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In Re Marcos Gonzalez

October 24, 2011

IN RE MARCOS GONZALEZ, ON HABEAS CORPUS.


(Super. Ct. No. 08F09286)

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

In re Gonzalez CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In 1993 20-year-old defendant Marcos Gonzalez participated in the murder of his abusive stepfather, Fernando Martinez. Defendant was convicted of murder in the second degree and sentenced to 16 years to life in prison with a minimum eligible parole date of May 28, 2004. On May 16, 2008, the Board of Parole Hearings (Board) found defendant suitable for parole. However, the Governor reversed the Board's decision, concluding that if released, defendant would pose an unreasonable risk to public safety. Defendant filed a petition for a writ of habeas corpus in the trial court, which the court granted, vacating the Governor's reversal and reinstating the Board's suitability finding. The People appeal, arguing the trial court's order should be reversed because the Governor's decision is supported by some evidence that defendant's release poses a risk of danger to society. We conclude the Governor's decision is not supported by the record and affirm the trial court's decision.

FACTUAL AND PROCEDURAL BACKGROUND The Crime

Defendant was born in 1972. His parents separated when he was two years old and his mother, Laura Jaramillo, married Louis Oquendo. Defendant had a good relationship with his stepfather. The family suffered no physical or substance abuse and participated regularly in church activities.

Defendant graduated from high school in 1992 with a 3.6 grade point average and completed three semesters at a community college. Defendant studied psychology and sociology, planning to be a sociologist. He wanted to continue his education with the United States Air Force and had been found qualified to do so.

Prior to his arrest, defendant worked for three years at a theater box office and had worked one summer as a government clerk through a special program with the Department of Social Services. Defendant was not involved in gangs and did not abuse drugs or alcohol. Except for the commitment offense, defendant has no criminal record.

The following facts are taken from our nonpublished opinion in People

v.

Gonzalez (Aug. 22, 1996, C020610): "In the latter part of 1992 defendant's mother, Laura Jaramillo, met and developed a relationship with the victim, Fernando Martinez. By September 1993 the couple had married and Martinez began to physically abuse Jaramillo on a regular basis. On September 25, 1993, following an episode of abuse, Jaramillo decided to leave Martinez. She asked defendant to go to the apartment she shared with Martinez and retrieve her microwave, purse and television. At approximately 8 p.m., defendant, his half brother Henry Oquendo, his cousin Jose Oquendo and Jose's friends, Jesse and Francisco Orona, proceeded to the apartment to retrieve Jaramillo's possessions and to exact revenge for the assault on defendant's mother. Along the way, defendant purchased duct tape to bind the victim. Jose Oquendo had a knife, and Jesse Orona had a gun. All the members of the group except defendant expressed a desire to beat up Martinez; Jose Oquendo and one of the Orona brothers expressed a desire to stab him.

"When the group arrived at the apartment, no one was home so they entered and waited for Martinez who arrived within a few minutes. While defendant hid in a bathroom, the others fell on Martinez, beating and stabbing him several times.

"Shortly after the attack, a neighbor discovered Martinez, bound with duct tape and covered with blood. He died a short time later from multiple stab wounds."

"In an interview with an investigating officer, defendant claimed he had locked himself in a bathroom during the attack. After hearing sounds of a struggle, he opened the bathroom door and saw his associates turning off the kitchen light. Defendant told his brother Henry, 'I'm -- I'm leaving. I'm gettin' out.' Defendant left the scene alone and drove to his residence and then to the State Theater where he saw portions of 'Air Born' and 'Warlock.' Defendant failed to notify the authorities of the attack even though Martinez was alive when defendant left. Defendant did not take any of the personal items he had gone to his mother's residence to retrieve."

A jury found defendant guilty of second degree murder and further found that a principal was armed during the commission of the offense. The court sentenced defendant to 16 years to life in state prison.

Prison Experience

In almost 14 years in state prison, defendant never received a "115" disciplinary memo.*fn1 Defendant received a few "128" counseling memos, but none of the memos involved violence or the threat of violence.*fn2

Defendant participated in the victim/offender reconciliation group, in which victims and inmates meet to impress upon inmates the consequences of their crimes on others. He attended a weekly men's violence prevention class, and completed a conflict resolution program. In 2003 and 2008 defendant attended anger management classes. A correctional counselor commended defendant for his involvement in numerous self-help programs.

Defendant obtained vocational training in radiology and the optical lens lab. He also began training in office services. Defendant has worked as a teacher's aide, yard crew member, library clerk, building porter, and in the canteen. He has received high work evaluations.*fn3

Defendant has no record of substance abuse, either in or out of prison. He attended Alcoholics Anonymous because it was an available self-help program.

2003 Parole Hearing

In 2003 the Board denied defendant parole. A 2003 psychological evaluation found defendant "appears to have become somewhat naively involved in the crime. His naivete remains, to some degree, in his belief that he could have persuaded [the victim] to attend counseling . . . but he has also matured in knowing what he would do to avoid criminal events in the future. . . . He evidences no particular anger, impulse, attitude, mood, or emotional dyscontrol symptoms related to a risk of dangerousness at this time. On a scale of low, medium, and high, he is considered to have a low risk of dangerousness."

At the 2003 hearing defendant minimized his responsibility for the murder. Defendant admitted responsibility for conspiring to assault Martinez, bringing his accomplices to the apartment, and purchasing the duct tape used in the assault.

Defendant stated he did not want to kill Martinez and had only moral accountability for his death. According to defendant, the others wanted to assault Martinez, and they came up with the idea of using the duct tape, which defendant purchased "for packaging purposes." He attempted to dissuade the others from harming Martinez. Defendant admitted hearing Martinez say "no" and being dragged into the bedroom. He also admitted lying to police afterward but said he did so to prevent his mother from finding out his brother was there.

The panel denied defendant parole, noting he was an active participant in the crime, a crime which revealed a lack of regard for the life and suffering of another. In addition, the panel did not believe defendant really accepted responsibility for the murder of Martinez. It found defendant's responses "very evasive, not being able to grasp what you are responsible for . . . we feel that you minimize your participation and minimize your responsibility in the death of Mr. Martinez."

The panel noted that institutionally, defendant had much to be commended for, including "remain[ing] disciplinary-free," receiving above average work reports, and participating in various self-help workshops. However, the panel found defendant had not sufficiently participated in beneficial self-help programs. Ultimately, the panel concluded the positive aspects of defendant's behavior did not yet outweigh the factors contributing to his unsuitability for parole.

2005 Parole Hearing

The panel again denied defendant parole in 2005. The panel found Martinez's murder "a very vicious death" and the motive for the crime "very trivial in relation to the alternatives," noting defendant's ...


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