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In Re Matthew Lopez On Habeas Corpus.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)


February 3, 2012

IN RE MATTHEW LOPEZ ON HABEAS CORPUS.

(Super. Ct. No. WHC968)

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

In re Lopez

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Based on evidence that inmate Matthew Lopez had not participated in adequate therapy or rehabilitative programs, did not present an adequate parole plan, and had not acquired adequate insight into the triggers for his violent and bizarre behavior, the California Board of Parole Hearings (Board) denied his request for parole and deferred his next parole hearing for five years. The trial court, however, granted in part his petition for a writ of habeas corpus, finding there was no evidence to support the Board's deferral of his next parole suitability hearing for five years. The Attorney General appeals.

The Attorney General raises two procedural and one substantive issue. We need not consider the procedural challenges because Lopez loses on the merits based on long-standing precedent and an overabundance of evidence. The trial court erred by reversing the Board's decision to defer Lopez's next hearing for five years. We reverse the trial court's partial grant of habeas corpus relief.

FACTS

In describing the facts of the attempted murder of a random pedestrian in 1994, the Board relied on the summary we provided in our 1996 opinion. (People

v.

Lopez (Mar. 25, 1996, C020721) [nonpub. opn.].) Those facts are reported again here.

Lopez was unhappy because a cyst on his buttocks would not heal, fillings in his teeth kept falling out, and his younger sister was "a brat" who frequently went into his room and "mess[ed] everything up." Lopez decided he wanted to "get it over with," but he did not have the courage to kill himself. As an alternative, he decided to commit a crime that would result in his imprisonment for the rest of his life. After reading a newspaper article about a drunk driver who killed a pedestrian, Lopez decided he would do something similar to achieve his goal of a life prison term. He resolved he would not hit anyone who was young, or who was accompanied by other people or a dog.

Lopez drove his car around Rocklin for two days, looking for a victim who met his criteria. On the morning of August 29, 1994, defendant saw 51-year-old Carol Barnes walking down the street. After driving around the block twice to gather his courage, Lopez hit Barnes with his car while driving at a speed of approximately 30 miles per hour. Barnes suffered numerous broken bones, head trauma, and internal bleeding and bruising.

After hitting Barnes, Lopez drove off quickly, but he returned to the scene soon thereafter and told an officer that he had fallen asleep at the wheel. Subsequently Lopez conceded he had hit Barnes intentionally.

The defense presented evidence from a psychiatrist who related that defendant had made statements indicating he only wanted to hurt his victim, not kill her.

The facts more relevant to whether Lopez will remain a danger to society for the next five years emerged at his suitability hearing. The commissioners asked Lopez many questions about his insight into the causative factors that motivated his conduct, the therapy and programs he had undertaken in prison, and the development of a relapse prevention plan. He fell miserably short in each of these areas. In denying his request for parole and postponing another suitability hearing for five years, the Board explained its rationale.

"We do note that you do lack insight into the causative factors of your conduct. A couple of things, really, do bother this Panel. The extent that you would go to gain attention is incredibly high. And it's unusual, generally, people will, in their depression, and so for [sic], will injure themselves and make a plea in that way to gain attention. In your particular case, you went out and found someone else to hurt, and hurt badly, to get the attention. And we want to know, and I asked you that question about that; why didn't you, you know, do something different? Why did you have [to] hurt somebody like this? And you indicated, that's just the plan you came up with. And that gives us a lot of trepidation. . . . But in a lot of ways, with the lack of self--help and therapy, your insight has not grown significantly in regards to understanding how the precursors and the factors that lead [sic] up to this crime."

The Board was equally concerned about the inadequacy of Lopez's relapse prevention plan, although it acknowledged that his family was willing to converse with him when he experienced stress. Nevertheless, the Board concluded that talking to his mother and grandmother was not enough. It further explained: "[B]ut the expectation is that you explore things further and understand the things much better and have a much better relapse prevention plan before you re-entry [sic] society."

Moreover, in the Board's view, Lopez's institutional adjustment had been limited. "You have not upgraded yourself in [sic] through self-help and therapy. You haven't done those things to enhance your ability to function within law upon release. . . . [B]ut yours is one of the cases that self-help and therapy is critical; critical. And you've been told this by prior Panels. . . . And yet, you resist exploring these issues."

The Board was emphatic. "You need to start doing some self-help and therapy. Of all the people in this institution, you're somebody who really really needs to do that. . . . You have proven that you can make some terrible mistakes, based on your depression and your issues going on in your life, and you react irrationally in what you've done, you do need self-help and therapy. And that's not here."

In addition to Lopez's failure to take advantage of the rehabilitative programs available in prison, the Board found his parole plans deficient. His mother indicated that he "'will have a job,'" but the Board noted that he produced no written letter from either of two potential employers. Lopez told the Board he was interested in computers and planned to take computer classes in community college upon release. The Board noted, however, that those skills he had were not current.

The Board found that because Lopez had family support, his psychiatric report was positive, he did not have a criminal history other than the attempted murder, and he had not had any serious misconduct for 10 years, he did not require an additional 15, 10, or 7 years of incarceration. The Board concluded he needed an additional five years of incarceration and explained: "And the reasons for that are the commitment offense, the nature of the commitment offense, the mind process or the thought process that you went through at the time, the lack of self--help and therapy. You've been told many times by prior Panels to take care of business and get into those groups; you haven't. You don't have a relapse prevention plan for the community, what your stressors are, or how to react, places you can go other than your family; a number of things that you need to start taking care of while you're in custody, here. . . . You need to take control of your life and start working your way out of here. Just wandering along and staying out of trouble is not going to do it. You need to get active and take control of your life and be assertive with yourself and start changing your life."

The trial court found the Board "articulated a 'rational nexus' between the findings of lack of insight and [Lopez's] behavior while incarcerated provides 'some evidence,' although minimal, to support their conclusion that [Lopez] would be a danger to society if released on parole. However, the Board failed to provide ANY basis for denying parole for a five year term. The facts supporting the denial of parole in this case are minimal and do not meet the standard necessary to deny parole for five years." The petition was denied in part and granted in part, "in that the Board is directed to set a new parole hearing within 90 days of the finality of this decision as there is no basis for denying parole for five years."

DISCUSSION

The Attorney General urges us to reverse on three grounds: 1) Lopez's failure to challenge the five--year deferral decision in his petition for a writ of habeas corpus; 2) the Board's discretionary decision to reduce the statutory presumption of a 15--year term is not subject to judicial review where, as here, there is no procedural entitlement to yearly hearings (Pen. Code, § 3041.5, subd. (b)(3)(A)-(C)); and 3) the Board's decision is supported by the record. As stated above, because we find evidentiary support for the Board's decision to defer a parole suitability hearing for five years, we need not examine the Attorney General's two procedural challenges.

In In re Burns (2006) 136 Cal.App.4th 1318 (Burns),*fn1 we applied the same standard of judicial review to the separate decision whether to defer a parole suitability hearing as to the decision whether to deny parole. (Id. at p. 1327.) The same evidence can support both findings. We explained, "Because a hearing postponement 'may involve some of the same facts on which the [parole] unsuitability determination is based' [citation], we may consider the Board's discussion of parole unsuitability for the purpose of illuminating the Board's reasons justifying the postponement." (Id. at p. 1328.) We concluded that the record contained "some evidence" that the murder was committed with an exceptionally callous disregard for human suffering and life and that Burns had a history of unstable or tumultuous relationships with others. "Because the Board's decision had a factual basis and was supported by evidence in the record, Burns's habeas corpus petition should have been denied." (Id. at p. 1329.)

Burns provides an excellent template. Here, as in Burns, the Board's decision had a factual basis and was supported by "some evidence" in the record. As in Burns, the Board's decision was based, in part, on the atrocious and cruel nature of the crime. In a strange manifestation of depression and a need to get attention, Lopez hunted for a pedestrian victim for two days before running her down with his car. Yet, by his own admission, he had not participated in any type of counseling during his incarceration beyond one workshop in 2008, and he was not in therapy or any self-help programs. His failure to participate in therapy, self-help, or other rehabilitative programs to develop insight into the stressors that provoked him to behave irrationally and attempt to murder a random pedestrian was despite prior panels' recommendations that he take advantage of those opportunities.

Here the evidence supporting the Board's decision is far more compelling than the evidence we recounted in Burns. Not only did Lopez lack insight into the causative factors of his criminal behavior, but he also lacked a sufficient relapse prevention plan including verifiable employment. He presented no plan or ability to seek additional help beyond talking to his mother and grandmother. Indeed, he acknowledged that he had not developed a plan to discuss depression triggers or irrational reactions. While his mother vouched for his ability to get a job with her husband or his uncle in yard maintenance, neither potential employer provided evidence he was willing to hire Lopez. Thus, he presented little more than hopes and dreams of what his future might be like rather than tangible evidence of how he would avoid and control the issues that led to his homicidal attempt.

Lopez emphasizes that he was limited by his special needs, challenged by his weight, and compromised by his age and immaturity. He argues he has overcome these challenges, as demonstrated by his conduct in prison for the last few years. The Board certainly acknowledged his progress and recognized his potential for future release. But progress does not in and of itself mean he no longer poses a danger to society or that he can take control of his life, complete the difficult work of understanding the causes and motivations for his criminal behavior, develop vocational skills and a relapse prevention plan, and secure employment within a short time frame. Rather, for all the reasons articulated by the Board in both denying his release and delaying his next hearing, he needs considerably more time to alleviate the risk to public safety when he is released.

Lopez also denigrates the Board's reliance on his supposed "lack of insight." He analogizes his rehabilitation to the prisoners in In re Jackson (2011) 193 Cal.App.4th 1376 (Jackson) and In re Ryner (2011) 196 Cal.App.4th 533 (Ryner), but the analogies fall woefully short. Whereas Lopez has yet to proactively take charge of his life and develop the skills and a viable plan for a robust and productive future, Jackson and Ryner had. Their insight reflected the kind of growth and maturity Lopez has yet to achieve.

The Second District Court of Appeal provided an apt distillation of Jackson's progress. "While in prison Jackson has engaged in constructive activity and has improved himself. Jackson earned an associate degree from a community college and was an honor student. Jackson also took anger management and other self--help classes offered by the prison. Jackson received vocational training in optical manufacturing, worked as a metal fabricator, painter, assembler, forklift operator, and porter, and always received good work reports. In addition, in the 4 to 5 years prior to the December 3, 2008, parole hearing, Jackson became involved in Islamic studies. Jackson claims he has become a more spiritual person. The prison chaplain stated in a letter to the Board that Jackson had met the challenges he faced 'with dignity and resolve,' and that Jackson had become 'more respectful of life and aware of mortality.'" (Jackson, supra, 193 Cal.App.4th at p. 1386.) Beyond that, Jackson had realistic plans for release, including a job and extremely marketable skills.

The Board made a similar assessment of Ryner. "The Board found Ryner had enhanced his ability to function within the law upon release through participation in education programs. The Board noted Ryner's 'long and sustained participation in AA' and his involvement in anger management classes, his positive work record and vocational training. The Board stated that Ryner's probability of recidivism had been reduced because of maturation, personal growth, increased understanding and advanced age. The Board found that Ryner had realistic parole plans, including a job offer and family support. The Board noted Ryner's positive institutional behavior, including no disciplinary violations in 23 years and that he had never been disciplined for drugs or violence. The Board found that Ryner understood the nature and magnitude of the offense and had accepted responsibility for his criminal behavior and had shown a desire to change." (Ryner, supra, 196 Cal.App.4th at p. 540.)

The Governor reversed the Board's decision to grant Ryner parole because of his "lack of insight" into his past criminal conduct. (Ryner, supra, 196 Cal.App.4th at p. 545.) The Sixth Appellate District explained that "[e]vidence of lack of insight is indicative of a current dangerousness only if it shows a material deficiency in an inmate's understanding and acceptance of responsibility for the crime. [Fn. omitted.] To put it another way, the finding that an inmate lacks insight must be based on a factually identifiable deficiency in perception and understanding, a deficiency that involves an aspect of the criminal conduct or its causes that are significant, and the deficiency by itself or together with the commitment offense has some rational tendency to show that the inmate currently poses an unreasonable risk of danger." (Id. at pp. 548-549.) The undisputed evidence in Ryner showed that he had acknowledged his conduct, understood its causes, and demonstrated remorse. Thus, the court reversed the Governor's decision to deny Ryner parole.

The Board's decision in this case rests on a firmer foundation than the Governor's finding in Ryner. The Board based its decision on many factors, including Lopez's deficient parole release plan. Moreover, his failure to participate in therapy and self--help programs was evidence he continued to pose an unreasonable risk of danger and would for the next five years. By all accounts, Lopez has mental limitations. He suggests that because of those limitations he would not benefit from therapy or the kind of programs Jackson and Ryner completed. The Board, however, pointed out that the bizarre nature of his crime, coupled with his simple way of thinking, suggests that he does indeed need additional help in understanding the causes for his behavior and the strategies he should employ to avoid a violent response to stressors he will encounter upon release.

The Board and the trial court recognize that Lopez has made progress during his many years of incarceration. The psychological evaluations document that progress. But the Board is charged with the difficult task of determining whether an inmate continues to pose an unreasonable risk of danger to society. We must defer to the Board's assessment of the risk of danger where, as here, there is some evidence to support its determination. In this case, the Board determined that Lopez would continue to pose an unreasonable risk of danger for five years. While the trial court may have disagreed with the length of time the Board selected, it cannot substitute its subjective assessment for that of the Board. For the multitude of reasons identified by the Board and supported by the record documenting that Lopez remains dangerous, including his failure to seek help and engage in rehabilitative programs, we must reverse the trial court's partial grant of habeas corpus.

DISPOSITION

That portion of the trial court order granting in part Lopez's petition for a writ of habeas corpus, directing the Board to set a new parole hearing within 90 days of the finality of that decision, is reversed. The Board's September 29, 2009, decision deferring for five years Lopez's next parole suitability hearing is reinstated. Upon finality of this decision, the stay previously issued is vacated.

We concur: HULL , J. MURRAY , J.


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