FINDINGS AND RECOMMENDATIONS
Petitioner, Craig L. Bowens, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an indeterminate sentence of twenty-six years to life following his 1987 jury conviction for first degree murder with a penalty enhancement for use of a firearm.*fn1 Here, Petitioner does not challenge the constitutionality of his conviction, but rather, the execution of his sentence and, specifically, the 2007 decision of the Board of Parole Hearings (the "Board") finding him unsuitable for parole.
Petitioner sets forth multiple grounds for relief in his pending petition. Specifically, his claims are as follow:
1) His due process rights were violated by the Board's failure to designate a person to be present at his hearing to ensure that all facts relevant to the decision be presented, pursuant to section 3041.5(a)(3) of the California Penal Code.
2) The procedures employed by the Board to determine parole suitability pose a substantial risk that Petitioner will serve a sentence disproportionate to his individual culpability, in violation of the cruel and unusual punishment and due process clauses of the United States Constitution.
3) His due process rights were violated by the participation of state appointed counsel and the deputy district attorney in his parole suitability hearing.
4) Section 3043 of the California Penal Code, which permits the Board to consider victim statements when determining parole suitability, is invalid.
5) Despite being sentenced to a term of 26 years to life, he is not a life prisoner, but is instead serving a determinate sentence.
6) His indeterminate sentence of twenty-six years to life has been transformed to a determinate sentence of as a result of the application of sentence reduction credits, thus he can no longer be classified as a "life prisoner."
After careful consideration of the record and applicable law, it is recommended that the petition for writ of habeas corpus relief be denied.
The basic facts of Petitioner's commitment offense were summarized by the Presiding Commissioner at Petitioner's parole hearing as follows:
On January 6th, 1986, at approximately 3:17 p.m., the Concord Police Department received a telephone call from Terri, that's T-E-RR-I, Viscia, V-I-S-C-I-A. She informed police that she was at 4447 Fallbrook Road in Concord. She indicated to the police dispatcher that she had just been shot in the head. She informed the dispatcher that the responsible person might still be inside the residence. The dispatcher kept Ms. Viscia on the phone and dispatched police units to the above residence.
Upon arrival, the first police officer attempted to open the front door, but found it locked. The officer asked Ms. Viscia via the police dispatcher to unlock the door. Ms. Viscia indicated that she was physically incapable of doing so. In response, the investigating officer kicked open the door and immediately searched the residence to determine whether there was anyone else inside the residence. During a search of the residence, Ms. Viscia was able to crawl to the bedroom from the bathroom and unlock the door from the inside. The first officer to reach her observed that she was bleeding and had dry blood on her back and arm. Michael Tofanelli, that's T-O, F as in Frank, A-N-E-L-L-I, then 24 was lying on the bed in the master bedroom unconscious but breathing. His eyes were glazed over, or were glazed, but officers detected he had a pulse.
The two victims were taken to Mount Diablo Hospital, while police officers continued to search the residence. Officers observed that the house appeared to have been ransacked with drawers having been left open and clothing having been disturbed. Officers found keys in Mr. Tofanelli's wallet, which were found to fit the vending machine located in the garage. While searching the machine, officers found 42 one hundred dollar bills, 38 fifty dollar bills, and 45 twenty dollar bills, totaling 7,000 dollars. In the kitchen cabinet, officers found various items, which could be used to find drugs.
At the hospital, investigating officers attempted to question Ms. Viscia, due to Mr. Tofanelli being unable to answer questions. At first, Ms. Viscia was unable to elaborate on the information she had given to the first officer at the scene. When she was found, she was holding her right hand to the back of her head and she stated, quote, 'They shot us, they tried to kill us. Am I going to die?' end quote. Ms. Viscia later testified that she said very little to the investigating officers while at the hospital, because she thought Michael Tofanelli would be able to answer their questions. She was later informed by one of the nurses that Michael Tofanelli had died.
Ms. Viscia was subsequently able to identify co-defendant David Stevenson as the person who had shot her. She had been uncertain about the co-defendant's last name, but was reminded by Richard Egan, E-G-A-N, who had visited her at the hospital. Ms. Viscia later testified that a male, later identified as David, called and spoke to her and to Mr. Tofanelli on the offense date. Ms. Viscia knew David and recognized him when he came to her house later that day, January 6th, 1986. After David arrived, Ms. Viscia took a shower and dressed. At that point, she was unaware that anyone else was inside the residence other than herself, Michael Tofanelli and Dave. Once dressed, Ms. Viscia observed the defendant, Craig Bowens was also inside the residence.
After Ms. Viscia returned to the bedroom, Mr. Tofanelli entered the bedroom and told her that he was going to take a shower. As Ms. Viscia was removing makeup from a purse, she indicated that the co- defendant slapped her across the back of the head without warning or without apparent provocation. Ms. Viscia, who was frightened by the co-defendant's behavior, went into the bathroom to inform Tofanelli. As she went into the bathroom, she turned and observed the co-defendant removing a small chrome automatic pistol from the area of his waistband.
Ms. Viscia went into the bathroom and told Tofanelli about what transpired between she and the co-defendant. Tofanelli, who appeared incredulous put on a sweatshirt and briefs and opened the bathroom door. Tofanelli immediately knelt to his knees and put both hands in the air. Ms. Viscia then observed the defendant standing in the bedroom. The defendant stated, quote, 'Tell your old lady to get in the shower.' After getting into the shower, Ms. Viscia could see in the crack between the door and the frame that defendant was holding both arms straight out from the shoulder as though he were holding a gun.
Ms. Viscia was left alone in the bathroom and heard what sounded like ransacking going on in the bedroom. She heard someone ask where the money was and she heard Mr. Tofanelli say that there was not any money. She also heard the co-defendant state, quote, 'You said there [was a] lot of money here,' end quotes. After Mr. Tofanelli returned to the bathroom, he sat down in the shower with Ms. Viscia. She indicated that they both heard noise emanating from the phone intercom and Tofanelli indicated that he would come back and take care of it.
After he left the bathroom, the buzzing sound stopped. After the stereo in the bedroom was turned up, Ms. Viscia heard Michael Tofanelli asking, quote, 'What are you guys doing,' end quotes. She then heard the sound of a shot. The co-defendant then entered the bathroom, opened the shower door and twice shot Ms. Viscia. Some minutes later, Terri Viscia came out of the shower and observed Michael Tofanelli lying on his back across the bed. She took the phone back to the bathroom and locked the door. She called the police from the bathroom and did not leave that room until police arrived.
Ms. Viscia stated that money was missing from her wallet and also from Michael Tofanelli's wallet. Prior to the shooting, she estimates that she had 120 dollars in her wallet. In addition, she indicated that 27 dollars was [sic] enclosed in an envelope, was [sic] also in her wallet. When she reclaimed the wallet, the 120 dollars was gone, but the 27 dollars was still in the envelope. She estimates that Michael Tofanelli had anywhere from 300 dollars to 500 dollars in his wallet. She informed police that Michael Tofanelli kept an Uzi machine pistol in a compartment in the headboard in the master bedroom. She also indicated that he kept a .22 automatic in the master bedroom. The investigating officer did locate the .22 automatic, but the Uzi was not on the premises.
Ms. Viscia had been shot in the back of the head, but the bullet had fragmented. No surgical procedures were done to remove those fragments. The certificate of death indicates that Michael Tofanelli died on January 8th, 1986. The causes of death are listed as, quote, 'gunshot would [sic] of the head and stab wound of the heart,' end quotes.
The autopsy indicates that Michael Tofanelli had been stabbed four times in the chest with at least one of these wounds having, quote, 'cause a very significant wound in the heart, with hemorrhage and actual death of heart muscle in that area. And even though this was sutured at the hospital, in my opinion, I believe that his was also a potentially fatal wound,' end quotes.
There was also a single gunshot wound to the back of the head. The entry wound was described as, quotes, 'stellate,' that's S-T-E-L-L-AT-E, end quotes, which indicates the gun was held against the back of the head. The bullet was apparently removed from a point just behind the forehead. There was also a slash type wound on Michael Tofanelli's neck, but this wound had not apparently injured any blood vessels. There was also evidence of a bruise over Tofanelli's left eye. (Ans. Ex. 1A at 67-74).
Following a jury trial, Petitioner was found guilty of first degree murder with a penalty enhancement for use of a firearm. Petitioner was sentenced to twenty-six years to life imprisonment with the possibility of parole. His minimum eligible parole date passed on June 10, 2003. On January 23, 2007, Petitioner appeared before the Board of Parole Hearings for his second subsequent (third overall) parole consideration hearing. After considering various positive and negative suitability factors, the panel determined that Petitioner would pose an unreasonable risk of danger to society if released, and concluded that he was not suitable for parole. Petitioner sought habeas corpus relief from this decision in the Contra Costa County Superior Court. The court denied his petition on October 15, 2007 with a reasoned opinion. Petitioner subsequently sought habeas corpus relief in the California Court of Appeal, First Appellate District and the California Supreme Court. The petitions were denied without comment on January 10, 2008 and March 12, 2008, respectively. Petitioner filed this federal petition for writ of habeas corpus on June 27, 2008. Respondent filed an answer on September 2, 2010 and Petitioner filed his traverse on November 5, 2010.
IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Federal ...