explanation was to blame other people or blame circumstances that were totally out of your control and yet you involved yourself voluntarily with assaultive behavior and it is more than other people's fault for the ingestion of alcohol or drugs that triggers this type of violent conduct. In addition, I find that you have not sufficiently participated in beneficial self-help. I praise you for participating in Alcohol[ics] Anonymous. I praise you for the therapy that you have obtained. However, it's clear that [the] manner in which the crime was committed in regard to having these three people two of which [sic] were killed taken [to] over three different locations in the Los Angeles area clearly involved an extended period in which you had hostile feelings regarding your participation or uncontrollable feelings regarding your participation in those crimes. And you need a little more therapy, a little more insight in regard to why you have this rage and how you have an easy answer that simply taking alcohol or drugs can cause you to have ... what I [call] an itchy trigger finger regarding your response and rage towards others. The district attorney of Los Angeles County ... indicates his opposition [to your release] ... as [does] the Los Angeles County Sheriff's Department. Further in regard to other factors ... you ingest mind altering substances and your risk for violence is very high. Simply telling the Board that you will refrain from alcohol does not address the underlying issues that appear to be your problem, and it is a finding that you could benefit from further therapy before being released back into society. For all of these reasons, I find you not suitable for parole at this time.
The second commissioner, who heard and reviewed the same evidence at the February 14, 2007, hearing found that Petitioner was, in fact, suitable for parole, stating:
I have reviewed all of the information received from the public and relied on the following circumstances in concluding that [Petitioner] is suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison. [Petitioner] has no juvenile record of assaulting others, has a stable social history as exhibited by reasonably stable relationships with others. In particular, ... you've mentioned that you keep in contact with your brothers Joseph and Robert seeing them every other year, your sister Maria, seeing her twice a month and your sister Theresa, seeing her once a year. In addition you mentioned that you keep in contact with your niece, your nephew, your daughter, your wife and your mother. While in prison, [you have] enhanced [your] ability to function within the law upon release through participation in educational programs[,] specifically you have received your GED back in ... 1988 and you were close to getting your AA degree. Additionally you have provided many [l]audatory chronos indicating your participation in [Alcoholics Anonymous], [Narcotics Anonymous] and anger management. In addition to that, you've indicated that you did receive a certificate in welding, you do have your forklift license, and I'm incorporating by reference previous transcripts from previous hearings wherein it was indicated that you have vocational training in commercial laundry and dry cleaning. Prior to the life crime, [you] lacked a significant criminal history of violent crimes. Because of maturation, growth, great understanding and/or advanced age, [you have] reduced [the] probability of recidivism. And I refer to the psychological report of 2006 by Dr. Marek wherein he indicates that you have been free of [serious rules violations] for many years and your behavior has improved and your judgment has become clear and you have matured. If released to the community [your] violence potential is considered to be about the same as the average citizen in the community. All things considered [your] pre-incarceration record is not that severe. With the gains [you have] made here, [you] should be able to generalize those gains to the community. Then I'll go on to the report from Dr. Tout (phonetic) on June 6, 2000 wherein he indicated that should [you] at this time be given a parole or release date, [your] prognosis for maintaining [your] present gains in the community is excellent as long as [you] continue[ ] to abstain from substance use. And then finally, I will read into the record a 2000 report from Dr. Koch wherein he indicates that if released to the community [your] violence potential is estimated to be no higher than the average citizen in the community. I have also found that the prisoner has realistic parole plans which include a job offer and/or family support. [Petitioner] indicated that he would have a job at Gold's Gym and has other job opportunities lined up, has maintained close family ties while in prison via letters and/or visits and [Petitioner] has provided various letters from various family members indicating his close family ties, has maintained positive institutional behavior which indicates significant improvement in self control, shows signs of remorse. [Petitioner] has indicated that he understands the nature and magnitude of the offense and accepts responsibility for the criminal behavior and has a desire to change towards good citizenship. In reading the psychological report from Dr. Marek as well as the Board report from [correctional counselor] Arnold, it was indicated that you did express remorse for the crime.
On March 27, 2007, approximately six weeks after the February 14, 2007 split decision, BPH had an executive meeting. Doc. # 4-2 at 72. At that meeting, BPH, sitting en banc, by unanimous vote but without receiving any additional evidence, found Petitioner unsuitable for parole. Id. Petitioner's parole was deferred for one year. Id.
Petitioner challenged BPH's en banc decision denying him parole by filing a petition for a writ of habeas corpus in state superior court, which the court denied on October 2, 2007. Doc. # 4-3 at 2-3. The court determined BPH's decision denying Petitioner parole was supported by "some evidence," and explained as follows:
[BPH's] decision was based ... primarily on the commitment offense and on ... Petitioner's previous criminal history.
The Court finds that there is some evidence to support the Board's finding that the commitment offense was carried out in a dispassionate and calculated manner. Cal.Code Regs., tit. 15, § 2402, subd. (c)(1)(B). The kidnapping and subsequent murder of Mr. Collier was essentially an execution of the victim because he had been present when the killing of Mr. Takumoto occurred. The Petitioner participated in nearly every facet of the crime except for the killing itself. He had numerous opportunities to flee and call the police and did not do so. Furthermore, the motive for the crime was very trivial in relation to the offense. Cal.Code Regs., tit. 15, § 2402, subd. (c)(1)(E). The committing offenses were precipitated by an argument and the Petitioner was not even directly involved in the dispute.
The Court also finds there is some evidence to support the Board's finding that the Petitioner was previously convicted of assault for hitting a police officer in the face with a brick. Cal.Code Regs., tit. 15, § 2402, subd. (c)(2).
In addition [BPH] noted that the District Attorney's Office had opposed the Petitioner's release. While this is also not a factor on which the Board may rely to deny parole, such opposition ...