Trial Court: Santa Clara County Superior Court No.: 113003 Trial Judge: The Honorable Rise Jones Pichon
The opinion of the court was delivered by: Marquez, J.
CERTIFIED FOR PUBLICATION
(Santa Clara County Super. Ct. No. 113003)
Gilbert Coronel is serving a 15-year to life sentence for his 1988 conviction by plea for the second degree murder of a 20-year-old woman. Coronel and his cohort surreptitiously induced the woman and her friend to ingest PCP in order to have sex with them, and the woman died of an overdose. In June 2010, after he had been incarcerated for some 22 years, the Board of Parole Hearings determined that Coronel was not yet suitable for parole, essentially finding that he was not forthcoming with information and had not "come to grips" with his crime. But the record reflects that during those 22 years, Coronel received just three violations for serious misconduct, the last one in 2003, and none of these violations involved violence or drugs. Additionally, in 2008, a psychologist noted that Coronel had "programmed exceptionally well," and his psychological evaluation that year generally rated his risk of future violence in the low range, though an evaluation in 2010, which the Board acknowledged to be procedurally flawed, elevated his threat level to the low-to-moderate range. The superior court granted Coronel's petition for writ of habeas corpus, vacating the Board's decision and directing it to conduct a new hearing "in accordance with due process."
Acting Warden William Knipp appeals from that order.*fn1 His sole argument for reversal is that because the Board found Coronel to be "deceitful," as the Warden puts it, the Board's unsuitability determination is judicially unassailable without regard to whether the record contains some evidence of current dangerousness. This contention lacks merit. Although the record here might give rise to a legitimate concern about Coronel's lack of candor on particular collateral matters discussed at the hearing, there is no articulated rational nexus between his asserted lack of credibility on these matters and the determination that he is currently dangerous. Nor does the record expose reasoning by the Board that would support such a nexus.
We accordingly conclude that the Board's decision to deny parole fails to meet due process standards, primarily because the Board failed to articulate a nexus between the factors cited in support of its decision to deny parole and a conclusion of current dangerousness, as compelled by In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and its companion case, In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis I). Moreover, after a review of the entire record, we are unable to ascertain any reasoning that illuminates a rational nexus between the factors cited by the Board in its decision and a conclusion that Coronel is currently dangerous. While a demonstrated lack of insight into the factors that led to the commitment offense could favor an unsuitability finding in a particular case, it is not enough for the Board to conclude, without either evidentiary support or a nexus to current dangerousness, that a prisoner has failed to "come to grips" with his crime or the factors that led to it.
We will affirm the trial court's grant of a writ of habeas corpus and remand the matter for a new suitability hearing to be conducted in accordance with due process.
Coronel was born in Oakland in 1963, the sixth of eight children. His parents divorced when he was 14 years old and his father returned to Mexico. Coronel's mother left him to live with his older siblings. He was placed in remedial classes as a child but dropped out of school sometime between the seventh and ninth grades and began working to support himself. Without parental support, Coronel "ran wild" and did not learn social skills before his incarceration. One of his brothers has spent time in prison, but Coronel, who was already in prison at that time, responded to a question during the Board hearing that he did not know the charge of which his brother was convicted other than it "had to do with money."
According to cognitive testing done when Coronel was in county jail before his sentencing in 1988, he was classified as "illiterate and was functioning in the Mild Range of Mental Retardation." Since his incarceration, Coronel has applied himself to "making substantial educational gains" and overcoming his learning disability, earning his GED in 1991 and "attending classes for college." A Test of Adult Basic Education (TABE) was administered in 1998 and Coronel received "a total [Grade Point Level of] 12.9." The "Developmental Disability Program record" in 2002 reported that he was categorized within "Normal Cognitive Functioning."
Coronel has no criminal history as a juvenile. As an adult, he had a misdemeanor conviction in 1983 for obstructing a police officer. He was also arrested on three occasions: in 1982 for assault with a deadly weapon--a bottle--but the charge was dismissed the following year;*fn2 in 1983 for trespassing, but that charge was dismissed as well; and in 1984 for using a false identification, which was also dismissed.
With respect to drug and alcohol use, Coronel began drinking alcohol at around 13 or 14 years old. In 2005, he described himself as an alcoholic and by then knew "that he c[ould not] drink again and plan[ned] to maintain his abstinence if paroled." He has also used marijuana and PCP and tried cocaine sometime just before his arrest for the life crime in 1986.
Coronel married once while in prison in the mid-1990's but divorced a year or two later. Documentation in his prison file indicates that he has no children, or at least is unaware of having fathered any.
II. The Commitment Offense and Prior Parole Hearings
On October 7, 1986, Coronel and his co-defendant, Raymond Macias, met up with two young women, 20-year old Darlene Sotelo and her friend Debby Galvan.*fn3 The men asked the women if they wanted to go to a party. The women accepted and got into Macias's car with him and Coronel; they were provided with sodas to drink. Debby Galvan testified at the preliminary hearing that the women drank from their drinks and began to feel dizzy and disoriented, as if they had been drugged. The four eventually wound up at Galvan's apartment in Sunnyvale. Coronel brought out some white powder, arranged four lines of the powder on a mirror or picture, and presented the women with what Coronel said was cocaine but was actually PCP. He lied about the drug because he and Macias intended the women to have reduced inhibitions or to become incapacitated by ingestion of the drug so the men could have sex with them. Each of the women ingested two lines of the drug, after which Macias and Sotelo went outside and got into a car to have sexual intercourse. Macias then left Sotelo in the car to get dressed. Meanwhile, Coronel and Galvan had sexual intercourse in Galvan's apartment. The men left the apartment sometime that night, with Galvan passed out in the apartment and Sotelo in the car outside.
A day or two later, Galvan awoke in her apartment and went outside. The manager of the apartment complex came in contact with her and observed that she appeared to be disoriented, intoxicated, and incoherent. Galvan's stepfather arrived with her brother and they took Galvan to see a doctor, who concluded that she was under the influence of a large dose of PCP and had been sexually assaulted. It took days or weeks for Galvan to return to normal. She could not remember very much about what had happened that night with Macias and Coronel but she told police and later testified at the preliminary hearing that she had been forced to consume the drug and after she did, Coronel had beaten her. A dentist who saw her two weeks later noted that she had chipped teeth that could have come "from blows to the mouth or the region around the face" within the prior six months to a year.
Sotelo was also not heard from after the night she and Galvan met up with Macias and Coronel. Three days later, on October 10, 1986, her partially clad, dead body was found in the car outside of Galvan's apartment where Sotelo had sex with Macias. It was determined by the medical examiner that she had died from a PCP overdose. Macias and Coronel did not learn of Sotelo's death until days later.
Police investigated Sotelo's death and came to the conclusion that Coronel and Macias had been involved and had on an earlier occasion tricked two other women, a mother and daughter, into taking PCP by telling them that the drug being ingested was cocaine. The men had sex with those women as well after the women became incapacitated from the drug. About a week after Sotelo's death, Macias and Coronel were arrested and charged with murder, two counts of rape by administration of a controlled substance, and two counts of selling or offering to sell a controlled substance.
Coronel maintained from the beginning that Galvan and Sotelo had taken the drug voluntarily, thinking it was cocaine as they had been led to believe. But he "admitted that he was 'selfish' and that he had 'drugged the girls to loosen them up,' so that he and [Macias] could have sex with them." He also denied having beaten either victim or "forcing sex" with Galvan. In terms of the victims having been beaten, the autopsy report for Sotelo noted only a small area of bruising on her right hip. And the doctor who examined Galvan days after the crime observed only a sprained thumb and two contusions the size of a thumb on the inside of her knee, with no other evidence of trauma, including around her face or jaw. But others who saw Galvan after the crime said that she appeared to have been beaten about the face or that her mouth was swollen.
After being bound over for trial, Coronel was convicted by plea of second degree murder on April 12, 1988. All other charges were dismissed with a "Harvey waiver to the extent that any parole board can consider the dismissed counts for purposes of setting parole dates." Coronel was sentenced on July 20, 1988, to 15 years to life in prison.*fn4
Coronel began his incarceration for the commitment offense in August 1988. He was first eligible for parole in October 1996. The June 2010 hearing that is the subject of this appeal was one of Coronel's subsequent parole hearings. It followed one in 2009, which also resulted in a denial. But Coronel challenged the 2009 decision by a prior petition for habeas corpus. The trial court granted relief, remanded the matter, and ordered a new hearing, which took place in June 2010, and led to the instant proceeding.
III. Coronel's Relationship to Debby Galvan and Andrew Galvan
Debby Galvan initiated contact with Coronel and sought to visit him in 2005 as part of a "victim/offender reconciliation process." The Visiting Questionnaire she filled out said she was "best friends" with Coronel and identified her minor son, Andrew Galvan, as Coronel's "godson" and her minor daughter as his "goddaughter." Her visitor's pass identified her and her son as Coronel's "fiance and son" and correspondence from Galvan's probation officer approving the visit identified Coronel as Galvan's boyfriend. After requesting to appear at two prior parole hearings but failing to show up, Galvan appeared as a witness at Coronel's parole hearing in 2005. On that occasion, she recanted her prior testimony that she had been forced to ingest drugs. She said she initially lied because she did not want her mother to know that she had taken drugs voluntarily. She had confided the truth about that night only to her stepfather. After his death, she wanted to set the record straight. She wrote two letters to the Board in 2008 to the same effect. She said that by then she had accepted Coronel's apologies and had forgiven him. She wanted to move on with her life and she supported his release.
In 2006, Coronel sought permission to communicate with a juvenile in CYA custody. The youth was identified as Andrew Galvan. His birth certificate indicates he was born on July 30, 1988, nearly two years after Coronel's arrest for the life crime, that his mother is Debby Galvan, and that his father is Romeo Hernandez. Yet Coronel submitted paperwork to request approval to correspond with Andrew Galvan, stating that he (Coronel) was the youth's father, notwithstanding the birth certificate showing Romeo Hernandez as the father and other prison documentation to the effect that Coronel had no children. When asked about this discrepancy during the 2010 Board hearing, Coronel said he may or may not be the father--he didn't know--but his counselor, not he, wrote this paternity information on the correspondence request form. Other than that, Coronel refused to discuss the matter at the hearing "because it doesn't involve the crime. [Andrew Galvan] doesn't involve this incident." And when asked by one of the commissioners whether Andrew Galvan was related to the victim, Debby Galvan, he said, "No."
Debby Galvan is apparently related to members of Nuestra Familia, a violent gang that operates both in and outside of prison. Over the course of Coronel's incarceration, he has been targeted by members of this gang because his crime involved Debby Galvan. He was relocated and placed in protective housing after having been attacked multiple times.
IV. Coronel's Behavior in Prison
During his 22 years of incarceration, Coronel has participated in self-help programming and other activities, and he worked as a porter and in various jobs in the kitchen, receiving satisfactory work reports. He also worked in vocational welding and received a certificate relative to the care and use of refrigerants. The self-help programming he received included, but is not limited to, the One Day at a Time program, Narcotics Anonymous activities, substance abuse groups, a stress management group, anger management groups, lifer's group, grief and loss group, rational behavior therapy group, and a Christian 12-step recovery program for which he received a laudatory chrono. He also received a laudatory chrono for participation in a program on Victim Impact, part of the Victim Awareness Offender program. He further participated in "extensive individual therapy sessions to address factors related to his life crime." A psychological evaluation in 2008 noted that Coronel has "programmed exceptionally well" and characterized him as "relatively exceptional" for the "obvious dedication he has made to institutional programs."
Coronel received three CDC form 115 rule violations*fn5 over the course of his incarceration, the last one in 2003 for failing to cooperate with an instructor. He received one in 2002 for disobeying a direct order, and one in 1992 for showing disrespect to prison staff.
Coronel also received eight CDC form 128A violations*fn6 for infractions or lesser misconduct, the last one in 2009 for refusing direction from staff. On this occasion, Coronel had been assigned to sweep in the dining room but was directed by a correctional officer to wipe tables when it unexpectedly became necessary to seat a group of inmates in the course of a shift. According to Coronel, he informed the officer that he was assigned to sweeping, not wiping, so he would first have to head in the opposite direction to exchange the broom for a rag, but the officer misunderstood his explanation as a refusal to wipe and wrote him up. The other minor violations included failure to comply with grooming standards in 2003; failure to report to work in 2003; failure to bring identification to class in 2003; failure to report to work in 2002; failure to report to work in 2000; unauthorized presence in class in 1999; and telephone misuse in 1989. He explained to the psychological evaluator in 2008 that many of his disciplinary infractions were related to his repeatedly being attacked in prison. He was never sure when attacks would come, leading to his being " 'distracted in (his) duties' or afraid to follow rules when doing so could increase his risk."
V. Psychological Assessments
As far as the record shows, Coronel was psychologically assessed six times during 22 years of incarceration. These evaluations can be characterized as generally showing progress over time in terms of Coronel's insight into his crime, its effect on others, and the level of risk posed if Coronel were to return to free society.
The most recent psychological evaluation in the record is dated June 23, 2010. Coronel's counsel objected to the Board's consideration of this report on the basis that Coronel did not receive sufficient notice that the evaluation would take place and on that date, he had a previously scheduled meeting with his attorney and was also being relocated within the prison. Coronel consequently declined to speak with the psychologist, who produced his report without an interview by simply relying on the contents of previous evaluations and Coronel's file.
The 2010 evaluation largely repeated what was contained in prior evaluations. Due to Coronel's refusal to be interviewed, the report did not address his current mental status, insight and self-assessment, updated drug and alcohol abuse history and ability to refrain from future use of these substances in free society. The report nevertheless diagnosed him--based on a review of his record alone--with "Polysubstance Dependence, With Psychological Dependence, in a Controlled Environment" on Axis I and, provisionally, with "Antisocial Personality Disorder" on Axis II. Similarly, based on a review of his record alone and not on any newly administered assessment instruments, he was rated as a low to moderate risk for future sexual offenses and the same for violence in the free community.
The previous psychological report was done in 2008. The evaluator noted that Coronel initially appeared anxious and that his answers to questions, though largely consistent with his record, were lacking in detail. She attributed this to his having been attacked on four previous occasions in two different prisons, leading to his being careful and guarded. But he was observed as being "grounded, mature, and forthright" and noted to have participated in "exceptional programming" over many years "with numerous laudatory chronos and some repeated programs." With regard to the crime, he expressed that he was "sorry" that Sotelo had died and understood that his crime was "selfish," explaining that he "didn't even think about other people then." He described his most significant change since his incarceration as having learned "to think about why [the crime] happened" and knowing "it will never happen again." He said of Sotelo that "[s]he was a person--a human being ...