The opinion of the court was delivered by: Rosalyn M. Chapman, United States Magistrate Judge.
REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Dean D. Pregerson, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On January 17, 1984, in Los Angeles County Superior Court case no. A371885, pursuant to a plea bargain, petitioner Arthur Martinez pleaded guilty to, and was convicted of, one count of second degree murder in violation of California Penal Code ("P.C.") § 187 (count 6), and petitioner was sentenced to 15 years to life in state prison. Lodgment nos. 1, 11.*fn1
On June 24, 2004, petitioner had a parole suitability hearing before a panel of the California Board of Prison Terms ("Board"),*fn2 at which time the Board found him "suitable for parole" on certain terms and conditions, effective October 22, 2004 .*fn3 Lodgment no. 3. These terms included precluding petitioner from using or possessing alcoholic beverages and requiring petitioner to submit to alcohol and drug testing, participate in a substance abuse program, report to an outpatient clinic for evaluation, and not actively participate in, promote or assist any prison gang, disruptive group or criminal street gang activity or violate any gang abatement order or injunction. Id. In finding petitioner suitable for parole, the Board calculated petitioner's base term as 216 months imprisonment, reduced to 144 months due to post-conviction sentencing credits. Id. On November 9, 2004, Governor Arnold Schwarzenegger reversed the Board's grant of parole,*fn4 stating:
At the time of the murder, [petitioner] was 18 years old and on probation due to an earlier adjudication as a juvenile for grand-theft person. He told the Board at his 2004 parole hearing that the offense occurred when he and some friends attacked a man walking on a street and demanded money from him. [Petitioner] also said at his hearing that he was first arrested at age 7, for throwing rocks at a car, and thereafter for possession of a deadly weapon with the intent to commit an assault and unlawfully taking a vehicle.
He described to the Board at the same hearing that he was at the time of the murders part of "a club with a gang-like mentality." [¶] Since entering prison, [petitioner] has been disciplined three times for serious-rules violations-including once for a stabbing assault on another inmate and once for possession of an inmate-manufactured weapon-and counseled twice for minor misconduct. He also was associated with a gang while in prison, as he told the Board at his 2004 hearing. [¶] But [petitioner] seemed to turn a corner during the mid-1980s. Based on the record before me, he has been gang-free since his debriefing in the mid-1980s and has remained discipline-free since 1986. Likewise, he has worked while in prison to enhance his ability to function within the law upon release. He obtained his GED, has taken FEMA classes, and has received vocational training in upholstery, office services, and dry cleaning. He has held several skilled institutional jobs such as his current position as the recreation coordinator for mentally-ill inmates. He has participated in an array of self-help and therapy, including various substance-abuse programs since 1989, Personal Growth Seminars, Criminal and Gang Members Anonymous, Process Group, Lifer Prisoner's Support Group, Alternatives to Violence, Stress Intervention Peer Program, Anger Management, Criminon, and IMPACT. He has been involved in the hospice-care program and has volunteered as an HIV Peer Educator and a literacy tutor. He has maintained relationships while in prison, been commended by various prison staff, and has received positive Life Prisoner and mental-health evaluations. He also has made realistic parole plans for himself that include confirmed offers of housing and employment. These are all factors supportive of [petitioner's] release from prison to parole. [¶] Nevertheless, [petitioner's] conduct went beyond the minimum necessary to sustain a single second-degree murder conviction because he participated in an armed robbery during which two men were shot and killed. As described by [petitioner] at the 2004 parole hearing, he and his partners felt "disrespected" because they were asked to get off of Mr. Umana's car. As a result, they went home to retrieve weapons, returned, and demanded money from Mr. Umana, Mr. Leon, and two other men who were present. According to a preliminary investigation report by the Los Angeles Police Department, one of the crime partners said, "If you want to live[,] give us your money." [Petitioner] fired the shotgun into the air, and a crime partner shot Mr. Umana and Mr. Leon in their heads, killing both men. In addition to the motive for the murders being exceedingly trivial, [petitioner's] conduct after the murders demonstrated an exceptional callousness and a complete lack of remorse and conscience. According to [petitioner], he went home to sleep after the slayings of Mr. Umana and Mr. Leon. And later, he met up with his crime partners and continued the crime spree, ultimately demanding beer from and then beating Mr. Rivas. The magnitude alone of [petitioner's] murderous conduct is a sufficient basis for me to conclude that his release from prison at this time would pose an unreasonable public-safety risk. The Los Angeles County District Attorney's Office apparently agrees. A representative from that office opposed [petitioner's] parole at the 2004 hearing based on, among other factors, the gravity of the crime he committed. [¶] [Petitioner] says he is now remorseful and accepts responsibility for the murders of Mr. Umana and Mr. Leon. Yet at his 2004 hearing, he told the Board that he "wasn't present" when his partners demanded money because he followed behind them approximately 20 to 25 feet. A Commissioner at the 2004 hearing said, "I find it difficult to believe that at the crime scene you didn't know it was a robbery...." I agree. [¶] After carefully considering the very same factors that the Board must consider, I believe [petitioner] would pose an unreasonable risk of danger to society if released from prison at this time. Accordingly, I REVERSE the Board of Prison Terms' June 2004 decision to grant parole to [petitioner].
On August 25, 2005, petitioner filed a habeas corpus application in the Los Angeles County Superior Court, Lodgment no. 5, which denied the petition on September 9, 2005, stating:
[T]he Court concludes that the record contains "some evidence" to support the Governor's finding that petitioner is unsuitable for parole. ( In re Rosenkrantz (2002) 29 Cal.4th 616, 667, 128 Cal.Rptr.2d 104, 59 P.3d 174; see Cal.Code regs., tit. 15, § 2402.)[¶] The Governor concluded petitioner is unsuitable for parole because the circumstances of the commitment offense were beyond the minimum necessary to sustain a conviction for second-degree murder, the motive was "exceedingly trivial," and petitioner's conduct after the murders "demonstrated an exceptional callousness and a complete lack of remorse or conscience." [¶] Petitioner is serving fifteen years to life for murder in the second-degree. The record reflects that just after midnight on September 19, 1981, petitioner, who was a gang member, along with fellow gang members Perez and Marmol, became involved in a conflict with three men over a car owned by one of the men. Petitioner and his crime partners left but then returned. When they returned, Perez had a sawed-off rifle and petitioner had a shotgun. Perez and Marmol demanded money from one of the men and he handed over one dollar. Perez and petitioner then began shooting. Two of the men were struck and killed by rifle fire. Petitioner, Perez, and Marmol then fled the scene. Petitioner told the Board the three of them had felt "disrespected." Later on the night of September 19, petitioner, Perez, and Marmol, approached another victim, Ruben Rivas, and demanded beer. The three then took beer from Rivas and a fight ensued. Petitioner beat Rivas with his fists and a beer bottle before the three left the scene. Perez returned some time late with a rifle and shot Rivas twice in the back of each leg. Rivas survived all his injuries. [¶] The Governor may rely on the commitment offense alone to deny parole if the circumstances of it are more than the minimum necessary to sustain a conviction for second-degree murder. (Rosenkrantz, supra, 29 Cal.4th 616, 683, 128 Cal.Rptr.2d 104, 59 P.3d 174.) Petitioner participated in the premeditated murder of two victims. He could well have been convicted of first-degree murder. As such, the Governor can deny petitioner parole based on the commitment offense alone. Moreover, an inmate may be unsuitable for parole if the motive for the offense was "very trivial." (Cal.Code Regs., tit. 15, § 2402(c)(1)(E).) While the Governor described the life offense as an "armed robbery," by petitioner's own admission the murders were precipitated by the attackers' feeling that they had been "disrespected" by the victims. Thus, there is "some evidence" the motive was "very trivial." [¶] The Governor may also consider petitioner's "behavior before, during and after the crime" in assessing suitability for parole. (Cal.Code Regs., tit. 15, § 2402(b).) Here petitioner and his crime partners attacked yet another victim on the same day of the life offense, demanding beer from him. They then took the beer from him and petitioner beat him with his fists and a beer bottle. That violent behavior, committed after the murders of the first two victims, is "some evidence" he is unsuitable for parole. It demonstrates a lack of conscience and an utter disregard for the value of human life. [¶] The Court rejects petitioner's argument that the Governor's denial of parole violates petitioner's plea agreement. His argument rests on the premise that at the time of his plea agreement, Penal Code § 3041.2, allowing the Governor to reverse a finding of suitability by the Board, had not yet been enacted. However, petitioner agreed to an indeterminate sentence with a maximum of life. In addition, the California Supreme Court has already ruled that the Governor's power of reversal is not an ex post facto violation. ( Rosenkrantz, supra, 29 Cal.4th 616, 637-652, 128 Cal.Rptr.2d 104, 59 P.3d 174.) Just as the Governor is not barred from considering facts a jury did not find beyond a reasonable doubt, he is not precluded from considering such evidence in exercising his discretion to reverse a Board decision granting parole. ( See id. at 679, 128 Cal.Rptr.2d 104, 59 P.3d 174.) As such, petitioner should expect to serve the maximum term unless and until the Board and Governor agree he is suitable for parole. ( See In re Dannenberg (2005) 34 Cal.4th 1061, 1097-1098, 23 Cal.Rptr.3d 417, 104 P.3d 783.)[¶] Accordingly, the petition is denied.
Lodgment no. 6. On October 17, 2005, petitioner filed a habeas application in the California Court of Appeal, which denied the petition on October 20, 2005. Lodgment nos. 7-8. Finally, on December 27, 2005, petitioner filed a habeas corpus application in the California Supreme Court, which denied the petition on September 20, 2006. Lodgment nos. 9-10.
On November 7, 2006, petitioner filed the pending habeas corpus petition under 28 U.S.C. § 2254, challenging the Governor's reversal of his grant of parole, and on February 17, 2007, respondent filed his answer. On March 8, 2007, petitioner filed his traverse, ...