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In Re Pablo Gomez On Habeas Corpus.

December 15, 2010

IN RE PABLO GOMEZ ON HABEAS CORPUS.


Original proceedings; petition for a writ of habeas corpus to challenge an order of the Superior Court of Orange County, Thomas M. Goethals, Judge. Petition granted. (Super. Ct. No. M12803)

The opinion of the court was delivered by: Moore, J.

CERTIFIED FOR PUBLICATION

OPINION

In his petition for a writ of habeas corpus, petitioner challenges the decisions made by the Governor in 2009 and 2010, to reverse the findings of the Board of Parole Hearings (the Board) that he was suitable for parole in November 2008 and November 2009 (his fifth and sixth parole hearings).

In reversing the findings of the Board, the Governor determined petitioner's release on parole posed an unreasonable risk of danger to public safety based on two grounds. First, the Governor found the second degree murder committed by petitioner was especially atrocious and heinous. Second, the Governor concluded petitioner lacked adequate insight into the commission offense because he had given differing versions over the years.

While the Attorney General contends the Governor's reversal of the Board's findings is supported by "some evidence" and should be upheld, we disagree. Twice, the Governor has reversed the Board based solely on the existence of two "immutable factors" which are unsupported by the record, and which amount to a rote recitation of factors the Governor believes are suggestive of risk. Moreover, the Governor has failed to articulate any rational nexus between his reasons for reversing the Board's grant of parole, and any unreasonable risk of danger to public safety posed by petitioner's release. (See In re Moses (2010) 182 Cal.App.4th 1279, 1286; citing In re Lawrence (2008) 44 Cal.4th 1181, 1210.)

Accordingly, we conclude the Governor's reversal of the Board's findings of parole suitability have violated petitioner's due process rights. We grant petitioner's petition for a writ of habeas corpus, and order the Governor to vacate his decision and to reinstate the Board's findings that petitioner is suitable for parole as the Board determined in 2008 and 2009.

I

FACTS AND PROCEEDINGS

The Commitment Offense

In December 1989 petitioner was 25 years old. He was married, and he was the father of three young daughters. After an argument with his wife regarding her failure to cook him dinner, he went out with two friends to attend a party in Anaheim. He drank 12 beers at the party, which was more than he usually drank. Around 3:00 a.m. petitioner's friend Manuel Pompa, got into a fight with another partygoer who was a friend of the 18 year-old victim, Jose Pineda. After the fight ended, petitioner went into the kitchen of the residence and armed himself with a kitchen knife that had an eight-inch blade.

Shortly thereafter, petitioner and his two friends left the party in petitioner's vehicle. As they were starting to leave, petitioner observed a second vehicle pull up behind his vehicle. One of the people in the second vehicle was the person who had previously fought with Pompa. Petitioner told Pompa to get out of the vehicle and cause damage to the other vehicle with a tire iron. Pompa did so. By this time, several people who were at the party joined the fracas and began to attack Pompa.

Petitioner, who up until this time had remained inside of his vehicle, disembarked and fought his way over to Pompa. Petitioner grabbed the tire iron from Pompa, and he began to swing the tire iron and his knife at all comers. While petitioner was swinging the knife, he stabbed Pineda. Pineda died as a result of a stab wound to the abdomen.

In 1990, petitioner was convicted by a jury of second degree murder in connection with Pineda's death. He was sentenced to 15 years to life in state prison. He began serving his prison term in November of 1990. Under California's statutory parole scheme he became presumptively eligible for release over 10 years ago.

The 2008 Parole Hearing

Petitioner told the Board he took out the kitchen knife for "protection," because Pompa had been beaten up by the victim's friend, and because he was "scared" of people he believed were outside waiting for them. He also said his decision was influenced by the fact he was drunk. As to the actual stabbing, petitioner told the Board, "I just remembered I was just moving my hand back and forth with the knife. Suddenly I stabbed this guy." When queried by the presiding commissioner regarding whether he realized at the time that he had stabbed the victim, petitioner responded "No," and said he did not know the victim had died until the day he was arrested for the crime.

In addressing the changes he had made to his life since he had been incarcerated, petitioner said: "I see the person I was back then to -- I have done a lot of changes to that due to the -- all the groups that I have attended; therapy groups. . . . I could [have] done a lot of things differently if I had known the tools that I have learned right now. . . . Sadly, I hurt a lot of people from my actions and I have tried to do my best. I tried to do my best to change the person that I was out there."*fn1

The Board's 2008 Decision

In concluding petitioner would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison, the Board found him suitable for parole. At the outset, the Board acknowledged the life crime was "very callous and showed a disregard for human suffering" because petitioner instigated others to take a tire iron and to break the windshield of another person's vehicle during what turned into "a melee at a party."

The Board noted "for a period of time" petitioner had excused his behavior on the fact he was "mad" at his wife because she didn't cook him dinner, and if she had done so, he might have stayed home that night and not gotten into trouble. The Board recognized that petitioner, having matured and attended many programs, finally accepted responsibility for stabbing the victim.

In this regard, the Board told him: "You've come around from that and the Panel believes that you have accepted your responsibility for your participation in this murder. You've indicated in the past you didn't realize you stabbed somebody. . . . You've thought about it. You've gained insight into what caused it, this murder to occur. . . . But the positive aspects of your case, at this point, including your insight, your remorse, your level of understanding into what happened and the progress that you've made in the meantime are all positive and in your favor and have resulted in a consideration for your grant tonight. . . . You're accepting responsibility, even though, initially, you didn't realize you stabbed anybody. Regardless, you are accepting the fact that you, in fact, did and you're not making any excuses for your behavior. And that, certainly, is all a positive set of attitudes."

The Board also considered these additional factors in its finding of parole eligibility: Petitioner had no juvenile record of assaulting others; he had a relatively stable social history; he was not involved in gangs; he did not have an extensive criminal history except for driving on a suspended license; he did not have an extensive alcohol and drug history; and, he had positive parole plans. Moreover, the Board took into account that petitioner's July 2008 psychological evaluation, rated him as being in the "low range" for the likelihood of future violence.*fn2 Moreover, the Board noted petitioner had not engaged in institutional misconduct except for a single "CDC 115" violation in 2003 for "excessive conduct" while in the visiting room with his ex-wife, and a spate of 128 counseling chronos, all prior to 1997.*fn3

The Governor's 2009 Reversal of the Board's 2008 Findings

In reversing the Board's 2008 findings that petitioner was suitable for parole, the Governor relied on two factors in his decision -- the commitment crime; and the Governor's perception that petitioner had failed to take responsibility for his actions.

First, the Governor characterized the crime of second degree murder in this case as being "especially atrocious" and as manifesting "a shocking disregard for the life of others" because petitioner had the opportunity to avoid the murder, and he did not do so. The Governor also cited to the fact that petitioner was inside of his vehicle when the free-for-all started, but instead chose to get out of his vehicle and begin swinging a tire iron and a knife in a crowd of people. The Governor further described the crime as being very "callous" because the circumstances ...


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