APPEAL from an order of the Superior Court of Los Angeles County, Peter P. Espinoza, Judge. Affirmed. (Los Angeles County Super. Ct. No. BH005793).
The opinion of the court was delivered by: Woods, J.
CERTIFIED FOR PUBLICATION
We find the Governor's reversal of the decision by the Board of Parole Hearings to grant parole to Michael McDonald is not supported by any evidence McDonald currently poses an unreasonable risk of danger to society. Accordingly, we affirm the trial court's grant of the petition for writ of habeas corpus.
FACTUAL AND PROCEDURAL SYNOPSIS
A jury convicted McDonald and Kenneth German of the second degree murder of 16-year-old Alexander Geraldo; both McDonald and German appealed.*fn1 German's conviction was reversed, but McDonald's was affirmed. According to the appellate decision (which was read into the record at McDonald's parole hearings), the following evidence was presented at trial: "In December 1991, German was home on leave from the Army. Prior to returning home for the holidays, he had received word that his girlfriend was spending time with [Geraldo]. At a party on December 27, 1991, at Neilson Hul's house, attended by a group of friends with ties to Long Beach Poly High School, particularly the school's R.O.T.C. program and the social organization known as the Ace[s] of Spades, German is quoted as saying several times that he wanted to kill the victim [Geraldo]. There was some discussion at the party about [Geraldo] helping the police investigate an automobile burglary involving Chavares McNary and [Geraldo]. That night McNary beat up [Geraldo].
"The next night German, Jesus Cast[a]n[e]da, Jack Steele and Nielson Hul went to [Geraldo's] house, lured him outside, and German beat [Geraldo] up because of a belief that [Geraldo] had earlier scratched German's vehicle. Evidence was presented that the members of the group with German were armed with pepper spray and had intended to kill [Geraldo]. The plan was foiled by the presence of appellant McDonald who was not then part of the plan.
"Later the same night a meeting involving German, Cast[a]n[e]da, Hul, Steele and McNary took place. German ran the meeting and ultimately directed McNary and Hul to kill [Geraldo].
"The next day, according to Cast[a]n[e]da, he and German discussed killing [Geraldo]. German wanted [Geraldo] dead because of his flirtation with German's girlfriend and because [Geraldo] had helped the police.
"Shortly thereafter German returned to the [A]rmy.
"On the morning of February 2, 1992, the body of [Geraldo] was found 15 to 20 feet down a cliff near the ocean in San Pedro. Found near the body was a guitar string with a washer attached. There were signs of a struggle. The deputy medical examiner determined the cause of death to be a combination of the effects of ligature strangulation, consistent with guitar string and stab wounds to the neck. He gave the time of death to be between 8:00 p.m., February 1 and 7:00 a.m., February 2.
"The prosecutor's theory was that German directed and conspired with others to commit the murder from his far off army post. This view was unsuccessfully disputed by German. The prosecution offered evidence that McDonald was more directly involved with the murder. Indeed evidence was offered showing that the guitar strings found near the victim and believed to be the murder weapon were not inconsistent with the guitar strings later found at McDonald's home. In addition to physical evidence, the prosecution offered the testimony of witness Adam Stocks that McDonald admitted to having participated in the killing of [Geraldo]. According to Stocks, McDonald elaborated further and explained that [Geraldo] was killed by means of strangulation, beating and being thrown off a cliff. At trial, McDonald offered a 'time line alibi' defense which was unsuccessful."
According to McDonald's probation report, "From what can be determined, Kenneth German, Jay Castaneda, Nielson Hul and a couple other R.O.T.C. members" formed the "'secret'" group known as the "'Aces of Spades,'" which punished any violation of its "perverted 'Code of Silence.'" Although German was a couple of years older and already out of school and in the military when the crime occurred, he "had influence" and "was their leader." "Following an intensive investigation where police interviewed hundreds of witnesses, McDonald, Chavares McNary, Bryan Davis and Schuyler MacPherson were arrested. MacPherson was the only adult . . . . McDonald and Davis were eventually found unfit by the Juvenile Court; and . . . MacPherson and Davis were found not guilty by jury while McDonald was convicted of second degree murder. . . ." A "jury misconduct matter" caused the conviction to be overturned.
In the meantime, new information implicating German was discovered, and he was later arrested and charged once his significant role in the murder was determined. When police first spoke with German, he "apparently first thought the assailant had been Jay Cast[a]n[e]da because he . . . was 'real crazy.'" However, he later said he recalled conversations with McDonald "whom he said sounded angry at the victim for stealing or not sharing something with him." He remembered McDonald describing Geraldo in "unflattering terms" and saying "he wanted to 'take care of him.'" This may have occurred at the December 1991 party when he was home on leave he said. German said he had not taken McDonald "too seriously because [McDonald] was not a member of the 'Aces of Spades' but wanted to merely hang around with them (per reports)." "After McNary was arrested, he said on the day of the murder MacPherson and Davis picked both [McNary] and McDonald up . . . and went over to McDonald's house where McDonald cut a length of wire from a spool in his garage and put a washer on the end of it. They had planned on picking up the victim and beating him up again because he had 'snitched.'" He said the wire was to 'hang his ass' (per reports). Because McNary did not believe that [Geraldo] would get into the same car with them because of their earlier problems, they drove him first to the 'cliffs', dropped him off and returned to the victim's house to pick him up.
"Interesting to note," the probation report continued, "McNary later told the police after the suspects returned, he saw Davis and McDonald beat [Geraldo] to the ground and observed McDonald strangle (garrote) him. He also saw Davis aid in the strangulation and dragging and eventually tossing the body over the cliffs.
"Needless to say," the probation report stated, "the police found a great deal of conflicting and self-serving statements throughout this lengthy investigation, some of which undoubtedly led to the not guilty verdicts of some of the defendants."
In April 1996, Castaneda contacted a police detective and gave a statement about the events surrounding Geraldo's murder, and said the Aces of Spades had pretended to be friendly with Geraldo so he would not be suspicious before the murder. He said German had ordered McNary and Hul to kill Geraldo because it was their turn to prove themselves, but McNary told him (Castaneda, who was not present) Hul could not go through with it, so McNary took McDonald and recounted McDonald's role in the killing. According to Castenada, "though [Geraldo], Chav[a]res McNary, Nielson Hul, Adam Stock[s], Ying Cha, Jack Steel[e] and Ken ...