The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation (CDCR) following his conviction of second degree murder. He is serving a sentence of fifteen-years-to-life.
In the instant petition, Petitioner does not challenge the validity of his conviction; rather, he challenges the Board of Parole Hearings' (Board) 2007 decision finding him unsuitable for release on parole.
In 2008, Petitioner filed a petition for writ of habeas corpus in Los Angeles County Superior Court challenging the Board's 2007 decision. On May 16, 2008, the superior court denied the petition in a reasoned decision finding the circumstances of the commitment offense, prior criminal history, institutional misconduct, and psychological report provided some evidence to support the Board's decision.
On June 17, 2008, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, which was denied with citation Dannenberg and Rosenkrantz.
On July 24, 2008, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court which was summarily denied.
Petitioner filed the instant petition for writ of habeas corpus on April 1, 2009. Respondent filed an answer on June 18, 2010, and Petitioner did not file a traverse.
On August 23, 1992, at approximately 6:40 p.m., Roberto Vasquez was sitting on the front porch of his friend Omar Sanchez's house in Los Angeles, California. Omar was in the yard when a vehicle drove up and parked by a neighbor's house. There were four or five possible gang members in the car. Petitioner was observed leaning out the window of the front passenger seat pointing a small handgun in the direction of Sanchez and Vasquez and fired approximately four shots at them. Sanchez was able to duck for cover. However, one of the bullets struck Vasquez in the face.
Paramedics arrived at the scene and transported Vasquez to the University of Southern California Medical Center where he was in critical condition. Three days later, on August 26, 1992, he died as a result of a single gunshot wound to the head.
On August 25, 1992, police interviewed the second victim, Omar Sanchez. Police discovered that the assailants were possibly rival gang members with whom Sanchez had a prior run-in. After viewing a yearbook from Burbank Junior High School, Sanchez identified Petitioner as Toby Coronado. Petitioner was later arrested at Marshall High School.
Petitioner was admonished of his rights and acknowledged that he was picked up by three of his friends and they drove to Sanchez's house where a weapon was fired. Petitioner claimed he was aiming at the house and not at the two victims. After the shooting, Petitioner was driven home and his friend Tony took the gun and gave it to an individual named Nancy. The weapon, a .25 caliber handgun, was not recovered. The police retrieved four .25 caliber cases near the scene as well as a bullet. Roberto Vasquez was 12 years old when he was murdered.
There is no independent right to parole under the United States Constitution; rather, the right exists and is created by the substantive state law which defines the parole scheme. Hayward v. Marshall, 603 F.3d 546, 559, 561 (9th Cir. 2010) (en banc) (citing Bd. of Pardons v. Allen, 482 U.S. 369, 371 (1987); Pearson v. Muntz, 606 F.3d 606, 609 (9th Cir. 2010) (citing Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005)); Cooke v. Solis, 606 F.3d 1206, 1213 (9th Cir. 2010). "[D]espite the necessarily subjective and predictive nature of the parole-release decision, state statutes may create liberty interests in parole release that are entitled to protection under the Due Process Clause." Bd. of Pardons v. Allen, 482 U.S. at 371.
In California, the Board of Parole Hearings' determination of whether an inmate is suitable for parole is controlled by the following regulations:
(a) General. The panel shall first determine whether the life prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for a denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.
(b) Information Considered. All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.
Cal. Code Regs. tit. 15, §§ 2402(a) and (b). Section 2402(c) sets forth circumstances tending to demonstrate unsuitability for release. "Circumstances ...