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In Re Filberto Duran

COURT OF APPEAL - FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA


December 7, 2010

IN RE FILBERTO DURAN ON HABEAS CORPUS.

The opinion of the court was delivered by: Nares, Acting P. J.

In re Duran CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Diego County)

Petition for writ of habeas corpus following the Governor's reversal of a grant of parole. Petition denied.

In September 1986, when he was almost 22 years of age, Filberto Duran murdered 16-year-old Alberto Gomez by stabbing him in the chest. Duran pleaded guilty in 1987 to one count of second-degree murder and was sentenced to an indeterminate prison term of 15 years to life. Now 45 years of age, Duran became eligible for parole in 1996. In February 2009 the Board of Parole Hearings (the Board) found Duran suitable for parole. However, the Governor reversed the Board's decision on June 30, 2009, finding Duran "would pose an unreasonable risk of danger to society [if released from prison] at this time."

Duran filed a petition for writ of habeas corpus in the superior court, which the court denied in October 2009. In November of that year, he filed a petition for writ of habeas corpus in this court and later filed an amended petition for writ of habeas corpus. We issued an order to show cause (OSC) to the warden of the correctional facility where Duran is incarcerated. The Attorney General filed a return to the OSC on the warden's behalf, and Duran filed a traverse to the return.

We conclude the evidence presented at the Board's parole suitability hearing supports the Governor's decision to reverse the Board's grant of parole. Accordingly, we deny Duran habeas corpus relief.

FACTS AND PROCEEDINGS

A. Commitment Offense (Second Degree Murder)

As Duran pleaded guilty in this matter, the following description of the commitment offense, which was read into the record during the February 3, 2009 parole suitability hearing, is taken from the probation report that was prepared in connection with his 1987 conviction.

"On [September 27, 19]86, a Saturday, at approximately 11:10 at night, police officers responded to 2900 Market Street because a fight at the Filipino Hall occurred. Upon arrival, officers drove into the parking lot area of the building and stopped for about five minutes to monitor the activity in the area. Officers noted that most of the people were leaving the area and they began to concentrate on both sides of the sidewalk on Market Street. Officers drove slowly through the area and observed a group of people, mostly females, standing on the south side of the intersection at 29th and Market Streets. Officers heard one of the females yelling, "Don't do it, don't do it!" At this time, officers saw [Duran] who was wearing a dark gray sweater and black pants break from the group and move toward a white convertible car which was stopped at the intersection. [Duran] reached in the car and struck 16-year-old victim Alberto Gomez in the chest area with a knife while Mr. Gomez was seated on the passenger side of the vehicle. The driver of the vehicle then accelerated from the area while [Duran] ran south on 29th Street. A police officer chased after [Duran]. Mr. Duran was caught at the rear of a complex about half way down the street. Officers handcuffed [Duran] and saw a knife which [Duran] dropped next to the building. The knife was recovered.

"[Duran] identified himself to officers as Filberto Ruano. While sitting in the police vehicle, [Duran] made unsolicited statements to officers in Spanish. He said, '(translated) I was mad because my sister was involved. I was high on beer and PCP. I blame myself because I stabbed him, but my friends dropped the ball. The dude is my friend. I hope he doesn't press charges. I'm not sad. It will just be some years in jail. I'm very thirsty. I threw the knife before they got me. But the cops beat me up anyway. I hope that fucker lives. They had my sister on the floor. That's why I was mad. The cops had her on the floor. I even thought about stabbing a cop. I ran up and stabbed the one in front. I was going to do the one in the back but I didn't have time. My little sister. It was their fault. My friends. They had her on the floor. That wasn't good. But if he doesn't die he better not press charges. They don't like him in the 'hood anyway. He is a snitch. I had just smoked a PCP joint. I just wanted to stick him about three inches, but the knife got away from me. I know I'm going to go. This is my second time. The first time was a cab driver.'

"At approximately 2:20 in the morning on [September 28, 19]86, [Duran] was interviewed at the San Diego Police Department Homicide Office. After being advised of his constitutional rights in Spanish, [Duran] chose to speak with officers. Mr. Duran was asked if he knew why he had been brought to the police station. After pausing, he replied, "No, tell me." [Duran] was then told that officers were investigating a homicide and they advised Mr. Duran that an individual had been stabbed and they had reason to believe that he was involved. [Duran] then replied, "I stabbed him." [Duran] was then asked to tell officers what happened and he said the following: 'I got to the dance about 10 o'clock. I danced awhile and then later, a few small fights broke out. The police arrived and started breaking up the dance. After the fight, I left and went outside. I had been drinking and smoking some PCP so I went across the street to the corner. I was just standing there with some other people. Then, I saw that the police had my sister and brother-in-law on the ground and were beating them up. I got pissed off about that time, this white car drove by and this guy started talking shit and pointing at me. I lost my cool, my mind, and I stabbed him. It happened real fast so there's not really much to say.'

"[Duran] was then asked if he had attempted to stab the passenger in the backseat . . . and he replied, "No, I didn't. When I stabbed [Gomez], the car took off real fast. Everything happened real fast.' Mr. Duran was then asked about what he had done after the stabbing and he said, 'I ran but the police chased me. Then, they caught me. As soon as they got me I dropped the knife right there. That's it.' At one point during the interview, [Duran] asked, 'How's the other guy? The one that I hit.' The officers responded, 'He died.' And, [Duran] said, 'He died, really?' Mr. Duran was placed in County Jail."

Duran pleaded guilty in 1987 to one count of second-degree murder. The court sentenced him to an indeterminate prison term of 15 years to life.

B. The Present Proceedings

1. Suitability hearing

At the February 3, 2009 parole suitability hearing before the Board, it was noted that Duran's minimum parole eligibility date was July 10, 1996, and this was his sixth subsequent parole consideration hearing since that date. The presiding commissioner read into the record the statement of facts (quoted, ante) contained in the probation officer's report and then asked Duran, "Does that sound right?" Duran responded, "Sounds right," but then remarked, "There's some few things that I don't remember saying."

In response to questions regarding the commitment offense, Duran indicated he was a member of the Sherman gang and he had been drinking beer and smoking PCP and marijuana and "doing all kinds of drugs" before he stabbed Gomez. Duran "had a fight . . . with some other people" that night in the dance hall, and the fight made him "mad." When asked whether he knew why he had a fight inside the hall, Duran stated he was "just pushing and throwing [gang] signs" and "that pushing and shoving turn[ed] into a fight and I got into a little fight inside and then I got out of the hall." (Italics added.)

When asked to explain how he could "start flashing signs and killing people," Duran replied, "[i]t was just like a game," and it was just a "normal" and "macho" thing to do at a party, and he "just want[ed] to show the other guys" where he was from, even though they were all from the same neighborhood. Although he acknowledged that what he did inside the hall was "stupid," he also stated that "it just happened because [of] drugs." He also indicated he had lost his job for missing work and had "started getting frustrated" when he ran out of money.

When asked why he focused on and stabbed Gomez, Duran replied, "I was always mad. I was real mad." He then explained that he "thought [Gomez] was going to continue the fight" that occurred inside the dance hall. Duran also explained he was already mad when the police arrived to break up that fight and he saw an officer restraining his sister on the ground. When asked what he thought about Gomez's death, Duran replied that "it's something that fills my heart with sadness." Although Duran acknowledged that Gomez and his family were "friends because we used to live like three blocks away from each other," he then claimed he "just lost it" and "didn't know who I was stabbing. Just the person that I was then who was talking to me."

When asked whether he was paranoid the night of the stabbing as a result of smoking PCP and "tak[ing] all kinds of drugs," Duran answered, "[N]o, no, no. Because see, I smoked PCP early that day. Probably like [seven] or [eight] hours before that fight. Because before that day, I went to the beach and smoke[d] a little bit of weed. We just smoked one cigarette of PCP. That was early. . . . I went home and took a shower and I just went to the party and I smoked a little bit of weed and drinked [sic] beer."

When asked about "some pretty cold statements" he made to the police following his arrest, Duran said he "[didn't] really remember much of what [he] said that night." When the presiding commissioner told Duran "it's unusual you couldn't remember what you said," Duran eventually replied, "I've tried to remember if I said those. I might have."

Reviewing Duran's criminal history, the presiding commissioner noted that Duran was convicted of several juvenile offenses: burglary, resisting, disorderly conduct, and failure to participate in a court-mandated work program project. The presiding commissioner also noted that Duran was "convict[ed] of assault, likely [to] produce great bodily injury after apparently you and several others beat a 31 year old cab driver who was walking home, breaking his jaw bone and the orbital bone under his eye." When asked why he got into the fight with the cab driver, Duran initially replied, "I don't know." He then explained, "I don't remember what we said, but he just stood up face to face and he just punched me and then we just start[ed] fighting." He then acknowledged he had been drinking.

In response to questions from the Board regarding his personal background, Duran indicated he was born in Mexico on February 4, 1965, the third of six children. One brother was shot and killed in prison during a riot, and his other two brothers were deported and live in Tijuana. His mother lives in Tijuana and works in San Diego. He remains close to his family.

Regarding Duran's post-conviction programming, the deputy commissioner commented that Duran had "programmed very well since coming to the institution." Duran achieved two vocational certifications (machine shop and mill and cabinet). The deputy commissioner commented that Duran is a "hard worker" and has "exceptional grades and exceptional chronos from [his] staff or staff and supervisors." He obtained a GED in 1992; took a class in business basics in Spanish, and another in anger management; and participated in Alcoholics Anonymous beginning in 1993. He has been abstinent since his incarceration and is aware of the temptation he would face if paroled.

The Board considered Duran's most recent psychological evaluation, which evaluator Susan Hoyt, Psy.D., completed on October 26, 2007. Dr. Hoyt's report noted that Duran "presents an enduring pattern of inner experiences and behaviors, evident across a broad range of personal and social situations, that are experienced as problems in areas such as internal dysphoria (abandonment concerns, over-rebellion, and decreased esteem), variable interpersonal functioning (failure to conform with societal norms, impulsivity, aggressiveness, disregard for safety of self or others, irresponsibility) and/or poor self-perception. Such a pattern has led to significant impairment in various areas of functioning, and is suggestive of traits associated with a personality disorder." (Italics added.) Dr. Hoyt opined that "this diagnosis could remain with [Duran] until he is able to demonstrate prosocial and unimpaired functioning for a protracted period of time without being under a supervised custodial living circumstance." (Italics added.) As the Board noted, Dr. Hoyt's report also noted that "there is indication of a substance abuse disorder."

Regarding her assessment of Duran's risk for violence, as the Board noted, Dr. Hoyt concluded under the HCR-20 ("The History - Clinical - Risk Management - 20") measure, which includes 20 risk factors for future violence, that "Duran's subscale scores were in the 'low' range on the clinical and risk management scales while he scored slightly higher on the historical scale which was 'moderate.' [Duran's] total score on the HCR-20 indicated that overall, he has risk factors that place him in the moderate risk range for future violence." (Italics added.) Dr. Hoyt also concluded that, although Duran "presented as pleasant, mature and . . . in control of his impulses," he was only "moderately insightful." (Italics added.)

Regarding Duran's disciplinary history during his incarceration, the deputy commissioner noted that Duran "[has] not had any disciplinaries since 1993"; the last "115" was for theft of food, he had six "128s" between 1989 and 1991, and five of those six were for being absent from his work assignment.

Regarding Duran's parole plans, it was noted there was an active immigration hold, and Duran, if paroled, would be deported to Mexico and he would live with his mother in Tijuana. He plans to work at the same beer distributing business in Tijuana where his brother works.

During closing arguments, the deputy district attorney opposed the granting of parole because Duran's release "would pose an unreasonable risk of danger to society." He argued that Duran murdered 16-year-old Gomez for a "very trivial reason" in that "it was done over bad blood." He also argued that, after police chased Duran down and arrested him, Duran said he was mad because his sister was involved, thus indicating that Duran's mindset at the time of the murder was not "any different today"; Duran expressed no remorse for his crime, and his parole plans were inadequate.

a. The Board's 2009 decision granting parole

The Board granted parole, finding that Duran was "suitable for parole [and] would not pose an unreasonable risk of danger or a threat to public safety if released from prison." The Board based its decision on the following factors: Duran has "enhanced [his] ability to work within the law"; he obtained his GED; he "continued [his] self-help programming"; his institutional job assignments were "very outstanding"; his parole plans are "realistic"; he has maintained "close family ties"; the psychological report was "favorable"; he has stayed away from gang activity in prison; and he has been "drug and alcohol free."

3. The Governor's 2009 reversal of the Board's 2008 decision

On June 30, 2009, the Governor reversed the Board's 2009 decision to grant Duran parole. After summarizing the facts of the commitment offense and Duran's criminal history and crediting "various positive factors,", the Governor concluded that Duran "would pose an unreasonable risk of danger to society" if released from prison. The Governor based his decision on the following factors: (1) the commitment crime was "especially heinous" because the stabbing "involved great trauma" and Duran knew the victim; (2) Duran's "version of events has changed over time, tending to minimize his culpability for the murder," his 2007 mental health evaluator (Dr. Hoyt) stated he was only "moderately insightful," and Duran's inconsistent explanations and Dr. Hoyt's comments "indicate that he does not fully understand the circumstances leading to the crime"; (3) Duran "has shown difficulty accepting responsibility for his prior criminal conduct" in that he "continues to minimize his culpability for the prior assault on the cab driver" and he "appears to deflect blame for his actions onto his victims"; (4) Duran "has only recently expressed remorse for Gomez's death"; (5) given the "significance of drugs and alcohol in the murder," the Governor is "concerned about Duran's inconsistent substance abuse therapy while in prison"; and (6) his most recent mental health evaluation in 2007 raised additional concerns by indicating that his risk of recidivism was rated "moderate" and that there may be problems with his social functioning.

The Governor summarized his decision as follows: "The gravity of the crime supports my decision, but I am particularly concerned about Duran's continued minimization of his role in the life offense, his lack of insight and remorse into Gomez's murder, and by the comments expressed in Duran's 2007 mental-health evaluation. This information indicates that Duran would pose a current, unreasonable risk of danger to society if released at this time. The San Diego County District Attorney's Office and the San Diego Police Department agree, and have registered their opposition to Duran's parole."

4. Petition for writ of habeas corpus in the superior court

Duran filed a petition for writ of habeas corpus in the superior court, which was denied on October 16, 2009. The court shared the concerns expressed by the Governor in reversing the Board's grant of parole and found that, "[w]hile none of the factors . . . separately may indicate that [Duran] still poses a risk of danger to society," a review of the entire record indicated that "the requisite 'some evidence' of current danger still exists in this case." The court explained that Duran's "apparent lack of insight into the facts of how [the] commitment offense occurred, along with the lack of additional and consistent substance abuse therapy, is still troublesome to both the Governor and this Court. The Governor implied that [Duran] still needed more time in custody to work out the recognition of the acts of his past, and this Court agrees."

5. The instant habeas proceeding

On November 10, 2009, Duran filed a petition for writ of habeas corpus in this court, and later filed his first amended petition for writ of habeas corpus (petition). Duran's principal contention is that the Governor's reversal of the Board's grant of parole violates due process because there is no evidence in the record to support the conclusion he is currently dangerous. He asserts that, "[a]fter [23] years of incarceration, [he] has reached the point where the [commitment] offense no longer provides evidence of his current dangerousness especially in light of overwhelming affirmative evidence of rehabilitation."

We issued an OSC to C. Noll, Warden of the Correctional Training Facility in Soledad, California.

The Attorney General filed a return to the OSC on the warden's behalf. The Attorney General argues that "[t]here is some evidence to support the Governor's conclusion that [Duran's] lack of insight into his actions, his inadequate remorse for the murder, his unfavorable 2007 mental health evaluation, his failure to accept responsibility for his previous, violent criminal conduct, and his inconsistent substance abuse therapy demonstrate that the gravity of the commitment offense is still probative of his current dangerousness."

Duran filed a traverse to the return. His principal contention is that "[t]here was no evidence to support the factors of unsuitability cited by the Governor, and [the Governor] failed to relate those factors to a finding that [Duran] remained currently dangerous."

DISCUSSION

Duran contends the Governor's decision reversing the Board's 2009 decision to grant parole violates his federal right to due process because there is no evidence in the record to support the conclusion he is currently dangerous. We conclude the record contains some evidence to support the Governor's finding that Duran currently poses an unreasonable risk to public safety and thus is unsuitable for parole. Accordingly, we deny Duran habeas relief.

A. The Parole Suitability Framework

In In re Vasquez (2009) 170 Cal.App.4th 370 (Vasquez), this court recognized that "[t]he granting of parole is an essential part of our criminal justice system [that] is intended to assist those convicted of crime to integrate into society as constructive individuals as soon as possible and alleviate the cost of maintaining them in custodial facilities." (Id. at p. 379, italics omitted.)

In reviewing an inmate's suitability for parole, the Board "shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration . . . ." (Pen. Code, § 3041, subd. (b).)

Once the Board sets a parole release date, the California Constitution empowers the Governor to review any decision by the Board to grant, deny, revoke, or suspend the parole of an inmate (like Duran) convicted of murder and sentenced to an indeterminate prison term. (Cal. Const., art. V, § 8, subd. (b).)*fn1 After reviewing the Board's parole decision, the Governor "may only affirm, modify, or reverse the decision . . . on the basis of the same factors [the Board] is required to consider." (Ibid.; see also Pen. Code, § 3041.2, subd. (a) [when reviewing the Board's decision, the Governor "shall review materials provided by the [Board]"].)

The foregoing constitutional and statutory provisions thus set forth standards and criteria that limit the Governor's review of a parole decision and give rise to a protected liberty interest under the California due process clause. (Rosenkrantz, supra, 29 Cal.4th at pp. 660-661.) "Although these provisions contemplate that the Governor will undertake an independent, de novo review of the prisoner's suitability for parole, the Governor's review is limited to the same considerations that inform the Board's decision." (Ibid.)

The decision whether to grant parole is an inherently subjective determination. (Rosenkrantz, supra, 29 Cal.4th at p. 655.) In making the parole suitability determination, the Board and the Governor must consider "[a]ll relevant, reliable information," such as the nature of the commitment offense, including behavior before, during, and after the crime; the prisoner's social history, mental state, criminal record, and attitude towards the crime; and parole plans and conditions. (Cal. Code Regs., tit. 15,*fn2 § 2402, subd. (b).)

Because Duran committed the murder in 1986, the Board's parole decision in this case was governed by Penal Code section 3041 and section 2402 of the regulations.*fn3 (Shaputis, supra, 44 Cal.4th at p. 1256, fn. 13.)

Section 2402 of the regulations sets forth the factors that guide the Board's assessment of whether the inmate poses an unreasonable risk of danger to society if released from prison, and thus whether he or she is suitable for parole. (Shaputis, supra, 44 Cal.4th at p. 1256; see also Regs., § 2402, subd. (a) ["a life prisoner shall be found unsuitable for and denied parole if in the judgment of the [Board] the prisoner will pose an unreasonable risk of danger to society if released from prison"].) A factor that, when taken alone, "may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability." (Regs., § 2402, subd. (b).)

The factors or circumstances that tend to show unsuitability for parole include: (1) commission of the commitment offense in "an especially heinous, atrocious or cruel manner"; (2) a previous record of violence; (3) a history of "unstable or tumultuous relationships with others"; (4) commission of a sadistic sexual offense; (5) a "lengthy history of severe mental problems related to the offense"; and (6) serious misconduct in prison. (Regs., § 2402, subd. (c).)

The factors or circumstances that tend to show suitability for parole include: (1) lack of a juvenile record of violent crime; (2) a history of "reasonably stable relationships with others"; (3) signs of remorse, such as "attempting to repair the damage, seeking help for or relieving suffering of the victim, or indicating that [the inmate] understands the nature and magnitude of the offense"; (4) the mitigating circumstance that the inmate committed the crime "as the result of significant stress in his life, especially if the stress had built over a long period of time"; (5) the mitigating circumstance that the inmate committed the crime as a result of battered woman syndrome; (6) lack of "any significant history of violent crime"; (7) being of an age that reduces the probability of recidivism; (8) preparation of realistic plans for release or development of marketable skills that can be put to use upon release; and (9) participation in institutional activities indicating an enhanced ability to function within the law upon release. (Regs., § 2402, subd. (d).)

The foregoing factors or circumstances are "general guidelines," illustrative rather than exclusive, and " 'the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the [Board or Governor].' " (Rosenkrantz, supra, 29 Cal.4th at p. 654, quoting Regs., § 2402, subds. (c), (d).) Thus, a parole release decision entails an "attempt to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts." (Rosenkrantz, supra, at p. 655.) The Board or Governor is free to consider facts apart from those found true beyond a reasonable doubt by a jury or judge. (Id. at pp. 678-679.)

Although the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for finding an inmate unsuitable for parole, "the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or postincarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety." (Lawrence, supra, 44 Cal.4th at p. 1214.)

B. "Some Evidence" Standard of Judicial Review

In Rosenkrantz, the California Supreme Court addressed the standard a court must apply when reviewing a parole decision by the executive branch. Holding that a parole decision by the Board is subject to what it referred to as the "some evidence" standard of review (Rosenkrantz, supra, 29 Cal.4th at p. 658, fn. 12), the Supreme Court stated that "the judicial branch is authorized to review the factual basis of a decision of the Board denying parole . . . to ensure that the decision comports with the requirements of due process of law, but that in conducting such a review, the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based on the factors specified by statute and regulation." (Id. at p. 658, italics added.)

Rosenkrantz also held that the same "some evidence" standard of review applies when a court reviews a decision by the Governor to reverse a decision of the Board granting parole. (Rosenkrantz, supra, 29 Cal.4th at pp. 658, 667.) Specifically, the Supreme Court concluded that "such review properly can include a determination of whether the factual basis of such a decision is supported by some evidence in the record that was before the Board." (Id. at p. 667, italics added.) The high court explained that it is "irrelevant" that a reviewing court "might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole." (Id. at p. 677.) Although a court must ensure that the Governor considered the same factors the Board considered, "the court's review is limited to ascertaining whether there is some evidence in the record that supports the Governor's decision." (Ibid., italics added.)

In Lawrence, supra, 44 Cal.4th 1181, our Supreme Court reaffirmed its holding in Rosenkrantz that the Governor's decision regarding parole suitability is subject to the "some evidence" standard of review. (Lawrence, supra, at p. 1205.) However, in doing so it recognized that the characterization of that standard in Rosenkrantz as extremely deferential and requiring "[o]nly a modicum of evidence" (Rosenkrantz, supra, 29 Cal.4th at p. 677) had generated confusion and disagreement among the lower courts "regarding the precise contours of the 'some evidence' standard." (Lawrence, supra, at p. 1206.) Recognizing that the legislative scheme contemplates "an assessment of an inmate's current dangerousness" (id. at p. 1205, original italics), the high court in Lawrence clarified that "when a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings." (Id. at p. 1212, italics added.)

As to this "some evidence" standard of judicial review, the Lawrence court further explained that although the standard is "unquestionably deferential, [it] certainly is not toothless, and 'due consideration' of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision─the determination of current dangerousness." (Lawrence, supra, 44 Cal.4th at p. 1210, italics added.)

In the companion case of Shaputis, supra, 44 Cal.4th 1241, our Supreme Court reiterated that "the proper articulation of the standard of review is whether there exists 'some evidence' that an inmate poses a current threat to public safety, rather than merely some evidence of the existence of a statutory unsuitability factor." (Id. at p. 1254, citing Lawrence, supra, 44 Cal.4th at p. 1191.)

C. Analysis

We conclude the Governor's determinations that Duran currently poses an unreasonable risk of danger to public safety, and thus is unsuitable for parole, are supported by "some evidence." Substantial evidence amply supports the Governor's finding that Duran's commitment offense was especially heinous because the stabbing involved great trauma. It is undisputed that Duran stabbed the 16-year-old victim in the right anterior chest with a folding knife. The autopsy report indicates that the knife "perforate[d] . . . the chest cavity through the second right intercostal space, piercing the anterior aspect of the right upper lobe of the lung, pericardial sac and then perforate[d] through . . . the aorta and through the anterior wall of the right pulmonary vein." When asked at the Board hearing why he stabbed Gomez, Duran indicated that he was mad because of the fight that erupted in the dance hall─which, the evidence shows, he helped to provoke by throwing gang signs─and he was mad because a police officer who was trying to break up the fight was restraining his sister on the ground.

As already discussed, the aggravated nature of Duran's crime alone does not provide some evidence of current dangerousness to the public unless the record also establishes that something in his pre- or postincarceration history, or his current demeanor and mental state, indicates that the implications regarding his dangerousness that derive from his commission of the murder remain probative to the determination his release poses a current threat to public safety. (Lawrence, supra, 44 Cal.4th at p. 1214.)

Here, the record shows the aggravated nature of Duran's commitment offense combined with his lack of adequate insight into the circumstances leading to that offense, his difficulty accepting full responsibility for his prior criminal conduct, and the unfavorable information in his most recent mental health evaluation, are probative to, and thus support, the Governor's determination that Duran would pose a current, unreasonable risk of danger to society if released on parole.

In her 2007 mental health evaluation report, Dr. Hoyt concluded that Duran was only "moderately insightful." Duran demonstrated his lack of adequate insight into the circumstances leading to the murder when he testified at the 2009 parole suitability hearing before the Board. When asked about the murder, Duran acknowledged that, before he stabbed Gomez, he was mad because he "had a fight with other people" inside the dance hall. When asked whether he knew why he had a fight inside the hall, Duran stated he was "just pushing and throwing [gang] signs," and as a result he "got into a little fight." (Italics added.) When asked for further explanation, Duran replied that his flashing of gang signs was "just like a game," and it was just a "normal" and "macho" thing to do at a party. Although he eventually acknowledged that what he did inside the hall was "stupid," he also stated that "it just happened because of drugs."

Duran's foregoing testimony indicates that, as the Governor found, he still has a tendency to minimize his culpability for the murder. His testimony indicates he still minimizes the role he played in starting the fight in the dance hall that required police intervention to restore peace and security in the neighborhood and was one of the circumstances that led to the murder. When he was asked why he stabbed Gomez, Duran replied he was mad because he "thought [Gomez] was going to continue" and "escalate" the fight inside the dance hall. Although he acknowledged Gomez "didn't do nothing," the record shows Duran does not accept full personal responsibility for his role in starting that dance hall fight by provocatively throwing gang signs. His statement that the fight in the hall was "little" also shows a lack of insight into the gravity of his conduct in provoking the altercation.

Duran's suggestion that drugs made him do what he did in the dance hall shows he still lacks insight into the fact that he was responsible for his substance abuse and fully accountable for his behavior while under the influence of drugs he chose to use. His testimony at the Board hearing shows he still minimizes the extent and consequences of of his substance abuse the night he murdered Gomez. When asked whether he was paranoid the night of the stabbing as a result of smoking PCP and "taking all kinds of drugs," Duran answered, "[N]o, no, no. Because see, I smoked PCP early that day." This testimony conflicts with his statement to police soon after he was arrested. The probation officer's report, which provided the factual basis for Duran's guilty plea, indicates that Duran, while sitting in the police vehicle, made an unsolicited statement that he was "high on beer and PCP."

Duran told the Board he was also mad before he stabbed Gomez because he observed a police officer restraining his sister on the ground outside the dance hall. In his testimony, Duran demonstrated little insight into the fact that he was personally responsible for provoking the fight that required the intervention of the police and the restraint of his sister.

Dr. Hoyt's 2007 mental health evaluation report, which is the most recent such report considered by the Board and the Governor, contains additional unfavorable information. Dr. Hoyt found that Duran "presents an enduring pattern of inner experiences and behaviors" that he experiences as "problems," such as (among other things) "variable interpersonal functioning (failure to conform with societal norms, impulsivity, aggressiveness, disregard for safety of self or others, irresponsibility)." (Italics added.) Dr. Hoyt also concluded that "[s]uch a pattern has led to significant impairment in various areas of functioning, and is suggestive of traits associated with a personality disorder." In the diagnostic impression section of her report, Dr. Hoyt indicated that Duran suffers from "Antisocial Personality Disorder." Dr. Hoyt also opined that, "Due to the nature of personality traits, this diagnosis could remain with [Duran] until he is able to demonstrate prosocial and unimpaired functioning for a protracted period of time without being under a supervised custodial living circumstance." Furthermore, Dr. Hoyt found that Duran "has risk factors that place him in the moderate risk range for future violence." (Italics added.)

The record also supports the Governor's finding that Duran has shown difficulty accepting responsibility for his prior criminal conduct. Duran's testimony at the parole suitability hearing shows he continues to minimize his culpability for the brutal prior assault on the cab driver. When asked why he got into the fight with the cab driver, Duran initially replied, "I don't know." He then explained, "I don't remember what we said, but he just stood up face to face and he just punched me and then we just start[ed] fighting." Duran then acknowledged he had been drinking. This testimony indicates that, as the Governor found, Duran "appears to deflect blame for his actions onto his victims."

For all of the foregoing reasons, we conclude the Governor's determinations that Duran currently poses an unreasonable risk of danger to public safety, and thus is unsuitable for parole, are supported by some evidence.

DISPOSITION

The petition for writ of habeas corpus is denied.

I CONCUR:

McINTYRE, J.

McDONALD, J., Dissenting.

The relief requested in Duran's petition for habeas corpus should be granted. The Governor's veto of the Board of Parole Hearings' (BPH) grant of parole should be reversed and the BPH's grant of parole reinstated. There is not "some evidence" to support the Governor's determination that Duran currently poses an unreasonable risk of danger to society if released from incarceration on parole. (In re Lawrence (2008) 44 Cal.4th 1181, 1214.)

The majority opinion concludes some evidence supports the Governor's veto of parole based on the commitment offense having been committed in an especially heinous manner, buttressed by the current mantra of lack of insight and acceptance of responsibility, and by purportedly unfavorable information in the recent mental health evaluation. (Maj. opn., ante, at p. 20.) The commitment offense was not especially heinous. Factors that support the finding that the crime was committed "in an especially heinous, atrocious or cruel manner" (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1)) include the following: (A) multiple victims were attacked, injured, or killed in the same or separate incidents; (B) the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (C) the victim was abused, defiled, or mutilated during or after the offense; (D) the offense was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering; and (E) the motive for the crime is inexplicable or very trivial in relation to the offense.

None of the factors listed in California Code of Regulations, title 15, section 2402, subdivision (c)(1), appear to have been present in connection with Duran's commitment offense, a second degree murder that, while reprehensible, was not aggravated beyond the elements of second degree murder. The majority opinion's conclusion there is some evidence of Duran's current dangerousness appears to have been based, in large measure, on its findings that he did not have adequate insight into his prior criminal conduct and did not accept responsibility for his conduct.*fn4 Before Lawrence and Shaputis were decided, it appears that virtually all decisions of the BPH and Governor denying parole relied primarily on the gravity of the commitment offense. (See In re Lawrence, supra, 44 Cal.4th at p. 1206 [noting "the practical reality that in every published judicial opinion [reviewing a parole decision], the decision of the Board or the Governor to deny or reverse a grant of parole has been founded in part or in whole upon a finding that the inmate committed the offense in an 'especially heinous, atrocious or cruel manner' "].) In the wake of Lawrence and Shaputis, the articulated grounds for denial of parole now seem usually based, at least in part, on the inmate's asserted "lack of insight," which has become the " 'new talisman.' " (In re Shippman (2010) 185 Cal.App.4th 446, 481 (dis. opn. of Pollak, J.).) The intensified interest in this malleable factor--which is not among the criteria indicative of unsuitability for release on parole set forth in the governing regulations (Cal. Code Regs., tit. 15, §§ 2281, 2402)--seems to have been sparked by the Supreme Court's opinion in Shaputis, in which the Governor's reversal of an award of parole was upheld because his reliance on the gravity of the inmate's commitment offense was coupled with concern about the inmate's "lack of insight into the murder and into the years of domestic violence that preceded it." (In re Shaputis, supra, 44 Cal.4th at p. 1258.)

The weight placed on this factor in Shaputis has stimulated far greater use of it by the BPH and Governor than was formerly the case. Considering that "lack of insight" is not among the factors indicative of unsuitability for parole specified in the sentencing regulations and had been rarely relied on by the BPH or Governor in the past, the increasing use of this factor is likely attributable to the belief of parole authorities that, as in Shaputis, "lack of insight" is more likely than any other factor to induce the courts to affirm the denial of parole. The recitation of "lack of insight," a more subjective factor than those specified in the regulations as indicative of unsuitability, should have no talismanic impact on judicial review, particularly because a statement that an inmate "lacks insight" appears to be stating a conclusion drawn from other evidence rather than being evidence itself. (Cf. In re Macias (Nov. 9, 2010, H033605) ___ Cal.App.4th ___ [2010 Cal.App. Lexis 1924, *33] [a finding of lack of insight must be rooted in a "factually identifiable deficiency in perception and understanding [involving] an aspect of the criminal conduct or its causes"].)

As with any other factor relied on to find an inmate unsuitable for release on parole, "lack of insight" is probative of unsuitability only to the extent that it is both demonstrably shown by evidence in the record, and is rationally indicative of the inmate's current dangerousness. The Governor's finding that Duran lacked "insight" and failed to accept responsibility is not demonstrably shown by the record as of the 2009 BPH hearing. His statements to forensic evaluator Dr. Susan Hoyt clearly expressed his remorse, both for his crime and for the pain he caused to the victim's family members, and acknowledged his responsibility for the crime. He expressed his understanding (insight) how his underlying character flaws, exacerbated by his substance abuse, had produced his criminal conduct.

Furthermore, the evaluation by Dr. Hoyt was unequivocal: it detailed Duran's past and current risk assessment and concluded that under the clinical and current evaluation domain, "[h]e . . . has adequate access to the appropriate use of judgment and reasoning. He has no significant additional difficulties, has no major mental illness and is emotionally and behaviorally stable. In this domain [he] presents a moderately low risk of future violence." Dr. Hoyt further concluded that in the management of future risk domain Duran "presents a low risk of future violence."

Based on my review of the record, there is not some evidence to support the Governor's veto of the BPH's grant of parole to Duran and I would order Duran's release on parole subject to the conditions imposed on parole by the BPH.

McDONALD, J.


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