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In Re Javier Rodriguez

March 1, 2011


(Santa Clara County Super. Ct. No. 96583)

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


In this appeal, we review whether the superior court properly granted Javier Rodriguez's petition for habeas relief arising out of a decision by Governor Arnold Schwarzenegger (the Governor) to reverse the 2008 decision of the Board of Parole Hearings, which had granted Rodriguez parole. For reasons that follow, we conclude that the superior court was correct in granting the petition for habeas relief.

Factual and Procedural Background*fn1

On September 17, 1984, at approximately 9:30 p.m. Rodriguez and his two brothers, Manuel and Elias, went to a convenience store in East San Jose. Elias went into the store. As he was entering the store he noticed Antonio Padilla urinating on the door. Elias told Padilla that urinating on the door was "not proper behavior." Padilla followed Elias into the store, dragged him outside and proceeded to beat him about the face and kick him in the foot. The police came to the scene, but Padilla had fled by the time they arrived.

The brothers left the convenience store in separate cars. They went to Elias's and Manuel's home. At the time Rodriguez lived in Fairfield. Rodriguez and his brother Manuel stayed outside the house and discussed how angry and embarrassed they were by what Padilla had done to Elias. Eventually, Manuel went into the house and got a rifle from his bedroom and they returned to the convenience store.

At the convenience store, Padilla was talking to three young women. When Rodriguez pulled into the parking lot, Padilla walked "rapidly toward the car" and looked in. Manuel shot Padilla four times. He died later at Alexian Brother's Hospital.

Later, Manuel told the police that he did not approach the store with the intention of shooting Padilla, but if Padilla came at him he was prepared to shoot him. During a subsequent conversation between Manuel and Rodriguez, which was overheard by police officers, Manuel stated that he did not want to kill Padilla.

On January 22, 1985, Rodriguez was convicted of first degree murder. (Pen. Code, § 187.) The court sentenced him to 25 years to life in state prison.

On November 13, 2008, the Board of Parole Hearings (the Board) found Rodriguez suitable for parole in that he would not pose an unreasonable risk of danger to society if released from prison. The Board found the following factors supported its decision to grant parole: "no juvenile criminal record of assaulting others, that to the best of [his] ability [Rodriguez had] enhanced [his] ability to function within the law upon release"; his participation in Alcoholics Anonymous, lack of a significant criminal history of violent crime, Rodriguez's "maturation, growth and greater understanding"; realistic parole plans, including family support and a job offer;*fn2 positive institutional behavior; the fact that he had expressed remorse for his actions; had demonstrated that he understood the nature and magnitude of his offense; had taken responsibility for his criminal behavior and demonstrated a desire to change to good citizenship; and two evaluations by state psychologists that supported his release on parole and indicated that Rodriguez's risk to public safety was low.

The Board's decision became final on March 13, 2009. (Cal.Code Regs., tit. 15, § 2041, subd. (h).) Thereafter, on April 19, 2009, the Governor reversed the Board's decision granting Rodriguez parole. The Governor based his decision on the following four reasons: "the first degree murder for which Mr. Rodriguez was convicted was especially heinous because the crime partners fired a rifle repeatedly in a public area, killing the victim and placing others at risk of death or serious injury" because the victim "was talking with other women right before the murder"; concern that Rodriguez had made "inconsistent statements," which consisted of Rodriguez telling the Board in 2008 that he put the rifle in the car because he was driving back to Fairfield, but he told the police that he took the rifle with him for protection in case he ran into Padilla; the 2008 mental health evaluation by Dr. Reynoso that found that Rodriguez lacked insight into his crime; and Rodriguez had "limited involvement in self-help and therapy over the years."

Thereafter, on May 11, 2009, Rodriguez filed a petition for writ of habeas corpus in Santa Clara County Superior Court. Rodriguez alleged that the Governor's decision violated his due process right because it was not supported by some evidence that his release on parole would pose an unreasonable risk to public safety.

On October 7, 2009, the superior court issued an order to show cause. The order outlined the four grounds that the Governor had cited to support his decision to reverse the Board as follows: the gravity of the commitment offense; Rodriguez's inconsistent statements; Rodriguez's lack of insight into the commitment offense; and Rodriguez's limited record of group or individual self-help and therapy.

The Attorney General filed a return on November 3, 2009, in which it was argued that the Governor's decision was supported by Rodriguez's purported lack of insight into the crime.*fn3 Rodriguez filed his traverse on November 20, 2009.

On February 24, 2010, the superior court granted Rodriguez's writ of habeas corpus. In a lengthy written order, the court found that the Attorney General had explicitly conceded that there was no support for the Governor's finding that Rodriguez had made inconsistent statements; had impliedly conceded two other grounds cited by the Governor by not addressing them; but had affirmatively alleged that Rodriguez's " 'lack of insight' " supported the Governor's action.

The superior court noted, "While it is accurate that the psychologist said Petitioner's insight could improve, this appears true only in the sense that it would always be 'advantage[ous]' for insight to improve and be further articulated." The court went on to say "It is not dispositive, however, as an indicator of present dangerousness or parole unsuitability in this case when considered in light of all 'relevant reliable information.' [Citations.] The very doctor upon whom the Governor relies noted this as only one factor out of many which informed her ultimate conclusion that Petitioner was not a present danger. Parsing the psychological report, and removing a single factor out of its thoughtful consideration within the whole, is neither medically nor logically supportable." Accordingly, finding no evidentiary support for the Governor's decision, the superior court vacated the Governor's decision, reinstated the Board's grant of parole and ordered that Rodriguez be released on parole forthwith.

The Attorney General filed a timely notice of appeal.

On appeal the Attorney General argues that a gubernatorial parole reversal must be upheld if some evidence supports the Governor's finding that an inmate will pose an unreasonable risk of danger to the public and here the circumstances of Rodriguez's crime and his lack of insight into its causative factors constitute some evidence. Further, the superior court erred in ordering Rodriguez's immediate release ...

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