The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the Report and Recommendation (Doc. # 19) of Magistrate Judge William McCurine, Jr., filed on February 16, 2010, recommending that this Court deny Petitioner Jose Ramirez-Salgado's First Amended Petition for Writ of Habeas Corpus (Doc. # 4).
On November 1, 1979, Petitioner pleaded guilty in San Diego County Superior Court to second degree murder, robbery and assault with a deadly weapon. (Lodgment # 3 at 1). Petitioner was sentenced to a term of twenty years to life. (Pet., Doc. # 4 at 1).
On November 1, 2005, the California Board of Parole Hearings ("Board") held a parole hearing for Petitioner. (Lodgment # 2). After hearing from Petitioner, Petitioner's attorney and Deputy District Attorney A. Rodriguez, and reviewing the documents related to Petitioner's case, the Board denied him parole. (Id. at 25-30).
Petitioner filed a petition for writ of habeas corpus challenging the Board's denial in the San Diego Superior Court, which issued a written, unpublished opinion denying the petition. (Lodgment # 2, 3).
Petitioner appealed to the California Court of Appeals, which also denied the petition in a written, unpublished decision. (Lodgment # 4, 5). The California Court of Appeals wrote:
Jose Ramirez-Salgado is serving a prison sentence of 20 years to life after pleading guilty in 1979 to second degree murder, robbery and assault with a deadly weapon, and admitting he was personally armed with a firearm when he committed the offenses. On November 1, 2005, the Board of Parole Hearings ... held a hearing and declined to set a parole date, finding Ramirez-Salgado would pose an unreasonable risk to society or public safety if released. The Board based its decision on the cruel and callous nature of the offense, finding multiple victims were attacked or killed and the motive for the crime was inexplicable or trivial compared to the offense. The Board further found Ramirez-Salgado has a record of violence, and escalating pattern of criminal conduct and a history of unstable relationships with others. He has limited prison programming, failed to develop a marketable skill to use when released, failed to upgrade his vocational skills and has not sufficiently participated in beneficial self-help or therapy programs. Further, Ramirez-Salgado failed to show positive changes in that he received 30 disciplinary reports while incarcerated, including two since his last parole hearing.
Ramirez-Salgado claims: (1) the Board relied on facts of the crime which were not admitted by him in his plea agreement, not found by the court at the change of plea hearing and not relied on by the prosecution in offering the plea bargain; (2) he received ineffective assistance of counsel before, during and after the suitability hearing because counsel advised him to waive his right to be present at that hearing; (3) the Board's findings he was unsuitable for parole were contrary to the facts, unreasonable and violated his due process rights; and (4) the Board violated his due process rights by punishing him for exercising his legal right to personally appear at ths parole suitability hearing and predetermining the outcome of that hearing.
The facts of the crime as stated in the Board's 2002 report are: Ramirez-Salgado robbed two men at gunpoint, taking cigarettes and $6. He told them to run, and as they did so, Ramirez-Salgado fired several shots at them. A bullet hit one of them in the neck. Ramirez-Salgado ran down an alley, firing several more shots. He approached a car occupied by a man and his son, fired several shots, but missed them. When another man came out of his house to investigate, Ramirez-Salgado shot him three times in the chest, fatally wounding him. Ramirez-Salgado approached a sixth victim and, at gunpoint, demanded his wallet. The victim said he had no wallet. Finding no wallet, Ramirez-Salgado told the victim to run and as the victim did so, Ramirez-Salgado fired several shots.
Where, as here, a prisoner refuses to discuss the facts of the crime, the Board's decision must be made on other available information. (15 Cal. Code Reg., tit. 15, § 2236.) Ramirez-Salgado cites no authority for the proposition that the Board may consider only facts admitted in the plea agreement, found by the court at the change of plea hearing or ruled on by the prosecution in offering the plea bargain. The Board acted properly in considering the facts of the commitment offense as presented in the Board's 2002 report.
Ramirez-Salgado claims he received ineffective assistance of counsel because his attorney tried to prevent him from appearing at the parole hearing. However, Ramirez-Salgado personally appeared at the parole hearing and thus, any alleged deficiency by counsel did not prejudice him. (Strickland v. Washington, (1984) 466 U.S. 668, 688; People v. Waddle (2000) 22 Cal. 4th 690, 718.)
Ramirez-Salgado contends the Board's unsuitability finding was contrary to the facts, unreasonable and violated his due process rights. However, the record shows that in finding Ramirez-Salgado was unsuitable for parole, the Board considered proper facts in an individualized manner. There is some evidence to support the Board's decision. (In re Dannenberg (1995) 34 Cal. 4th 1061, 1084.) Further, Ramirez-Salgado has not provided a sufficient basis on which to show the Board punished him for exercising his legal right to ...