Petition for writ of habeas corpus; relief denied. Robert F. O'Neill, Judge. (Super. Ct. Nos. HC17289, CR87615)
The opinion of the court was delivered by: Benke, Acting P.J.
CERTIFIED FOR PUBLICATION
Rodriguez filed this petition for writ of habeas corpus challenging the Board's decision. His primary contention is that the Board's decision violates his right to due process because the decision is not supported by "some evidence" he poses a current threat to public safety. Rodriguez also challenges the Board's reliance on a 2008 amendment to Penal Code*fn2 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.
We conclude the record before the Board at the February 8, 2010 parole hearing contains more than sufficient evidence to support the Board's finding Rodriguez's release poses a current risk to public safety. We also conclude the Board's decision to apply the 2008 amendment to section 3041.5, subdivision (b)(3) when scheduling Rodriguez's next parole hearing three years from the February 2010 hearing did not violate the constitutional prohibitions against ex post facto application of the law. Accordingly, we deny Rodriguez the habeas relief he requests.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Commitment Offense
At the conclusion of the February 2010 parole suitability hearing, the presiding commissioner read into the record an excerpt from this court's opinion affirming Rodriguez's conviction in March 1991. The presiding commissioner also stated that in reaching its decision, the Board relied on material contained in the current clinical evaluation and three past Board reports, which in turn relied on interviews conducted with Rodriguez. The Board also took into account the correctional counselor's statements and Rodriguez's versions of the crime. The Board characterized those versions of the crime as having "considerable overlap and some differences." Rodriguez entered no objection to the Board's consideration of any of these materials.
The summary of the life term offense contained in petitioner's most recent psychological evaluation prepared by Dr. Richard Kendall in March 2008 incorporates the facts contained in the probation report prepared at the time Rodriguez was sentenced.
According to Dr. Kendall's evaluation, at about 10:00 p.m. on February 1, 1987, police were summoned to Field's residence by a report two persons were injured by gunshots. On arriving police were met by Rodriguez in the driveway of Field's house. Rodriguez was shot in the stomach and bleeding profusely, nearly hysterical, and needed to be restrained. When police entered the home, they found 61-year-old Field dead in the living room, lying face up several feet in front of a green chair. There was a large amount of blood around his head and a pool of vomit was on the floor next to his mouth. The house was ransacked and the telephone cords cut.
In another part of the house police found a .38 caliber pistol on the floor of a bedroom. The pistol was cocked, and there was an odor of gunpowder in the air. A spent bullet casing was found on the floor about a foot away from the pistol. Rodriguez told police two persons committed the crimes and took his car from the front of the residence. Rodriguez was taken to the hospital.
The cause of Field's death was officially listed as multiple skull fractures with intra-cranial hemorrhage from blunt trauma to the head.
When interviewed by police at the hospital, Rodriguez stated that while Field was watching television, two men, one a masked Hispanic and one Caucasian, entered the home and demanded money from Rodriguez. When he refused, the Hispanic man shot him. He also thought he heard Field being shot. The two men left and Rodriguez then lost consciousness. Interviewed at the hospital the next day, Rodriguez recounted essentially the same story.
However, from the time they arrived at Field's residence, the police were suspicious of Rodriguez's story. The blood on the floor was dry, indicating some time had elapsed between Field's death and their arrival. The green chair was covered in blood and blood was splattered on the ceiling above the chair although Field's body was some distance from the chair. Although Rodriguez claimed he had been shot by the robbers, his shirt had no bullet hole and no blood was found in the room where Rodriguez claimed he was shot. The weapon purportedly used to shoot Rodriguez contained only Rodriguez's fingerprints.
Further information developed from Field's son and others confirmed the police officers' initial suspicions. Rodriguez became the chief suspect in Field's murder. In particular, police learned about an ongoing affair between Field's wife and Rodriguez, who was employed by Field and lived in his home. The situation was volatile. Field was unstable and recently threatened Rodriguez with a gun because of the affair. Field's wife reported her husband's conduct to her psychologist and police confiscated Field's guns. The guns were later returned to him. For his part, Rodriguez made a statement to Field's wife that "If I hit him once, I could finish it up."
When confronted with inconsistencies in his version of events and the results of a polygraph test, Rodriguez confessed to killing Field. However, Rodriguez claimed he committed the killing in self-defense and that following Field's death he went to a local bar and convinced an acquaintance, Victor Arzate, to return to Field's house to help him make the scene look like a home invasion robbery had occurred.
In light of Rodriguez's new version of events, the police investigation turned to Rodriguez's accomplice, Arzate. With the assistance of Mexican police, Arzate was arrested in Mexico. Various items from the Fields' home were found in Arzate's possession, including gold jewelry, a diamond bracelet and a pistol with a clip. Contrary to Rodriguez's version of events, Arzate confessed to actually helping Rodriguez kill Field. Arzate recounted that after drinking at a local bar with Rodriguez, Rodriguez said he had fallen in love with his boss's wife. Enroute to Field's home, Rodriguez asked Arzate to help him kill Field. Rodriguez told him he would do the killing and Arzate would make the house look like a robbery had occurred. For this, Rodriguez promised to pay Arzate $500.
At the residence the two spied on Field through a window. Then Rodriguez took a metal bar from his car and the two entered the house quietly. As Field was sitting in a chair, Rodriguez hit him over the head with the metal bar. Arzate selected some jewelry and ransacked the house. Rodriguez told Arzate that Field was still alive and ordered Arzate to finish Field off by strangling him. Arzate complied and strangled Field for about five minutes, during which time Field vomited on Arzate's hand. Arzate received about $160 of the promised $500. After strangling Field, Arzate drove Rodriguez's car to a trolley station, where he left it. Before Arzate left, Rodriguez told him he was going to shoot himself with a pistol to confuse the police.*fn3
B. The 2010 Parole Hearing
At the 2010 hearing, the presiding commissioner asked Rodriguez whether there was anything he would like to "add or clarify" concerning the offense. Rodriguez's attorney responded, "I've advised him not to speak on anything but post-conviction factors." Thus, on advice of counsel, Rodriguez did not answer questions concerning the commitment offense and the events leading up to it.
Despite an exemplary record in prison, various letters offered in support of his release, his parole plans, the absence of a criminal history, and moderate risk of violence in the future, the Board found Rodriguez unsuitable for parole.
C. The Petitions for Habeas Corpus
In 2010, Rodriguez filed a petition for habeas corpus in the San Diego Superior Court. The trial court denied the petition.
In August 2010, Rodriguez filed a pro per petition for habeas corpus in this court. This court issued an order to show cause, appointed counsel for Rodriguez and permitted counsel to file a supplemental petition. Rodriguez's appointed counsel filed a supplemental petition on his behalf, the People filed a return to the order to show cause, and Rodriguez filed a traverse.
In his principal argument here, Rodriguez contends he is entitled to a new parole hearing because the record lacks sufficient evidence to support the Board's finding he is unsuitable for parole. We disagree.
The Record Contains Some Evidence Supporting the Board's Conclusion that Rodriguez is Currently Dangerous to the Public
A. Petitioner's Burden of Proof
In the analogous circumstance where a criminal judgment is challenged by way of a petition for a writ of habeas corpus, our Supreme Court has emphasized the heavy burden a petitioner carries:
"Our state Constitution guarantees that a person improperly deprived of his or her liberty has the right to petition for a writ of habeas corpus. [Citations.] Because a petition for a writ of habeas corpus seeks to collaterally attack a presumptively final criminal judgment, the petitioner bears a heavy burden initially to plead sufficient grounds for relief, and then later to prove them. 'For purposes of collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction and sentence; defendant thus must undertake the burden of overturning them. Society's interest ...