The opinion of the court was delivered by: Benke, Acting P.J.
CERTIFIED FOR PUBLICATION
Original proceeding on a petition for writ of habeas corpus. Relief denied.
Vincent Russo (petitioner) has been incarcerated since 1985, when he was sentenced to prison for life with the possibility of parole for pleading guilty to one count of kidnapping to commit robbery, one count of attempted murder and enhancements for inflicting great bodily injury and use of a firearm.*fn1 In July 2009, at his tenth parole hearing, the Board of Parole Hearings (the Board) found petitioner not suitable for parole.
Petitioner challenges the Board's decision on the ground it violates his due process rights because the decision is not supported by "some evidence" that petitioner poses a current risk of danger to society. Petitioner also challenges the Board's reliance on a 2008 amendment to Penal Code section 3041.5, subdivision (b)(3), which postponed his next parole hearing for three years. He claims the amended statute violates state and federal Constitutional prohibitions against ex post facto laws.
As we explain, we conclude the record before the Board in July 2009 contains "some evidence" petitioner's release poses a current risk to public safety. We also conclude the Board's decision to apply the 2008 amendment to Penal Code section 3041.5, subdivision (b)(3) when scheduling petitioner's next parole hearing three years from the July 2009 hearing did not violate the constitutional prohibitions against ex post facto application of the law. Accordingly, we deny petitioner habeas relief.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Commitment Offense and Criminal History
The facts relied upon by the Board at the July 2009 parole hearing were mainly derived from the August 2007 Life Prisoner Evaluation. We adopt those facts, as supplemented appropriately, for the purpose of our analysis of the record.
On December 22, 1978, the victim, Dale Scott Eaton, was working the night shift at the Stage Stop liquor store in Ramona, California. At approximately 11:00 p.m., petitioner entered the store, put a .45 caliber pistol in Eaton's face and ordered Eaton to the floor. Petitioner took $515 from the register and ordered Eaton to accompany him to petitioner's vehicle. Eaton complied and sat in the front passenger seat. Petitioner drove, while continuing to hold the gun on Eaton.
About 35 minutes later, petitioner stopped the car in a rural area and ordered Eaton out of the vehicle. Petitioner told Eaton to move towards the rear of the vehicle and across the road. Petitioner next ordered Eaton to lie down on the ground. Petitioner placed the gun against the back of Eaton's head. According to Eaton, petitioner said "Merry Christmas" and pulled the trigger, twice shooting Eaton at pointblank range in the back of the head, once in the left bicep, once in the right forearm and once in the left cheek.
When petitioner saw headlights approaching, he promptly left the crime scene. Eaton rolled himself down an embankment and later crawled back up to the roadway where he was found by a passing motorist, taken to the hospital and miraculously survived. The shooting left Eaton grievously incapacitated.
Investigations revealed petitioner and James Baraibar, his roommate, had stolen three guns from the Camp Pendleton Marine Base--including the one used in the shooting of Eaton--where they both were stationed prior to petitioner's commitment of the life crime. Petitioner and Baraibar used the guns and donned ski masks to hide their faces when they previously robbed the Stage Shop liquor store on November 25, 1978, and the U.S. liquor store on December 3, 1978.
On December 23, 1978, Baraibar was stopped by military police for a traffic violation. Two of the stolen guns were found in the vehicle. When deputies subsequently interviewed petitioner, he told them he had loaned his car to Baraibar. He denied any knowledge of the Stage Stop robbery and shooting of Eaton. Some time later, Baraibar told police about the robberies he and petitioner committed together and how petitioner alone committed the kidnap for robbery of Eaton.
In the meantime, petitioner fled California with his common law wife and her daughter. They subsequently moved from place to place, using various aliases to avoid detection and apprehension. They lived in Calgary, Canada, Texas, twice in New York, Florida and finally, in Beaver Falls, Pennsylvania, where petitioner was arrested by the FBI in January 1985, six years after the shooting.
Other than an arrest for driving under the influence of alcohol in September 1977, petitioner had no juvenile or adult criminal history except for the life crime and the two uncharged armed robberies that he and Baraibar committed during the crime spree in 1978 when petitioner committed the life crime.
B. The 2009 Parole Hearing
Despite his positive prison behavior and parole plans, at the conclusion of the July 2009 hearing the Board found petitioner not suitable for parole. The Board denied parole on the ground petitioner "currently poses an unreasonable risk of danger if released from prison." The Board found the commitment offense weighed heavily against petitioner, as petitioner's offense was committed in an "especially heinous, atrocious, and cruel manner because the offense was carried out in a dispassionate and calculated manner. The victim [Eaton] was abused, defiled, or mutilated during or after the offense. The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering, and the motive for the crime is very trivial in relationship to the offense."
The Board also found petitioner's "unstable" social history weighed against his suitability for parole. The Board focused specifically on petitioner's drug and alcohol use at the time of the life crime and petitioner's decision to involve both his common law wife, who was then pregnant with petitioner's ...