Avalos v. Sisto

Full title: VICTOR AVALOS, Petitioner, v. D.K. SISTO, Warden, et al., Respondents

Court: United States District Court, E.D. California

Date published: Dec 21, 2007

No. CIV S-07-2324 LKK GGH P (E.D. Cal. Dec. 21, 2007)

Opinion

No. CIV S-07-2324 LKK GGH P.

December 21, 2007

ORDER

GREGORY HOLLOWS, Magistrate Judge

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 2006 parole denial decision from the Board of Parole Hearings.¹ Petitioner has paid the filing fee.

1 This matter proceeds only to the extent that petitioner challenges the 2006 Board decision denying him parole. To the extent petitioner seeks to assert as a ground for his challenge that his "contractual plea agreement" is being violated, however, he is challenging his underlying conviction and must proceed on such a claim by way of a petition within the jurisdiction of his conviction in San Diego County Superior Court, the Southern District of California. While both this Court and the United States District Court in the district where petitioner was convicted have jurisdiction, see Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), any and all witnesses and evidence necessary for the resolution of petitioner's application are more readily available in San Diego County. Id. at 499 n. 15; 28 U.S.C. § 2241(d). Moreover, petitioner cannot conflate a challenge to more than one judgment in one petition. See Rule 2(e) of the Rules Governing Section 2254 Cases.

Since petitioner may be entitled to the requested relief if the claimed violation of constitutional rights is proved, respondents will be directed to file a response to petitioner's application.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Respondents are directed to file a response to petitioner's application within thirty days from the date of this order. See Rule 4, Fed.R. Governing § 2254 Cases. An answer shall be accompanied by any and all transcripts or other documents relevant to the determination of the issues presented in the application. See Rule 5, Fed.R. Governing § 2254 Cases;

2. Petitioner's reply, if any, shall be filed and served within thirty days of service of an answer;

3. If the response to petitioner's application is a motion, petitioner's opposition or statement of non-opposition shall be filed and served within thirty days of service of the motion, and respondents' reply, if any, shall be filed within fifteen days thereafter; and

4. The Clerk of the Court shall serve a copy of this order together with a copy of petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on Michael Patrick Farrell, Senior Assistant Attorney General. PETITIONSan Diego CountySuperior Court11-14-9120 years to life with the possibility of parole.Second degree murder; personal use of firearm.San Diego Superior CourtHabeas CorpusDue process violations based on breach of pleaagreement and parole denial based on insufficient evidence.Denied.3-14-07California Court of Appeal, Fourth Appellate Dist.Habeas corpusSame as first petition.Denied.7-20-07notconciselybrieflyfactsand factsCAUTION: In order to proceed in the federal court, you must ordinarily first exhaust your available state courtremedies as to each ground on which you request action by the federal court. If you fail to set forth all grounds in thispetition, you may be barred from presenting additional grounds at a later date.you should raise in this petition all available groundsSeepage 5-1 incorporated by reference.brieflySee attached pages 5-1 to 5-12incorporated by reference.VIOLATION OF DUE PROCESS BY PAROLE DENIAL BASED ONSeebrieflySee attached pages 5-1 to 5-12

United States District Court District EASTERN Name Prisoner No. Case No. VICTOR AVALOS H-18640 Place of Confinement CSP-SOLANO P.O. Box 4000 Vacaville, CA 95696-4000 Name of Petitioner (include name under which convicted) Name of Respondent (authorized person having custody of petitioner) VICTOR AVALOS v. D.K. SISTO, Warden, STATE OF CALIFORNIA, BOARD OF PAROLE HEARINGS The Attorney General of the State of: CALIFORNIA 1. Name and location of court which entered the judgment of conviction under attack 2. Date of judgment of conviction 3. Length of sentence 4. Nature of offense involved (all counts) ___________________________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________________________ 5. What was your plea? (Check one) (a) Not guilty (b) Guilty (c) Nolo contendere If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, give details: ___________________________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________________________ 6. If you pleaded not guilty, what kind of trial did you have? (Check one) (a) Jury (b) Judge only 7. Did you testify at the trial? Yes No 8. Did you appeal from the judgment of conviction? Yes No 9. If you did appeal, answer the following: (a) Name of court _________________________________________________________________________________________________________________ (b) Result ________________________________________________________________________________________________________________________ (c) Date of result and citation, if known _________________________________________________________________________________________ (d) Grounds raised ________________________________________________________________________________________________________________ _______________________________________________________________________________________________________________________________ (e) If you sought further review of the decision on appeal by a higher state court, please answer the following: (1) Name of court _____________________________________________________________________________________________________________ (2) Result ____________________________________________________________________________________________________________________ _______________________________________________________________________________________________________________________________ (3) Date of result and citation, if known _____________________________________________________________________________________ (4) Grounds raised ____________________________________________________________________________________________________________ _______________________________________________________________________________________________________________________________ (f) If you filed a petition for certiorari in the United States Supreme Court, please answer the following with respect to each direct appeal: (1) Name of court _____________________________________________________________________________________________________________ (2) Result ____________________________________________________________________________________________________________________ _______________________________________________________________________________________________________________________________ (3) Date of result and citation, if known _____________________________________________________________________________________ (4) Grounds raised ____________________________________________________________________________________________________________ _______________________________________________________________________________________________________________________________ 10. Other than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions, applications, or motions with respect to this judgment in any court, state or federal? Yes No 11. If your answer to 10 was "yes," give the following information: (a) (1) Name of court (2) Nature of proceeding __________________________________________________________________________________________________________________________ (3) Grounds raised __________________________________________________________________________________________________________________________ __________________________________________________________________________________________________________________________ __________________________________________________________________________________________________________________________ (4) Did you receive an evidentiary hearing on your petition, application or motion? Yes No (5) Result (6) Date of result (b) As to any second petition, application or motion give the same information: (1) Name of court (2) Nature of proceeding __________________________________________________________________________________________________________________________ (3) Grounds raised __________________________________________________________________________________________________________________________ __________________________________________________________________________________________________________________________ __________________________________________________________________________________________________________________________ __________________________________________________________________________________________________________________________ (4) Did you receive an evidentiary hearing on your petition, application or motion? Yes No (5) Result (6) Date of result (c) Did you appeal to the highest state court having jurisdiction the result of action taken on any petition, application or motion? (1) First petition, etc. Yes No (2) Second petition, Yes No (d) If you did appeal from the adverse action on any petition, application or motion, explain briefly why you did not: ______________________________________________________________________________________________________________________________ ______________________________________________________________________________________________________________________________ ______________________________________________________________________________________________________________________________ 12. State every ground on which you claim that you are being held unlawfully. Summarize the supporting each ground. If necessary, you may attach pages stating additional grounds supporting same. For your information, the following is a list of the most frequently raised grounds for relief in habeas corpus proceedings. Each statement preceded by a letter constitutes a separate ground for possible relief. You may raise any grounds which you may have other than those listed if you have exhausted your state court remedies with respect to them. However, (relating to this conviction) on which you base your allegations that you are being held in custody unlawfully. Do not check any of these listed grounds. If you select one or more of these grounds for relief, you must allege facts. The petition will be returned to you if you merely check (a) through (j) or any one of these grounds. (a) Conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily with understanding of the nature of the charge and the consequences of the plea. (b) Conviction obtained by use of coerced confession. (c) Conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure. (d) Conviction obtained by use of evidence obtained pursuant to an unlawful arrest. (e) Conviction obtained by a violation of the privilege against self-incrimination. (f) Conviction obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant. (g) Conviction obtained by a violation of the protection against double jeopardy. (h) Conviction obtained by action of a grand or petit jury which was unconstitutionally selected and impaneled. (i) Denial of effective assistance of counsel. (j) Denial of right of appeal. A. Ground one: VIOLATION OF DUE PROCESS BY BREACH OF PLEA. attached _____________________________________________________________________________________________________________________ Supporting FACTS (state without citing cases or law) _________________________________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________ B. Ground two: INSUFFICIENT EVIDENCE. attached page 5-1 incorporated by reference. _________________________________________________________________________________________________________________________________ Supporting FACTS (state without citing cases or law): incorporated by reference. _________________________________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________

GROUNDS FOR RELIEF A.

THE STATE OF CALIFORNIA AND THE BOARD OF PAROLE HEARINGS VIOLATED PETITIONER'S CONTRACTUAL PLEA AGREEMENT AND HIS RIGHT TO DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT AND THE CALIFORNIA STATE LAW BY REFUSING TO SET HIS PAROLE RELEASE DATE BASED ON THE CIRCUMSTANCES OF THE COMMITMENT OFFENSE AND OTHER FACTS KNOWN AT THE TIME OF THE AGREEMENT.

B.

THE BOARD OF PAROLE HEARINGS' DECISION TO DELAY SETTING PETITIONER'S PAROLE RELEASE DATE WAS NOT SUPPORTED BY ANY RELEVANT, RELIABLE EVIDENCE IN THE RECORD THAT PETITIONER CURRENTLY POSES AN UNREASONABLE RISK OF DANGER TO SOCIETY IN VIOLATION OF PETITIONER'S RIGHT TO DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT.

SUPPORTING FACTS STATEMENT OF FACTS

A. Commitment Offense And Plea Agreement

The factual account of the commitment offense found in the Probation Officer's Report is the factual basis for the plea agreement and reflects the factual findings of the court. The Probation Report reflects that Petitioner and the victim had known each other approximately two years when the victim drove to Petitioner's home in National City and they had dinner and drink in Tijuana. (Probation Officer's Report attached hereto as Exhibit A at p. 1.)

The Probation Report further states:

[Petitioner] stated that while they were drinking in Mexico the victim had been depressed and suicidal about family problems; that her father was in a residential drug treatment program and her grandmother had recently passed away. The conversation continued while they were at Pepper Park where they talked for an estimated thirty minutes. During the conversation, the decedent removed a black pistol from her purse and told [Petitioner] that she wished to go to heaven and be with her grandmother. Her religious beliefs prevented her from committing suicide and she wanted the defendant to shoot her. He stated that they had argued about her ending her life for several minutes and she convinced him that if he did not kill her she would see no alternative but to take her own life. She told him to take her purse and a video camera which was in the truck so that it would look like a robbery.

The defendant took the pistol and got into the rear of the truck and the victim positioned herself in the center of the front seat looking forward. [Petitioner] told detectives that the gun was cocked and loaded when he took it and stated that he would not have known how to fire it otherwise.

He pointed the weapon at her and fired one shot into the back of her head, and she slumped in the seat. He covered her head with a towel and exited the truck. He left the park on foot, taking her purse and shoes, left the decedent's purse and shoes in a trash can. He rode the trolley to a stop near his home and dropped the camcorder into a dumpster, after which he went home.

(Id., at 2.)

The above factual account matches the statement of the District Attorney (DA) submitted to the trial court. (Statement by District Attorney Under Penal Code Section 1203.01 attached hereto as Exhibit B at pp. 2-3.)

Petitioner pled guilty to second degree murder (Pen. Code § 187/189) and a personal use of firearm enhancement (Pen. Code § 12022.5(a)) and was sentenced to 20 years to life in prison with the possibility of parole. (Change of Plea attached hereto as Exhibit C; Plea of Guilty/No Contest — Felony attached hereto as Exhibit D; Abstract of Judgment attached hereto as Exhibit E.)

B. Initial Parole Consideration Hearing

Petitioner became eligible for parole release on March 20, 2004 and had his initial parole consideration hearing in accordance with Penal Code section 3041.5 on March 9, 2004. (Life Prisoner Evaluation Report attached hereto as Exhibit F at 1.)

At the initial parole hearing the Board delayed setting Petitioner's parole release date for three year. The panel based its decision on 1) the gravity of the commitment offense because it was especially violent and the motive was trivial or inexplicable; 2) the psychologist who evaluated Petitioner concluded that his potential for violence was unpredictable; and 3) Petitioner lacks realistic parole plans because he did not have an acceptable employment plan. The panel found that Petitioner need to continue in self-help "in order to discuss, understand and cope with stress in a non-destructive manner." The panel commended Petitioner for being disciplinary free since 1993, completing two vocational trades and participating in the Prison Outreach Program. (Decision, 4/9/03 attached hereto as Exhibit G.)

C. Challenged 2006 Parole Consideration Hearing

Petitioner had his first subsequent parole consideration hearing on August 17, 2006. After covering the circumstances of the commitment offense, the Panel established that Petitioner's parole plans were to reside with his parents in National City and obtain work as soon as possible. The panel then read into the record several letters from Petitioner's family and friends who expressed their support for him and testified as to his character, his remorse, his growth during the course of his incarceration, and each of their relationships with him. (Subsequent Parole Consideration Hearing attached hereto as Exhibit H at pp. 19-26.)

The panel noted that Petitioner had been housed in a level-II medium security facility since 1999 and that he has a classification score of 0 with mandatory score 19 points due to being a lifer. (Id., at 26; Life Prisoner Post-Conviction Progress Report, January 2000 attached hereto as Exhibit I at p. 3; Life Prisoner Evaluation Report, February 2003 Calendar attached hereto as Exhibit J at p. 3.)

The panel then covered Petitioner incarceration during the period from his initial hearing until the present hearing. Petitioner had completed vocational training for cabinet making and as an optcian, as well as continuing education to upgrade his skills as an optician. He received positive work evaluation from his job in the prison optical lab. He also participated in numerous self-improvement and self-help programs, including anger management, conflict resolution and others. It was also determined that Petitioner had been disciplinary free since 1992 when he received his only disciplinary report for failure to report. (Exhibit H 27-33, 35.)

The deputy commissioner then asked Petitioner if he believes he poses a risk of danger to the safety of people in society. (Id. at 36.) Petitioner responded as follows:

Well, if we are going by — as far as suitability, my records speak for itself, okay? As far as the crime, I can't put a number or a time on what my sentence should be. What I did was terrible, you know. But if we are going by suitability, again, I could only say I'm no longer that person, you know. I have matured, you know, and I've learned a lot as far as you know, within myself. Say if I — this incident ever happening — no, I feel confident enough to say that no, this will not never repeat itself ever.

(Id., at 36:21-37:3.)

The panel then covered the psychological report prepared for the initial hearing in 2003. Under Psychiatric and Medical History, the Psychologist stated that Petitioner "does not have a history of homicidal behavior. There is no other record of violence either in or out of prison." the psychologist also stated that Petitioner had a psychiatric diagnosis. (Psychological Evaluation for the Board of Prison Terms, 2-13-03 attached hereto as Exhibit K at p. 2.)

The psychologist noted that Petitioner functioned in a normal capacity in every respect. "He showed sadness and remorse when speaking about his crime." Petitioner was given a Global Assessment Functioning score of 80 based on being employed for six years and his ability to function within the prison. (Id., at 2-3; Exhibit B at 37-38.)

Regarding Petitioner's substance abuse history, the psychologist stated:

Although the inmate has been diagnosed in the past as being polysubstance dependent, this apparently was an error. The inmate said that he experienced with drugs at the age of 16 and 17, but never was a habitual user. He did enjoy drinks with dinner on occasion. His life crime involved neither alcohol nor drugs.

(Exhibit K at 2.)

Regarding the causative factors contributing to Petitioner involvement in the instant offense the psychologist related that Petitioner was raised be a very strict father who severely limited his interaction with the outside world. (Id. at 1.) The psychologist further stated stated:

The inmate's judgment and anticipation of consequences was good considering his origins. His range of experience is limited, coming from a restrictive background directly to prison. This naivete led to tragic consequences in his life crime.

(Id., at 3.)

The psychologist covered the facts of the crime as stated in the Probation Officer's Report and drew the following conclusion:

The inmate's fundamentalist Catholic origins could reasonably have led him to conclude that euthanasia might be a lessor sin than suicide. In a peculiar way, he saw himself as a rescuer. The inmate said he felt a great sense of relief when he was put in jail. He clearly held himself accountable for his part in the crime.

(Id., at 4.)

The psychologist's final assessment was as follows:

The inmate has no prior crime history. There is no prior pattern of violence.

This inmate's crime essentially came out of the blue. At the beginning of that evening it is doubtful that the end could have been foreseen. Although this scenario seems unlikely to be reproduced, the inmate's lack of sophistication could leave him vulnerable to other external pressures to act. Therefore, this inmate's potential for violence is unpredictable.

(Id., at 4.)

The panel also considered Petitioner only other psychological evaluation from 1996. The conclusion related to Petitioner's violence potential was that "the inmate's violence potential outside a controlled setting in the past was considered to have been average and is considered to have decreased." (Id., at 38-39.)

During the hearing, the panel questioned Petitioner about his participation in Alcoholics Anonymous (AA). Petitioner stated that he was not an alcoholic and had only participated in AA to meet the Board's requirement for self-help, but had stopped because the psychologist who evaluated him in 2003 told him he should not attend AA because alcohol wasn't a contributing factor to the crime and he had never been disciplined for alcohol while in prison. (Exhibit H at 33-34.)

Deputy Commission Harmon told him that alcohol was a factor in his crime because he had been drinking the night of the offense. (Id., at 34.) The presiding commissioner later suggested that Petitioner needed to participate in AA. (Id., at 41.)

Deputy Commissioner Harmon then asked several questions suggestive of his opinion that Petitioner and the victim were involved romantically and his true motive for committing the instant offense was jealousy. The exchange went as follows:

DEPUTY COMMISSIONER HARMON: Now I'm shooting from the hip and I'm probably off-base, but you know when I reviewed this information in the short period that I've really had, it seems to me as if you and this young lady had more than a friendship relationship, that if I understand these documents correctly, she was dating at least another man.

PETITIONER: Yes, she was. I was — we were just friends.

DEPUTY COMMISSIONER HARMON: But you guys have been going out steadily for nine months; haven't you?

PETITIONER: Well — I mean, we went out like every other weekend, you know. She invited me to dinner on May of my birthday — the week of my birthday. She invited me to Las Vegas with some friends, you know —

DEPUTY COMMISSIONER HARMON: Doesn't it seem to be a little more than a friendship, not like girlfriend-to-girlfriend, but —

PETITIONER: Well, if she had feelings toward me, you know — I mean, we'd always say that when we went anywhere, we were just friends.

DEPUTY COMMISSIONER HARMON: Weren't you — were you jealous that she was dating other people?

PETITIONER: No, not at all.

DEPUTY COMMISSIONER HARMON: Do you guys ever argue about that?

PETITIONER: No. I mean, like I said, we were just friends. I mean, I — I recall when I was being detained, they kept referring as my girlfriend and these rumors started (inaudible). No, we're not boyfriend or girlfriend.

DEPUTY COMMISSIONER HARMON: Okay. You are not on trial here. My last question, okay? Why not let her kill herself? Then you wouldn't be in prison.

PETITIONER: Again, at that time I wasn't thinking — I mean, that's no excuse. I mean I could've — when she gave me the gun, I could've walked away and, you know, take the gun with me and left her there, you know. There are many scenarios I could have done and I didn't. I failed. And I made a mistake.

DEPUTY COMMISSIONER HARMON: Well, it sounds to me as if I don't want to be your friend.

(Id., at 41:25-43:14.)

The deputy district attorney representing the People of the State of California (DA) then asked if he knew about crisis intervention programs existed at the time he committed the crime, to which Petitioner responded that he did. The DA then asked what effect the victim's death had on him, to which Petitioner responded that his conscience bothered him immediately after committing the crime, which caused him to confess to the police. (Id., at 43-45.)

Petitioner's attorney then asked him if the victim had talked to him about suicide before and if he had experience being around people who were depressed at the time that he knew the victim. Petitioner answered that she had not discussed suicide with him, and he did not have any experience with depressed people, but that he has read a lot about the subject since. (Id., at 45-46.) The attorney then asked him if he saw himself as a rescuer, to which he answered that he saw himself more as someone to ease the victim's pain. (Id., at 46.) When asked what he would do today if the same situation arose, Petitioner responded that he would not take her life, but would talk to her and get her help because life was too precious to be taken for granted. (Id.)

The DA then opposed Petitioner's parole on behalf of the State of California with the following statement:

We do feel the release of this inmate is an unknown (inaudible) and would pose an unreasonable risk of danger to society. I believe for a fact that he acted upon his desire and went ahead and used this weapon in an intentional manner to commit a homicide. It shows a certain defect in judgment and character that cannot be corrected merely by serving time in prison. And I would indicate that it would take a longer period of time under closer observation, greater therapy, greater insight to change this sort of thinking or behavior in any meaningful way in such that the Board can say without repeat, again in an uncontrolled setting, free from incarceration and with the stressors of society of conduct. And I would simply submit that the fact of the crime itself, the fact that the homicide speaks for itself and will continue to do so for quite some time. For that reason, we will respectfully oppose parole.

(Id., at 46-47.)

Petitioner's attorney highlighted the reasons why he is suitable for parole, and Petitioner apologized to the victim's parents for his actions and asked their forgiveness. (Id., at 49-50.)

The victim's parents stated the impact the loss of their daughter has had on them, and the mother read a letter from the victim's sister. (Id., at 50-55.)

The Board then announced its decision to find Petitioner for three years. The panel relied foremost on the circumstances of the commitment offense and stated the following:

The panel noted that the offense was carried out in an especially cruel manner. the victim, Alicia Adame, 23, was shot and killed with a 9mm semi-automatic. the offense was carried out in a very dispassionate manner. You were in a position of trust. You indicated today that didn't believe she would shoot herself because of religious beliefs and she was shot anyway. The motive for this, the record before us today is — the only thing that the Panel could conclude is this is a very inexplicable crime. Conclusions were drawn from the statement of facts that was prepared for the Board Calendar.

(Id., at 56.)

The panel noted and considered that Petitioner had no prior record either as a juvenile or an adult. (Id., at 57.) The panel noted with respect to Petitioner institutional behavior that he had not sufficiently participated in self-help programs, needed to address drug and alcohol issues, and had three minor misconducts in 1993 and one serious misconduct for failure to report in 1992. (Id., at 58.) The panel considered the 2003 psychological report a negative factor because the doctor indicated that Petitioner lack of sophistication could leave him vulnerable to other external pressures to act and that his potential for violence is unpredictable. (Id.) The panel found Petitioner's parole plans acceptable. (Id., at 58-59.) Finally, the Board noted the DA's opposition to parole and considered the victim's next of kin's statements. (Id., 59.)

In a separate decision, the panel denied parole for the next three years in order that it could have a longer period of observation, and Petitioner could participate in additional self-help for drug and alcohol use and attain a longer period of disciplinary-free behavior. The panel also order a new psychological report for the next hearing. (Id. at 59-60.)

The Board's decision became final on December 15, 2006. (Ibid., at p. 61:24.) brieflybrieflybrieflyAll claims have been

C. Ground three: ___________________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________ Supporting FACTS (state without citing cases or law): ____________________________________________________________ _________________________________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________ D. Ground four: ____________________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________ Supporting FACTS (state without citing cases or law): ____________________________________________________________ _________________________________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________________ 13. If any of the grounds listed in 12A, B, C, and D were not previously presented in any other court, state or federal, state what grounds were not so presented, and give your reasons for not presenting them: fairly presented to the state courts. __________________________________________________________________________________________________________________________________ __________________________________________________________________________________________________________________________________ __________________________________________________________________________________________________________________________________ 14. Do you have any petition or appeal now pending in any court, either state or federal, as to the judgment under attack? Yes No 15. Give the name and address, if known, of each attorney who represented you in the following stages of the judgment attacked herein: (a) At preliminary hearing _______________________________________________________________________________________________________ ______________________________________________________________________________________________________________________________ (b) At arraignment and plea ______________________________________________________________________________________________________ ______________________________________________________________________________________________________________________________ (c) At trial _____________________________________________________________________________________________________________________ ______________________________________________________________________________________________________________________________ (d) At sentencing ________________________________________________________________________________________________________________ ______________________________________________________________________________________________________________________________ (e) On appeal ____________________________________________________________________________________________________________________ ______________________________________________________________________________________________________________________________ (f) In any post-conviction proceeding ____________________________________________________________________________________________ ______________________________________________________________________________________________________________________________ (g) On appeal from any adverse ruling in a post-conviction proceeding ____________________________________________________________ ______________________________________________________________________________________________________________________________ 16. Were you sentenced on more than one count of an indictment, or on more than one indictment, in the same court and at the same time? Yes No 17. Do you have any future sentence to serve after you complete the sentence imposed by the judgment under attack? Yes No (a) If so, give name and location of court which imposed sentence to be served in the future: ____________________________________ ______________________________________________________________________________________________________________________________ (b) Give date and length of the above sentence: __________________________________________________________________________________ ______________________________________________________________________________________________________________________________ (c) Have you filed, or do you contemplate filing, any petition attacking the judgment which imposed the sentence to be served in the future? Yes No Wherefore, petitioner prays that the Court grant petitioner relief to which he may be entitled in this proceeding. See attached PRAYER FOR RELIEF incorporated by reference. ________________________________________________________ Signature of Attorney (if any) I declare under penalty of perjury that the foregoing is true and correct. Executed ________________________________________ ________________________________________________________ (date) Sinature of Petitioner

PRAYER FOR RELIEF

Petitioner is without remedy save for habeas corpus. Accordingly, the court should:

1. Issue a writ of habeas corpus;

2. Issue an order to show cause;

3. Declare the rights of the parties;

4. Order the warden of CSP-Solano to release petitioner Victor Avalos immediately;

5. Appoint counsel or award reasonable attorney fees; and

6. Grant any and all other relief deemed appropriate.

Victor Avalos H-18640 CSP-Solano 20-P-1-L P.O. Box 4000 Vacaville, CA 95696-4000 In Pro Se IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA VICTOR AVALOS, ) Case No. 2:07-CV-2324 LKK GGH HC ) Petitioner, ) MEMORANDUM OF POINTS AND ) AUTHORITIES IN SUPPORT OF vs. ) PETITION FOR WRIT OF HABEAS ) CORPUS ) D. K. SISTO, Warden, et. al., ) ) Respondents. ) _______________________________)

JURISDICTION

Title 28, United States Code, section 2254 is the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, when the petitioner is not challenging his underlying state court conviction, but a parole and sentencing decision and breach of plea agreement. White v. Lambert, 370 F.3d 1002, 1006-1010 (9th Cir. 2004); Buckley v. Terhune, 441 F.3d 688, 694 (9th Cir. 2006). Under § 2254, a district court shall entertain an application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court and in violation of the Constitution of the United States. See 28 U.S.C. § 2254(a). Further, the adjudication of the claim must result in a decision by the state courts that is contrary to, involved an unreasonable application of clearly established Federal law as determined by the Supreme Court of the United States or an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d).

Clearly established federal law is defined by the holdings of the United States Supreme Court in effect at the time California adjudicated Petitioner's claims. Williams v. Taylor, 529 U.S. 362, 412 (2000). Circuit law is persuasive authority for purposes of determining whether a state decision is an unreasonable application of Supreme Court jurisprudence. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003); Duhaime v. Ducharme, 200 F.3d 587, 600-601 (9th Cir. 1999). When a reviewing state court's summary denial of a claim where a state court does not explain its reasoning, this court "looks through" the summary denial to the last reasoned state court decision. Ylst v. Nunnemaker, 501 U.S. 797, 803-804 (1991). The decision of the Court of Appeal is the last reasoned decision, and therefore provides the basis for this court review. Id.

United States Code section 2244(d)(1)(D) requires that a state prisoner file his federal habeas corpus petition within one year of "the date on which the impediment to filing an application created by State action in violation of the Constitution . . . is removed if the applicant was prevented from filing by such state action." The limitation period is tolled during the pendency of a "properly filed application for state postconviction or other collateral review with respect to the pertinent judgment or claim." 28 U.S.C. § 2244(d)(2). Habeas corpus petitions filed in California state courts are "pending" for the entire period from the date the petition is filed in the superior court until its final disposition in the state supreme court. Carey v. Saffold, 536 U.S. 214, 217, 223 (2002); Saffold v. Carey, 312 F.3d 1031, 1034-1036 (9th Cir. 2002).

The impediment to filing was removed when the Board's August 17, 2006 decision became final 120 days later, on December 15, 2006. Pen. Code § 3041(b). The limitations period under 28 U.S.C. § 2244 began to run the following day. Patterson v. Stewart, 251 F.3d 1243, 1244-1246 (9th Cir. 2001). Petitioner filed a petition for writ of habeas corpus in the superior court on January 22, 2007. Pet. Ex. M. Accordingly, only 38 days of the statute of limitations period had run and the remainder was then tolled until October 11, 2007, the day after the Supreme Court denied the petition. Petition Exhibit J. Petitioner has 327 days from that date in which to file a timely federal habeas corpus petition. Therefore, Petitioner has until September 3, 2008 to file a timely federal habeas corpus petition challenging the Board's decision to deny Petitioner's release on parole.

I.THE STATE OF CALIFORNIA AND THE BOARD OF PAROLE HEARINGS VIOLATED PETITIONER'S CONTRACTUAL PLEA AGREEMENT AND HIS RIGHT TO DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT AND THE CALIFORNIA CONSTITUTION BY REFUSING TO SET HIS PAROLE RELEASE DATE BASED ON THE CIRCUMSTANCES OF THE COMMITMENT OFFENSE AND OTHER FACTS KNOWN AT THE TIME OF THE AGREEMENT.

A. Petitioner Has A Right To Enforce His Contractual Plea Agreement Under The Fourteenth Amendment And State Law.

A plea agreement is a contract between the State and the defendant, which the defendant's due process rights conferred by the Fourteenth Amendment allow him to enforce. (People v. Shelton, (2006) 37 Cal. 4th 759, 767 (Shelton); Santabello v. New York (1971) 404 U.S. 257, 261-262 (Santabello); Brown v. Poole (9th Cir. 2003) 337 F.3d 1155, 1159 (Brown).) As such, under California law, a plea agreement "is interpreted according to general contract principles." (Shelton, supra, 37 Cal. 4th at 767; Buckley v. Terhune, (9th Cir. 2006) 441 F.3d 688, 694 (Buckley).)

In California, all contracts, whether public or private, are to be interpreted by the same rules. (Cal. Civil Code § 1635; See also Shelton, supra, 37 Cal. 4th at 766-767; People v. Toscano (2004) 124 Cal. App. 4th 340, 344 (Toscano).) A court must first look to the plain meaning of the agreement's language. (Cal. Civil Code §§ 1638, 1644.) If the language in the contract is ambiguous, "it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it. (Cal. Civil Code § 1649.) The inquiry considers not the subjective belief of the promisor but, rather the objectively reasonable expectation of the promisee, (Bank of the West v. Superior Court, (1992) 2 Cal. 4th 1254, 1265; Badir v. Bank of Am. (1998) 67 Cal. App. 4th 779, 802 fn.9 ["Although the intent of the parties determines the meaning of the contract, the relevant intent is objective — that is, the objective intent as evidenced by the words of the instrument, not a party's subjective intent." (internal quotation marks and citation omitted.).].) Courts look to the "objective manifestations of the parties intent . . ." (Shelton, 37 Cal. 4th at 767.) If after this second inquiry the ambiguity remains, "the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist." (Cal. Civil Code § 1654;Toscano, 124 Cal. App. 4th at p. 345 ("ambiguities [in a plea agreement] are construed in favor of the defendant.") See alsoBuckley, 440 F.3d at 223.)

"It is a well-accepted principle of contract interpretation that all applicable laws and ordinances in existence when the agreement is made become a part thereof as fully as if incorporated by reference." (Dameshghi v. Texaco Refining Manufacturing, (1992) 3 Cal. App. 4th 1292, 1279 (quotation marks and citations omitted.).) "The parties are presumed to have existing law in mind when they executed their agreement." (Swenson v. File, (1970) 3 Cal. 3d 389, 394.) "This is also true of valid regulations having the force and effect of law."(Rehart v. Clark, (9th Cir. 1971) 448 F.2d 170, 173.) The Board has established the Matrix of Base Terms as the sentencing range for second degree murder pursuant to its rule-making authority delegated by Penal Code section 3041(a). Therefore, the Matrix of Base Terms for Second Degree Murder (Cal. Code of Regs., tit 15 § 2403(c).) is part of Petitioner's contract. (Associated Beverage Co. v. Board of Equalization, (1990) 224 Cal. App. 3d 192, 201 citing Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 401; United States v. Booker, (2005) 543 U.S. 220, 235.)

B. The State Of California Violated Petitioner's Plea Agreement And His Right To Due Process Of Law.

"The process of plea bargaining contemplates an agreement negotiated by the People and the defendant and approved by the court. Pursuant to this procedure the defendant agrees to plead guilty [and forfeit his Fifth and Sixth Amendment rights] in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged. This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment by the People's acceptance of a plea to a lessor offense than that charged either in degree or kind." (People v. Orin, (1975) 13 Cal.3d 937, 942.) California law requires that, when a defendant bargains for a lessor degree of offense, the degree of the crime must be established. (Cal. Pen. Code § 1192.) "Upon a plea of guilty to an information or indictment accusing the defendant of a crime or attempted crime divided into degrees when consented to by the prosecuting attorney in open court and approved by the court, such plea may specify the degree thereof and in such event the defendant cannot be punished for a higher degree of the crime or attempted crime than the degree specified." (Cal. Pen. Code § 1192.1.)

The court or the prosecuting attorney had the opportunity at any time prior to sentencing withdraw approval of the plea agreement. (Cal. Pen. Code § 1192.4; People v. Stringham (1988) 206 Cal. App. 3d 184, 194.) When deciding whether to accept a plea agreement, the court must determine whether the agreement is in the best interest of society. (Ibid.,; People v. Woodard, (1982) 131 Cal. App. 3d 107, 110.) The "interests of society" include input from the victim's family and considerations of public safety among others. (Ibid.)

1. The State of California Abused Its Discretion Under Petitioner's Plea Agreement When The Board Used Factors Known At The Time Of Contract And Accepted By The Parties To Deny Him The Benefit Of His Contract.

Because Petitioner's sentence under the plea agreement is an indeterminate sentence, the plea agreement is a discretionary contract, granting the State of California discretion through the Board of Parole Hearings in setting the term of imprisonment and conditions of release. (In re Dannenberg (2005) 34 Cal. 4th 1061, 1082 quoting In re Rosenkrantz, (2002) 29 Cal. 4th 616, 655; In re Scott (2004) 119 Cal. App. 4th 871, 884.) Under California law, the covenant of good faith and fair dealing serves to guarantee "that neither party will do anything to frustrate the right of the other to receive the benefits of the agreement." (Kuhn v. Dept. of General Services (1994) 22 Cal. App. 4th 1627, 1638-39; Locke v. Warner Brothers, Inc. (1997) 57 Cal. App. 4th 354, 363-64 citing Perdue v. Crocker Nat'l Bank (1985) 38 Cal.3d 913, 923 (where a contract confers one party with discretionary power effecting the rights of the other, a duty is imposed to exercise that discretion in good faith and in accordance with fair dealing.).)

Clearly by accepting the plea agreement, the objectively reasonable intent and understanding of all parties was that Petitioner would serve a term of imprisonment established by the Matrix of Base Terms for Second Degree Murder (Cal. Code of Regs., tit. 15, § 2403(c).) minus post-conviction credits for good conduct (Cal. Code of Regs., tit. 15, § 2410.) and be paroled. It is equally as clear that all parties were aware of the specific facts, gravity and severity of the commitment offense. (See Exhibits A B.) Also known was Petitioner's lack of sophistication. (Exhibit A at 7.) With this full knowledge both the court and the People induced Petitioner to waive his constitutional right to a trial and accepted his plea to second degree murder. Now that petitioner has upheld his end of the bargain by serving his minimum term he is entitled to have his term of confinement established according to the Matrix of Base Terms for Second Degree Murder.

The circumstances of petitioner's crime would place him in Category II — B. (Prior relationship with the victim: Victim was involved in a personal relationship with prisoner which contributed to the motivation for the act resulting in death; Direct: Death was almost immediate or resulted at least partially from contributing factors from the victim; e.g., the victim goaded the prisoner.), therefore the sentencing range under his plea agreement would be 17 to 19 years. (Cal. Code of Regs., tit. 15, § 2403(c)(II)(B).)

The State is using facts related to the convicted offense that where known at the time the agreement was made, and which it had agreed justified a second degree murder conviction and sentence of 15 years to life with the possibility of parole to continually delay Petitioner's release on parole. This nullifies any benefit to petitioner in the plea agreement, thereby invalidating the contract. (United States v. De la Fuente (9th Cir. 1993) 8 F.3d 1333, 1340 (It's unfair for the government to illicit defendant's plea for no benefit.); Santabello, 404 U.S. at p. 261.)

The reciprocal nature of a plea bargain agreement mandates that either party to the agreement be entitled to enforce the agreement in a situation where the party is deprived of the benefit of the bargain. Failure to hold a party to the terms of his bargain would undermine the integrity of the judicial process. (People v. Vargas (2001) 91 Cal. App. 4th 506, 533-534 quoting People v. Collins (1996) 45 Cal. App. 4th 849, 863-64.) Under Santabello, petitioner has a due process right to enforce the provisions of his plea agreement. (Santabello, 404 U.S. at pp. 261-62; Buckley, 441 F. 3d at 699.)

C. The Appropriate Remedy Is For The Board Of Parole Hearings To Set Petitioner's Term Of Confinement Pursuant To The Matrix of Base Terms For Second Degree Murder.

As previously established, 19 years is the maximum term of imprisonment under the terms of the plea agreement. Petitioner began his confinement on March 21, 1994 (Exhibit H at 1.), therefore his maximum release date without conduct credits would be March 21, 2013. Petitioner is entitled to four months of conduct credit for each year of incarceration that he is disciplinary free. (Cal. Code of Regs., tit. 15 § 2410.) Petitioner has been incarcerated for 12 years, 11 of which have been disciplinary free, therefore he is entitled to 44 months of post conviction conduct credits. After adjusting for conduct credits, his release date should currently be July 21, 2009 or sooner. The Board's 2006 decision extends Petitioner's term to at least August 17, 2009, thereby violating Petitioner's plea agreement.

The only two remedies available to Petitioner for the breach of his plea agreement are rescission of the plea and specific performance. (Brown, 337 F.3d at p. 1161; Toscano, 124 Cal. App. 4th at 345 citing People v. Kaanehe (1977) 19 Cal.3d 1, 14.) Because Petitioner has served well beyond his minimum term and nearly his full sentence, rescission of the plea agreement cannot repair the harm done to him, therefore specific performance is the only viable remedy. (Buckley, 441 F.3d at 699; Brown, 337 F.3d at p. 1161.)

II.THE BOARD OF PAROLE HEARINGS' DECISION TO DELAY SETTING PETITIONER'S PAROLE RELEASE DATE WAS NOT SUPPORTED BY ANY RELEVANT, RELIABLE EVIDENCE IN THE RECORD THAT HE CURRENTLY POSES AN UNREASONABLE RISK OF DANGER TO SOCIETY IN VIOLATION OF PETITIONER'S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENT AND THE CALIFORNIA CONSTITUTION.

A. Petitioner Has A Liberty Interest In Parole Release Protected By The Due Process Clause of the Fifth And Fourteenth Amendments And The California Constitution.

In California, a person sentenced to an indeterminate sentence of life with the possibility of parole must appear before a parole board panel, have a hearing analogous to a sentencing hearing by a trial court and must have his parole release date set upon completion of a statutorily determined period of ineligibility unless, based upon certain factors defined by statute, he is determined to pose an unreasonable risk of danger to society or threat to the public safety, (Penal Code § 3041; In re Rosenkrantz, supra, 29 Cal. 4th at 653-654; In re Roberts, (2005) 36 Cal. 4th 575, 587-588; In re Scott, (2005) 133 Cal. App. 4th 573, 590-591 (Scott II).)

The statutory scheme of Penal Code section 3041 "'creates a presumption that parole release will be granted' unless the statutorily defined determinations are made." (McQuillion v. Duncan, (9th Cir. 2002) 306 F.3d 895, 902 quoting Board of Pardons v. Allen, (1987) 482 U.S. 369, 378; In re Rosenkrantz, (2002) 29 Cal, 4th 616, 682-683.) This creates a liberty interest in parole release protected by the Due Process Clause of the Fifth and Fourteenth Amendments and the California Constitution. (Sass v. California Bd. of Prison Terms, (9th Cir. 2006) 461 F.3d 1023, 1026-1027; In re Rosenkrantz, supra, 29 Cal. 4th at 661.)

"Once it is determined that due process applies, the question remains what process is due." (Morrissey v. Brewer, (1972) 408 U.S. 471, 481 (citations and quotations omitted.).) "It is axiomatic that due process 'is flexible and calls for such procedural protections as the particular situation demands.'" (Greenholtz v. Nebraska Penal Inmates, (1979) 442 U.S. 1, 12 quoting Morrissey v. Brewer, supra, 408 U.S. at 484.) "The function of legal process, as that concept is embodied in the at 595; In re Elkins (2006) 144 Cal. App. 4th 475, 498-502;Rosenkrantz v. Marshall, (C.D. Cal. 2006) 444 F.Supp.2d 1063, 1081 ("in some realistic way, the facts of the unchanged circumstance must indicate a present danger to the community if released, and this can only be assessed not in a vacuum, after four or five eligibility hearings, but counterpoised against the backdrop of prison events.").) The predictive value of commitment offense and other unchanging factors can become very questionable over a long period of time, particularly when the prisoner demonstrates rehabilitation over an extended period of time. (Scott II, supra, 133 Cal. App. 4th at 595; In re Elkins, supra, 144 Cal. App. 4th at 500-502; Rosenkrantz v. Marshall, supra, 444 F.Supp.2d at 1084.)

B. Petitioner's Commitment Offense Is Not Relevant, Reliable Evidence That Petitioner Is Currently An Unreasonable Risk Of Danger To Society.

When considering the threshold question of whether the gravity of the commitment offense can be considered as evidence that a prisoner's release may pose an unreasonable risk of danger to society, a reviewing court must first determine whether the crime was "particularly egregious". (In re Dannenberg, (2005) 34 Cal. 4th 1061, 1095.) This means "that the violence and viciousness of the inmate's crime must be more than, minimally necessary to convict him of the offense for which he is confined." (Id., citing In re Rosenkrantz, supra 29 Cal. 4th at 683.) "Therefore, an unsuitability determination must be predicated on some evidence that the particular circumstances of the prisoner's crime-indicated exceptional callousness and cruelty with trivial provocation, and thus suggested he remains a danger to public safety." (Scott II, 133 Cal. App. 4th at 598 quoting In re Dannenberg, supra, 34 Cal. 4th at 1098 (Internal quotation marks omitted.).)

Penal Code section 3041(a) requires the Board to establish criteria for the setting of parole release dates. The Legislature's use of the mandatory term "shall" in Penal Code section 3041(a), when directing the Board to establish criteria for setting of terms of imprisonment for various offenses carrying indeterminate sentences based on the gravity of those offenses imposes a mandatory duty on the Board to do so. (Booker,supra, 543 U.S. at 233-234.) In response to this legislative mandate, the Board has promulgated the Matrix of Base Terms for Second Degree Murder (Matrix). (Cal. Code of Regs., tit. 15, § 2403(c).) Penal Code Section 3041(a) also imposes a mandatory duty upon the Board to follow those criteria. (Pen. Code § 3041(a); Booker, supra, 543 U.S. at 233-234.) Therefore, when determining whether Petitioner's crime is particularly egregious, the Matrix must be consulted to determine whether his offense presents any factors that are not adequately considered by the Matrix. (Booker, supra, 543 U.S. at 234.)

Petitioner and the victim were friends. It was because of this friendship that the victim confided in Petitioner about her desire to die. It was also the basis for her asking him to assist her. This corresponds with Category II of the Matrix. (Cal. Code of Regs., tit. 15, § 2403(c)(II).) All the evidence reflects that the victim died immediately of a single gunshot wound and that the victim was adamant about her desire that Petitioner assist her in committing suicide. This corresponds with Category B of the Matrix. (Cal. Code of Regs., tit. 15, § 2403(c)(B).) Because the Matrix accounts for all of the circumstances of Petitioner's offense the Matrix is mandatory as to Petitioner and the sentencing range for his offense is 17 to 19 years. (Id.; Booker, supra, 543 U.S. 235.)

The Board relied heavily on the gravity of the commitment offense to delay setting Petitioner's release date. (Exhibit H at pp. 56-57.) Petitioner shot the victim one time in the head and she died immediately. (Id., at 57.) This is the absolute minimum amount of violence and viciousness that was required for Petitioner commit the instant offense. Therefore, the Board's reliance on the gravity of the offense to deny Petitioner's parole violated his right to due process because there is no evidence that Petitioner committed acts more vicious or violent than minimally necessary to convict him of second degree murder. (In re Dannenberg, supra, 34 Cal. 4th at 1095.)

In relying on the gravity of the offense, the Board relied on several factors that Petitioner was never charged with, nor did he admit as part of his plea agreement. These include the "heinous, atrocious or cruel" factor, which under California law is a special circumstance which must be charged and proven beyond a reasonable doubt in order to extinguish person's liberty interest in parole. (Pen. Code § 190.2(a)(14).) Accordingly, the Board's use of this circumstance, which was never charged or proven beyond a reasonable doubt violates his right to due process. (Apprendi v. New Jersey, (2000) 530 U.S. 466, 490, 494-495.)

The Board relied on two factors under California Code of Regulation, title 15 section 2402, subdivision (c)(1), the crime "was very dispassionate" (§ 2402(c)(1)(B).) and the motive was "very inexplicable" (§ 2402(c)(1)(E).) in support of its reliance on the gravity of the offense. (Exhibit H at 56.) Under the regulations the first factor only applies to a crime if it is "carried out in a dispassionate and calculated manner, such as an execution-style murder." (Cal. Code of Regs., tit. 15 § 2402(c)(1)(B).) The Board's reliance on this violates Petitioner's due process for a number of reasons. First, premeditation is an element of first degree murder which must charged and proven beyond a reasonable doubt in order heighten the stigma and increase the punishment for Petitioner's offense, (Pen. Code § 189; Apprendi, supra, 530 U.S. at 495; In re Ramirez (2001) Cal. App. 4th 549, 570.)

Further, this finding is absolutely contrary to the finding of the trial court which stated that the "manner in which the offense was carried out reflects a lack of sophistication on defendant's part." (Exhibit A at 7.) The record also reflects that petitioner and the victim argued about her desire to die before Petitioner agreed to assist her, and he did so to ease her pain. (Exhibit A at 3; Exhibit H at 46:6-8; Exhibit K at 4.) Accordingly, the instant offense is neither dispassionate nor calculated, and bears no resemblance to other dispassionate and calculated second-degree murders, therefore the Board's use of this factor is arbitrary and violates his due process. (Scott II, supra, 133 Cal. App. 4th at 598.)

The Board's reliance on its perception that Petitioner's motive was inexplicable also violated his due process. "Motive" is synonymous with "intent." (Apprendi, supra, 530 U.S. 466, 492, fn. 17.) "The defendant's intent in committing a crime is perhaps as close as one might come to a core criminal offense 'element'," therefore reliance on Petitioner's motivation to enhance his punishment violates due process. (Id. at 493.) Petitioner's motivation for the crime was clearly articulated in the probation report and in the DA's statement submitted to the sentencing court. (Exhibit A at 3; Exhibit B at 2.) Since the motive is not inexplicable, there is no evidence to support the Board reliance on this factor, which violates Petitioner's due process. (Scott II, 133 Cal. App. 4th at 590-591; Biggs v. Terhune, supra, 334 F.3d at 915.)

The Board's broad discretion is not a license to recharacterize Petitioner's offense as one of a higher degree than determined by the trial court during the legal process. (In re Ramirez, supra, 94 Cal. App. 4th 569, fn. 8.; Rosenkrantz v. Marshall, supra, 444 F.Supp.2d at 1081.) Accordingly, the Board reliance on the same facts which were used to sustain his conviction and create his liberty interest in parole to deprive him of the interest is arbitrary and violates due process. (Id.; In re Rosenkrantz, supra, 29 Cal. 4th at 683.)

The Board also relied on the psychologist's inability to predict how Petitioner might react if the same or a similar situation where to arise as that of the instant offense. (Exhibit H at 58; Exhibit K at 4.) The psychologist admits and the trial court agrees that the circumstances of the commitment offense were not foreseeable and highly unlikely to recur. (Exhibit A at 7; Exhibit K at 4.) The psychologist's inability to predict future events does not amount to evidence that Petitioner poses an unreasonable risk of danger to society. It is well recognized that predictions of future violent behavior are exceedingly unreliable. (Barefoot v. Estelle (1983) 463 U.S. 880, 898; Brooke Group Ltd. v. Brown Williamson Tobacco Corp, (1993) 509 U.S. 209, 242.) It is also well recognized that psychologists are particularly prone to over-predictions by predicting that a person may commit an act of violence when those events never do take place. (Id.)

Because of the unreliable nature of violence potential predictions, and the speculative nature of the non-prediction at issue, the reliability of this evidence is insufficient to extend Petitioner's incarceration. (Id.; Biggs v. Terhune, supra, 334 F.3d at 915.)

The psychologist's concern was Petitioner's lack of sophistication due mainly to his limited range of experience in coming from a restrictive background directly to prison. (Exhibit K (DEVELOPMENTAL HISTORY at p. 1), (Insight at p. 3), p. 4.) The psychologist determined that Petitioner functioned very well within the prison setting. (Exhibit K at 3 (GAF score of 80).) For the Board to rely on this lack of experience, which can only be gained if he is released effectively eviscerates his liberty interest in parole. This can only be done through the procedures proscribed by law under a standard of proof of Beyond a reasonable doubt. (Pen. Code §§ 2960 et seq.; Cal. Code of Regs., tit. 15, §§ 2513, 2635-2649;People v. Burnick, supra, 14 Cal.3d at 324-325 citing In re Winship (1970) 397 U.S. 358, 368.)

C. The Board Failed To Adequately Consider Evidence That Shows Petitioner Is A Low Risk Of Danger To Society.

Any decision of the Board denying parole must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious. (Scott II, supra, 133 Cal. App. 4th at 590 quoting In re Rosenkrantz, supra, 29 Cal. 4th at 677;Board of Pardons v. Allen, supra, 482 U.S. at 378-379.) Failure of the Board to adequately consider factors relevant to Petitioner's suitability for parole release violate his due process of law. (Scott II, supra, 133 Cal. App. 4th at 596; Board of Pardon v. Allen, supra, 482 U.S. at 378-379.)

California Code of Regulations, title 15, section 2402, subdivision (b) requires the panel to consider all relevant, reliable information, including "any conditions of treatment or control" and "use of special condition under which the prisoner may safely be released to the community." (See also Terhune v. Superior Court (1998) 65 Cal. App. 4th 864, 874.) "These conditions . . . may govern a parolee's residence, his associates or living companions, his travel, his use of intoxicants, and other aspects of life." (Id. citing People v. Burgener (1986) 41 Cal.3d 505, 531-532; Morrissey v. Brewer,supra, 408 U.S. at 492; Cal. Code of Regs., tit. 15, § 2513.)

In addition, Petitioner has life time parole, and therefore remains in the legal custody of the Department of Corrections and Rehabilitation and is subject at any time to be taken back to prison if he violates any of the conditions of his parole. (Exhibit D at 1; Terhune v. Superior Court, supra, 65 Cal. App. 4th at 874.) This provides society with ample protection to reasonably address any legitimate public safety concern the Board may have. The Board's failure to consider the use of parole conditions to address its public safety concerns arbitrarily deprives Petitioner of his liberty interest in parole and violates his due process. (Scott I, supra, 119 Cal. App. 4th at 897; Biggs, supra, 334 F.3d at 916.)

The Board's regulations also require it to consider a number of factors which, if present, would show that Petitioner presents a low risk of danger to society. (Id.; Cal. Code of Regs., tit. 15, § 2402(d).) The Board did consider the fact that Petitioner has no prior record either as an adult or a juvenile. (Exhibit H at 57; Cal. Code of Regs., tit. 15, § 2402(d)(1) (6).) The panel also considered that Petitioner has a marketable skill and realistic parole plans. (Id., at 58-59; § 2402(d)(8).)

The panel failed to consider several factors bearing significantly on his suitability for parole release. First, the Board failed to consider that Petitioner has a stable social history evidenced by the stable relationships he has maintained with family and friends, many of whom submitted letter of support for consideration by the Board. (Cal. Code of Regs., tit. 15, § 2402(d)(2); Exhibit H at 20-26.)

A significant factor showing that Petitioner is suitable for parole is that he has demonstrated a great deal of remorse for his crime. (Cal. Code of Regs., tit. 15, § 2402(d)(3); Exhibit A at 4, 7; Exhibit H at 49-50; Exhibit K at 4.) The Board clearly did not consider this factor because the panel clearly implied that he was lying about why he committed the offense, which would belie any genuine remorse. (Exhibit H at 41-43.) The same is true of Petitioner's motivation for the crime. Petitioner committed the instant offense as a result of significant stress related to the provocation of the victim and the pressure placed upon him by her. (Cal. Code of Regs., tit. 15, § 2402(d)(4); Exhibit A at 7.) The circumstance of the crime was highly unusual and unlikely to recur. (Id.; Exhibit K at 4.)

The final factor of great relevance to the Board's decision in Petitioner's behavior during incarceration. (Cal. Code of Regs., tit. 15, § 2402(c)(6), (d)(9); Greenholtz, supra, 442 U.S. at 15.) The Board has relied the immutable facts of the commitment offense to delay setting his parole release date twice now. (Exhibit G at 1-2; Exhibit H at 56-57.) "Reliance on an immutable factor without regard to, or consideration of, subsequent circumstances may be unfair, run contrary to the rehabilitative goals espoused by the prison system, and result in a due process violation." (Biggs v. Terhune, supra, 334 F.3d at 917; Irons v. Carey, (9th Cir. 2007) 479 F.3d 658, 665.)

The Supreme Court has recognized that "[t]he behavior of an inmate during confinement is critical in the sense that it reflects the degree to which the inmate is prepared to adjust to parole release." (Greenholtz, supra, 442 U.S. at 15.) Petitioner has had the lowest possible classification score since 1999. (Exhibit H at 26; Exhibit I at 3.) Petitioner's classification score designates his public safety threat as determined by a committee of correctional professionals who evaluate his custody needs based on public safety and security concerns. (Cal. Code of Regs., tit. 15, §§ 3375(b) (d), 3375.3(b), 3375.4(a)-(b), 3375.5(a)-(b).) This score is based on several factors, including the gravity of the commitment offense, past criminal record, social factors and behavior during incarceration. (Id.)

Petitioner has never committed a violent act during 15 years of incarceration in "caldron of prison life," has completed a significant amount of vocational and education training, and self-help therapy. (Exhibit H at 26-36; Exhibit f at 3; Exhibit I; Exhibit K at 3-4.) This significant evidence that the Board was required to consider. (Cal. Code of Regs., tit. 15, § 2402(d)(9); In re Smith, supra, 114 Cal. App. 4th at 372;Greenholtz, supra, 442 U.S. at 15.)

The Board construed Petitioner institutional behavior as a negative factor due to Petitioner's lack of participation in AA and non-serious misconduct which occurred nearly 15 years ago when Petitioner first came to prison. (Exhibit H at 58, 60.) The Board's determinations that alcohol was a contributing factor to the commitment offense and that Petitioner currently has drug and alcohol issue which require therapy are arbitrary because they contradict the determination of the psychologist who evaluated Petitioner, and there is absolutely no evidence that Petitioner has used drugs or alcohol during the past 15 years of incarceration. (In re Smith, supra, 114 Cal. App. 4th at 369; See Exhibit K at 2.)

Petitioner has spent 15 years in the "caldron of prison life" and despite the hardships of prison, he has repeatedly and consistently demonstrated he is not dangerous or violent, therefore the commitment offense is no longer a reliable indicator of his public safety risk. (In re Elkins, supra, 144 Cal. App. 4th at 500-502; Rosenkrantz v. Marshall, supra, 444 F.Supp.2d at 1084.) The Board's continued reliance on these unchanging and long past circumstances without regard for subsequent events runs contrary to the rehabilitative goals espoused by the prison system, is arbitrary and violates Petitioner's due process. (Id.; Greenholtz, supra, 442 U.S. at 15; Biggs, supra, 334 F.3d at 917.)

CONCLUSION

For above stated reasons the relief requested in the petition should be granted.

EXHIBITS IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS

EXHIBIT A

CONVICTED OFCODEFENDANT(S)PRE PLEA BARGAINPrisonVICTIM INFORMATIONAlicia Adamesee belowXVICTIM'S COMMENTS ADULT SERVICES PROBATION OFFICER'S REPORT THE PEOPLE OF THE STATE OF CALIFORNIA CRT. NO. DEPT. JUDGE CR124268 SC24 EDWARDS v. DA FILE NO. ATTORNEY B8765201 PUB DEF VICTOR H. AVALOS HEARING DATE/TIME PROB CASE NO. 12-13-91 1:30 A723913 PROBATION OFFICER PO TEL. NO. J BOESE 498-2115 ADDRESS TEL. NO. BIRTHPLACE 418 G ST 477-2845 SAN DIEGO NATIONAL CITY CA 91950 BIRTH DATE AGE SEX RACE HT WT EYES HAIR 5-22-69 22 M H 5'06" 165 BRN BLK SOC. SEC. NO. DRIVER'S LIC NO. OTHER ID DATA 554 39 7248 DATE OFFENSE COMMITTED DATE CONVICTED HOW STATUS 6-19-91 11-4-91 PG SD2E INVESTIGATING ARRESTING AGENCY DATE INFO/COMPLAINT FILED SDSO CONT. NO. NCPD 6-25-91 91173004243 FBI NO. CII NO. SDPD NO. SDSO NO. 09814433 91147594B : 187 PC 2nd degree admits 12022.5(a) PC : na : The probation officer is not in receipt of a plea bargain in this matter. District attorney file materials indicate, and the defendant states, that the defendant pled as indicated and has apparently stipulated to an upper term for the personal firearm use enhancement. RECOMMENDATION: : Victim Name ; Loss/Total Restitution ; Victim Notified of Hearing (Yes) _____ (No) : (Also his/her address if restitution is appro- priate): Victim Alicia Adame is survived by her mother, Herminia Adame, of Oceanside. The Probation Officer has noticed Herminia Adame of the time and place of today's hearing as well as her rights concerning these proceedings.

THE OFFENSE:

SOURCES OF INFORMATION for this section

DISTRICT ATTORNEY'S FILE

Shortly before midnight on 6-19-91, two officers from the San Diego Harbor Patrol were on foot patrol in the parking lot of Pepper Park in National City, near the boat launching ramps. They were informing citizens that the park was closing for the night.

They approached a pickup truck which was parked in the lot and found that blood was dripping to the ground from the driver's door. Inside the truck they found 23 year old Alicia Adame slumped to her side behind the wheel. Those officers summoned the National City police.

Investigation determined that the victim had died of a single gunshot wound to the back of her head. The bullet had exited her skull through the right eye and had gone through the windshield of the truck. A camper shell was mounted on the back of the truck, and a 9mm shell casing was found in the camper area. There was on open crawl space between the camper area and the cab of the truck.

The truck, a Chevrolet S10, was registered to the decedent. Detectives contacted her family in Oceanside and confirmed her identity. The victim's mother and sister told detectives that the victim had last been seen in the company of the defendant and that they had planned to attend the Del Mar fair the day before. The decedent and the victim had known each other about two years. Detectives also learned that during the morning of 6-19-91 Herminia Adame had discovered property missing from the family home. That property included earrings and a 9mm semi-automatic pistol.

The defendant was contacted the following day by detectives. He told them that he had met the victim in 1989 when both were in the Job Corps. They had seen each other regularly over the past nine months. On the evening of 6-18-91 she had driven to the defendant's National City home and the two had visited friends in San Ysidro. They had gone to dinner at a Tijuana restaurant and had driven to Rosarito Beach where they went to a hotel bar. They were feeling the effects of their drinking, and they elected to sleep in the defendant's car overnight. At about 4:00 a.m. they returned to National City. Near the defendant's home they met two individuals who the defendant knew to be friends of Alicia's, and she left the defendant's home with them at about 5:30 a.m. He told detectives that he had not seen the victim again.

Mr. Avalos agreed to take a polygraph exam and did so on 6-21-91. The results of that exam indicated that he was being deceptive. Later that same day he was interviewed again, and following advisement of rights the defendant told detectives that he had shot the decedent at her request. He indicated that his earlier statements had been truthful up to the point where he and the victim had returned from Mexico. When they returned to his house, the victim asked him to drive with her somewhere where they could talk. She drove her truck to the Pepper Park area with the defendant as a passenger.

He stated that while they were drinking in Mexico the victim had been depressed and suicidal about family problems; that her father was in a residential drug treatment program and her grandmother had recently passed away. The conversation continued while they were at Pepper Park where they talked for an estimated thirty minutes. During the conversation, the decedent removed a black pistol from her purse and told Avalos that she wished to go to heaven and be with her grandmother. Her religious beliefs prevented her from committing suicide and she wanted the defendant to shoot her. He stated that they had argued about her ending her life for several minutes and she convinced him that if he did not kill her she would see no alternative but to take her own life. She told him to take her purse and a video camera which was in the truck so that it would look like a robbery.

The defendant took the pistol and got into the rear of the truck and the victim positioned herself in the center of the front seat looking forward. Avalos told detectives that the gun was cocked and loaded when he took it and stated that he would not have known how to fire it otherwise.

He pointed the weapon at her and fired one shot into the back of her head, and she slumped in the seat. He covered her head with a towel and exited the truck. He left the park on foot, taking her purse and shoes, the camera and the pistol. As he walked, he disposed of the gun, and he left the decedent's purse and shoes in a trash can. He rode the trolley to a stop near his home and dropped the camcorder into a dumpster, after which he went home. DEFENDANT'S STATEMENT:

SOURCES OF INFORMATION for this section

PROBATION OFFICER'S INTERVIEW WITH DEFENDANT

The defendant did not submit a written statement or a probation application. He was seen at the central jail, where the facts and circumstances of the crime were discussed.

Mr. Avalos indicated that his statements to homicide detectives were accurate and that he committed the crime as described. He and Alicia Adame had spent the previous evening in Mexico where they had gone to a series of bars and they eventually slept in the car prior to returning to the United States. The victim had been very depressed for a long time about her father's drug involvement and was further upset because her grandmother had passed away about a month earlier. He advised that he had known her for about two years and that depression was common. He is unaware of any previous suicide threats or attempts.

Since his arrest he has been evaluated by a psychologist who initially did not believe that he had committed the crime as described. He feels that had he not confessed, he could not have been successfully prosecuted and he feels that he wished to be caught and so turned himself in. He indicated that he did not anticipate that he would be charged with murder based upon his actions.

Mr. Avalos understands that he will not be granted probation and he is prepared to serve the prison term involved because he committed the crime and he "needs to pay". He is hopeful that he can remain in the area for visiting purposes since his parents are elderly and infirm. They visit as much as possible and he describes them as supportive. CRIMINAL HISTORY:

SOURCES OF INFORMATION for this section

CII AND LOCAL COMPUTER CHECKS

CII and NCIC records indicate that the defendant is unknown to those agencies. The instant offense represents the defendant's only booking into the county jail. SENTENCING DATA: 187 PC is an 1168 PC indeterminate crime which carries a term of 15 years to life. The court is required to select a term of three, four or five years for the enhancement admitted under 12022.5(a) PC. The Probation Officer will suggest that imposition of the upper term would be indicated based upon the following citations:

Rule 412(a): All parties have stipulated to a five year term for the 12022.5(a) PC enhancement.

EVALUATION:

Rule 413(a)(1):

Defendant is X absolutely/___presumptively ineligible per1203.06 PC (code section).Circumstances Supporting a Grant of ProbationXXXXX2211+XlifeXXCircumstances Supporting a Denial of Probation:XXXXX

: Rule 414(a)(7): Crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur. Rule 414(a)(8): The manner in which the offense was carried out reflects a lack of sophistication on defendant's part. Rule 414(b)(1): Defendant has no prior record, or___an insig- nificant record. Rule 414(b)(4): Defendant is years old, has completed years of education; is mentally alert; has ties to the community over the last (years/months); has___employable skills, ___is working or___ is seeking gainful employment. Rule 414(b)(5): Imprisonment will seriously affect the defendant and/or his family. Rule 414(b)(7): Defendant appears remorseful. Rule 414(a)(2): Defendant was___armed with/ used a weapon. Rule 414(a)(4): Defendant inflictedphysical/___emotional injury. Rule 414(a)(6): Defendant was an active participant in the crime. Discussion:

Victor Avalos appears for probation hearing and sentencing following conviction by plea of 187 PC, a felony. He has further admitted to personal use of a firearm in this crime, with the result that he faces an absolute bar to probation consideration under 1203.06 PC

Mr. Avalos shot and killed an acquaintance at what he describes as her request. He describes her as depressed and suicidal, and believed that she would have killed herself if necessary although she had religious prohibitions against taking her own life. At the present time, the court has little discretion but to commit the defendant to the Department of Corrections for the term prescribed by law. Absent any contact from the victim's family the probation officer will make no recommendations concerning restitution to be paid to the survivors. CUSTODY DATA:

At the time of sentencing, PC 1191.3 requires the Court to make an oral statement that statutory law permits the award of conduct and work-time credits up to one-third or one-half of the sentence that is imposed by the Court; that the award and calculation of credits is determined by the Sheriff in cases involving imprisonment in county jails; by the Department of Corrections in cases involving imprisonment in the state prison; and that credit for presentence incarceration served by the defendant is calculated by the Probation Department under current state law.Date Confined Date Released Place Custody Days88

6-21-91 12-13-91 (custody) jail 176 4019 PC 264 RECOMMENDATION: That probation be denied and the defendant be committed to the Department of Corrections for the term of 20 years to life with credit for 176 days actual time served and 88 days 4019 PC credits, a total of 264 days. Further, that the defendant pay a restitution fine in the amount of $5000 pursuant to 13967 G.C..Prison Term BreakdownCrime Suggested Prison Term Term Stay5 yr : Recommended Recommended 187 PC 2nd degree 15 years to life 15 yrs-life 0 12022.5(a) PC upper-5 yr 0 20 yrs to life Respectfully submitted, CECIL H. STEPPE Chief Probation Officer By: JAMES B BOESE Deputy Probation Officer Approved _______________ BETTY JETER, Supervisor I have read and considered the foregoing report

JUDGE OF THE SUPERIOR COURT

That the defendant be referred to the Department of Revenue and Recovery to determine his/her ability to pay, in full or in part, for presentence investigation and report, probation supervision costs, and attorney fees.

EXHIBIT B

EDWIN L. MILLER, JR. District Attorney MICHAEL A. CANZONERI Deputy District Attorney 7002 County Courthouse San Diego, California 92101 531-4237 Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO THE PEOPLE OF THE STATE OF CALIFORNIA, No. CR 124268 DA B87652 Plaintiff, H 18640 v. STATEMENT BY DISTRICT ATTORNEY UNDER PENAL VICTOR HERNANDEZ AVALOS, CODE SECTION 1203.01 Defendant. The following is furnished for the assistance of the Department of Corrections:

CRIMES FOR WHICH THE DEFENDANT WAS CONVICTED AND SENTENCED

VICTOR AVALOS was convicted of second degree murder, in violation of Penal Code sections 187/189, and an enhancement of personally using a firearm pursuant to Penal Code section 12022.5(a). He was sentenced to 20 years to life in state prison on December 13, 1991, by the Honorable Raymond Edwards.

HISTORY OF THE CRIME AND WEAPONS USED

VICTOR AVALOS used a 9 mm semi-automatic handgun to murder the 23-year-old victim, Alice Adame.

AVALOS and the victim met each other at a Job Corps facility two years before the murder. In the six months prior to the killing, AVALOS and the victim saw each other, socially, often three or more times per week. AVALOS was a regular visitor to the victim's parents' home, where he became close to the victim's teenage brother and sister.

In the early evening hours of June 18, 1991, the victim and AVALOS ate dinner with the victim's family. AVALOS and the victim left that evening and, according to AVALOS, entered Mexico to eat and have some drinks. AVALOS stated that the victim seemed depressed, and that she did not respond to his efforts to cheer her up. AVALOS told the police that he and the victim returned to AVALOS' residence at 5:30 a.m. on June 19, 1991. He related that the victim asked that he accompany her to a location where they could talk. The victim and AVALOS drove to the Pepper Park boat launch area and parked.

According to AVALOS, Ms. Adame told him that she was very depressed and desired to commit suicide; she, however, did not believe she would go to heaven if she committed the act herself. She produced the 9 mm handgun and gave it to AVALOS. After a brief discussion AVALOS exited the truck, climbed into the back of the truck, and shot the victim in the back of the head from 12 inches away. AVALOS then took Ms. Adame's belongings, to make the murder look like a robbery-murder, and fled the scene.

The victim was found slumped over in her truck, dead, near midnight on June 19, 1991.

AVALOS was questioned by the police. He first denied any knowledge of the events which led to Ms. Adame's murder. A day later AVALOS admitted to police the above version of his involvement in the killing.

Relevant photographs are attached. Photo "A" is of AVALOS. Photos "B" and "C" depict the victim, Ms. Adame, as she was found by the police approximately 18 hours after the killing. Photos "D" and "E" show the entrance and exit wounds, respectively, of the victim.

VIEWS AND RECOMMENDATIONS REGARDING LENGTH OF TERM AND GRANTING OF PAROLE

There are several aggravating factors in this case which the board may wish to consider in setting the length of AVALOS' term in prison, and in deciding whether to grant parole.

First, and foremost, AVALOS abused a position of trust and murdered the victim, who was particularly vulnerable. AVALOS was a very close friend of Alice Adame. They went out together socially on a regular basis. By his own admission, AVALOS was a confidant of the victim. Yet AVALOS was willing to murder the victim rather than to offer help to her which would preserve her life. It is also noteworthy that AVALOS was willing to shoot the victim solely because she was depressed. This is not the situation where the victim suffered from a terminal or horribly painful disease; she was simply depressed.

AVALOS had many alternatives to killing his friend. He could have advised her to seek professional help; he could have suggested she talk to a priest (since he knew she believed that killing herself would violate her religious beliefs); and most obviously, once AVALOS had been given the gun, he could have kept it from the victim until such time as she was able to appreciate the devastating and tragic consequences her death would have for those near and dear to her. Instead, AVALOS abandoned sound judgment and murdered his friend, Alice Adame.

The devastation that AVALOS has wreaked on the Adame family cannot be measured. Alice was the pillar of the family, the one who was able to assume great responsibility, such as the care of her terminally-ill grandmother (who died one month before Alice's murder) and her grandfather, who has been ravaged by Alzheimer's Disease. She worked full time and had planned on resuming her education. Alice demonstrated great promise and was admired by the rest of her family. Her dream, and the dream that her family had for her, was cruelly ended by AVALOS' cold act of murder. The family has been torn apart by the murder; and the greater tragedy is that so senseless an act could have been easily avoided if AVALOS had taken the gun and left the scene.

AVALOS' act of murder has irreparably harmed Alice Adame's family, and it has brutally cut short a 23-year-old woman's life which was so full of promise.MICHAEL A. CANZONERI. DDA

Dated: January 15, 1992 EDWIN L. MILLER, JR., District Attorney By ____________________________________ Assistant District Attorney Prepared by

EXHIBIT C

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EXHIBIT D

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EXHIBIT E

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EXHIBIT F

LIFE PRISONER EVALUATION REPORT SUBSEQUENT PAROLE CONSIDERATION HEARING APRIL 2006 CALENDAR AVALOS, VICTOR H-18640

I. COMMITMENT FACTORS:

A. Life Crime:

Murder Second Degree, Penal Code (PC) 187(a) and PC 12022.5(A) Use of a Firearm. San Diego County Case Number: CR124268. Sentence: 20 years to Life. Received California Department of Corrections (CDC) on December 26, 1991. Minimum Eligible Parole Date (MEPD): March 20, 2004. Victim: Alicia Adame, age: 23.

1. Offense Summary:

On June 19, 1991 two officers from the San Diego Harbor Patrol discovered the body of 23-year-old Alicia Adame (victim) while patrolling the parking lot of Pepper Park in National City. Investigation determined that the victim had died of a single gunshot wound to the back of her head. The detectives learned that the victim had last been seen in the company of defendant, Victor Avalos. Upon further investigation and interview, Avalos told the detectives that he and the victim, Alicia Adame, had driven to his home in National City to visit friends in San Ysidrio. Avalos stated that Alicia Adame was depressed and suicidal about family problems. Avalos stated that Alicia Adame removed a black pistol from her purse and told him that she wished to be in heaven with her grandmother, but her religious beliefs prevented her from committing suicide. Avalos stated that Alicia Adame convinced him that if he did not kill her, she would take her own life. Avalos shot Alicia Adame with one shot into the back of her head and she slumped in the seat of the truck. (Information taken from pages 2 through 5 of the Probation Officer's Report (POR) dated December 13, 1991).

2. Prisoner's Version:

Avalos stated that he and Alicia Adame had spent the previous evening prior to the incident in Mexico, where they had gone to a series of bars and they eventually slept in the car prior to returning to the United States. Alicia had been depressed for a very long time about her father's drug involvement and her grandmother passing away about a month earlier. Avalos stated that he had known her for approximately two years and depression was common. On the day of the incident, Alicia and Avalos came across the border and parked near the boat launching ramps at Pepper Park in National City. Once they parked, they began talking and the subject of her ex-boyfriend came up and she became very depressed. Avalos felt bad for her and understood her depression due to the fact that Avalos had also experienced depression. Alicia was very different since her grandmother died, but she didn't seem suicidal. However, it shocked him when she pulled out the gun. She seemed tired of living and expressed it emotionally. Alicia was sitting at the driver's side and Avalos at the passenger side. She was unable to shoot herself, due to religious beliefs. She asked Avalos to help her, at which time she gave him the gun. He exited the vehicle and Alicia positioned herself in the middle of the seat. Avalos entered the back of the cab and closed his eyes and fired a shot. He placed a towel over her head once her body slumped over and then grabbed some items and left.

3. Aggravating Mitigating Circumstances:

a. Aggravating Factors:

Remains the same as stated in previous hearing.

b. Mitigating Circumstances:

Remains the same as stated in previous hearing.

B. MULTIPLE CRIMES:

N/A.

II. PRECONVICTION FACTORS:

III. POSTCONVICTION FACTORS:

Documents from the previous Hearing including the transcripts have been considered and the information appears valid.

A. Juvenile Record:

Remains the same as stated in the previous Hearings.

B. Adult Convictions and Arrests:

Remains the same as stated in the previous Hearings.

C. Personal Factors:

Remains the same as stated in the previous hearing.

A. Special Programming/Accommodations:

None noted.

B. Custody History:

Remained the same as stated in the previous hearing. Since last Board Report, I/M Avalos has remained housed at California State Prison-Solano, Level II (CSP-SOL II). I/M Avalos remains Medium A custody.

C. Therapy and Self-Help Activities:

See attached Postconviction for details.

D. Disciplinary History:

See attached Postconviction Progress Report for details.

E. Other:

On April 9, 2003, Avalos appeared before the Board of Prison Terms (BPT) for his Initial Parole Consideration and he was denied parole for a period of three (3) years. The BPT recommended he: Remain disciplinary free and participated in self-help and therapy programs.

A. Residence:

Avalos plans to reside with both parents, Theresa and Gary Avalos, at 418 G. Ave., National City, CA 91950, telephone number: (619) 447-0492.

B. Employment:

Avalos plans to obtain any available job in shipping and receiving in Optical Department or the first available employment available to be self-sufficient.

C. Assessment:

Avalos related that his family will support him until he is able to become financially stable and self-sufficient.

N/A.

A. Prior to release, the prisoner could benefit from continuing self-improvement programs.

B. This Board Report is based on an interview with the prisoner on February 14, 2006, lasting approximately two hours and a complete review of the central file lasting 3 hours.

C. Prisoner was afforded an opportunity to examine his central file and did so on February 14, 2006.

D. No accommodation for the purpose of effective communication was required per the Armstrong Remedial Plan (ARP).

Prepared by: Reviewed by: Reviewed by: __________ __________ __________ R. CAHOON M. TAN S. MILLER CCI CCII C PR(A)

EXHIBIT GCALIFORNIA BOARD OF PRISON TERMS DECISION

DEPUTY COMMISSIONER LEHMAN: Back on the record.

PRESIDING COMMISSIONER RISEN: We'll reconvene the hearing for the reading of the decision. The time is 1:34 p.m. Everyone who was previously present in the room has returned. The Panel reviewed all information received from the public and relied on the following circumstances in concluding that the prisoner is not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. Regarding the commitment offense, it was carried out in an especially violent and callous manner. The offense was carried out in a manner that demonstrates a disregard for human suffering, and the motive for the crime was inexplicable and very trivial in relation to the offense. These conclusions are drawn from the Statement of Facts wherein the prisoner and the victim drove to a park in San Diego. The victim was driving. It was her vehicle. She was depressed and apparently suicidal, and requested that the prisoner kill her in order that she could be with her grandmother who had recently passed away. She produced a handgun. The prisoner shot her one time in the head killing her. Prior to this, she had mentioned that he should take some property so that it would look like a robbery. So, the prisoner took some of the victim's property to make it look like a robbery. The psychological report dated February 13, 2003, authored by Nancy Van Couvering, spelling V-A-N-C-O-U-V-E-R-I-N-G, Ph.D., is not totally suitable — or supportive of release. She states on page four in the last paragraph:

"Although this — Although these scenarios seems unlikely to be reproduced, the inmate's lack of sophistication would leave him vulnerable to other external pressures to act. Therefore, this inmate's potential for violence is unpredictable."

Also, in the Board report, L. Ramos, the correctional counselor, indicates that she believes the prisoner would pose a moderate degree of threat to the public at this time. Regarding parole plans, the prisoner lacks realistic parole plans in that he does not have an acceptable employment plan. What we need from you is a letter offering parole [sic], if at all possible, or at least inquiries into — about employment, letters, inquiring about employment or a letter offering employment. The Panel makes the following findings. The prisoner continues — needs to continue to participate in self-help in order to discuss, understand and cope with stress in a nondestructive manner. Until progress is made, the prisoner continues to be unpredictable. Nevertheless, the prisoner should be commended for remaining disciplinary free since 1993, for completion of the vocational optical program, completion of the vocational mill and cabinet program in 1994, and for participation in the Prisoner Outreach Program. However, these positive aspects of his behavior do not outweigh the factors of unsuitability. In a separate decision, the Hearing Panel finds that the prisoner has been convicted of murder, and it is not reasonable to expect that parole should be granted at a hearing during the next three years. Specific reasons for these findings are as follows. The prisoner committed the offense in an especially violent manner. The offense was carried out in a manner which demonstrates a disregard for human suffering, and the motive for the crime is inexplicable and very trivial in relation to the offense. Specifically, the inmate shot the victim once in the head with a gun after she had requested that he assist her in committing suicide so that she could be with her grandmother. A recent psychiatric report of 2/13/2002, authored, again, by Nancy Van Couvering, Ph.D., indicates a need for a longer period of observation and evaluation. Also, Correctional Counselor Ramos on November 8^th of 2002 in the Board report states that she believes the prisoner would be posing a moderate degree of threat to the public if released. Therefore, a longer period of observation and evaluation of the prisoner is required before the Board can find that the prisoner is suitable for parole. The Panel recommends that he remain disciplinary free and continue to participate in self-help. That concludes the reading of the decision. Do you have any comments, Commissioner?

DEPUTY COMMISSIONER LEHMAN: I have nothing further.

PRESIDING COMMISSIONER RISEN: Okay. We'll recess the hearing — terminate the hearing at 1:40 p.m.

PAROLE DENIED THREE YEARS

FINAL DATE OF DECISION JUL 08 2003

EXHIBIT H

SUBSEQUENT PAROLE CONSIDERATION HEARING STATE OF CALIFORNIA BOARD OF PAROLE HEARINGS In the matter of the Life Term Parole Consideration CDC Number H-18640 Hearing of: VICTOR AVALOS California State Prison Solano, California August 17, 2006 2:58 P.M. PANEL PRESENT: Mr. Jack Garner, Presiding Commissioner Mr. Robert Harmon, Deputy Commissioner OTHERS PRESENT: Mr. Victor Avalos, Inmate Ms. Candice Christensen, Attorney for Inmate Mr. Richard Sachs, Deputy District Attorney (via video conference) Mr. Miguel Adame, Victim's Next of Kin Ms. Herminia Adame, Victim's Next of Kin Mr. G.E. Franklin, Victim Services Representative Correctional Officer, Unidentified CORRECTIONS TO THE DECISION HAVE BEEN MADE _____ No See Review of Hearing _____ Yes Transcript Memorandum Rosalie Orosa Vine, McKinnon Hall INDEXPage Proceedings ....................................... 1 Case Factors ...................................... 9 Pre-Commitment Factors ........................... 18 Parole Plans ..................................... 19 Post-Commitment Factors .......................... 26 Closing Statements ............................... 46 Recess ........................................... 55 Decision ......................................... 56 Adjournment ...................................... 61 Transcriber Certification ........................ 62

PROCEEDINGS

PRESIDING COMMISSIONER GARNER: Thank You. This is a Subsequent Parole Consideration Hearing for Victor Avalos, A-V-A-L-O-S, CDC number H-18640. The date today is August 17, 2006. It is 2:58 p.m. and we are located at the California State Prison in Solano. The inmate was received on December 26, 1991. The life term starts on March 21^st, 1994, received from San Diego County. The offense was murder in the second degree with a weapon, case number CR-124268, count number one P.C. 187 and 12022.5(a). The term was 20 years to life and the minimum eligible parole date is March 20, 2004. This hearing is going to be tape recorded and for purposes of voice identification, everyone in the room with the exception of the correction officer is going to be required to give their first name, last name, spelling the last name and when we get to you Mr. Avalos, if you'd give us your CDC number please. I will start, going to my left. I'm Jack Garner, G-A-R-N-E-R, Commissioner.

DEPUTY COMMISSIONER HARMON: Robert Harmon, H-A-R-M-O-N, Deputy Commissioner.

INMATE AVALOS: Victor Avalos, A-V-A-L-O-S, H-18640.

ATTORNEY CHRISTENSEN: Candice Christensen, C-H-R-I-S-T-E-N-S-E-N, Attorney for Mr. Avalos.

MRS. ADAME: Herminia Adame —

DEPUTY DISTRICT ATTORNEY SACHS: Richard Sachs, S-A-C-H-S, Deputy District Attorney.

PRESIDING COMMISSIONER GARNER: Thank You.

MRS. ADAME: Herminia Adame, mother of the victim last name, A-D-A-M-E.

MR. ADAME: Miguel Adame, father of the victim, A-D-A-M-E.

MR. FRANKLIN: G.E. (phonetic) Franklin, F-R-A-N-K-L-I-N, Victim Services representative.

PRESIDING COMMISSIONER GARNER: Very good. And again for the record we do have a correctional peace officer in the room for purposes of security. Okay. Mr. Avalos and Ms. Christensen, I have before me the Board of Prison Terms form that is used for providing reasonable accommodation associated with the Americans with Disabilities Act. And, Mr. Avalos, you signed this form in January of 2006, at that time no disabilities were identified from the file review and you indicated that you didn't need any help for the hearing other than legal representation. A reading level of 8.0 is also noted and let me ask you at this time, has any condition developed since January that we might be in a position to provide you an accommodation for today?

INMATE AVALOS: No, Sir.

PRESIDING COMMISSIONER GARNER: I note that you are wearing glasses, are they for reading?

INMATE AVALOS: They're a —

PRESIDING COMMISSIONER GARNER: Bifocal?

INMATE AVALOS: Prescription glasses.

PRESIDING COMMISSIONER GARNER: Prescription for reading and general vision

INMATE AVALOS: Yes, Sir.

PRESIDING COMMISSIONER GARNER: Did you do a Olsen review of your file?

INMATE AVALOS: Yes.

PRESIDING COMMISSIONER GARNER: Did you have your glasses with you?

INMATE AVALOS: Yes.

PRESIDING COMMISSIONER GARNER: So you were able to see the documents clearly?

INMATE AVALOS: Yes, Sir.

PRESIDING COMMISSIONER GARNER: Okay. Are you on any prescription medications?

INMATE AVALOS: No, Sir.

PRESIDING COMMISSIONER GARNER: Okay. ADA sufficiently addressed, Ms. Christensen?

ATTORNEY CHRISTENSEN: Yes.

PRESIDING COMMISSIONER GARNER: Thank You. This hearing is being conducted pursuant to Penal Code Section 3041 and 3042 and the Rules and Regulations of the Board of Parole Hearings governing parole consideration hearings for life inmates. The purpose of today's hearing is to consider your suitability for parole. In doing so, we consider the number and nature of the crimes you were committed for, your prior criminal and social history and your behavior and programming since your commitment. We've had the opportunity to review your Central File and your prior hearing transcript. You will be given the opportunity to correct or clarify the record. We will consider your progress since your commitment and since your last hearing. The updated Counselor's Report and Psychological Report will also be considered and any change in you parole plans should be brought to our attention. We will reach a decision today and inform you whether or not we find you suitable for parole and the reasons for our decision. If you are found suitable for parole, the length of your confinement will be explained to you. This hearing will be conducted in two phases. I will discuss with you the crime you were committed for, your prior criminal and social history, your parole plans, and any letters of support or opposition that may be in the file. Commissioner Harmon will discuss with you your progress since your commitment, your Counselor's Report and your Psychological Evaluation. Once that's concluded, Commissioners, the District Attorney and your Attorney will be given the opportunity to ask you questions. Questions from the District Attorney will be asked through the Chair and you should direct your answers back to the Panel. Before we recess for deliberations, the District Attorney, your Attorney and you will be given an opportunity to make a final statement regarding your parole suitability. Your statement should be directed to why you feel you're suitable for parole. The victim's next of kin will then have an opportunity to give a statement regarding the crime and your responsibility. We will then recess, clear the room and deliberate. Once we've completed our deliberations we will resume the hearing and announce our decision. The California Code of Regulations states that regardless of time served, a life inmate shall be found unsuitable for and denied parole if in the judgment of the Panel, the inmate would pose an unreasonable risk of danger to society if released from prison. Mr. Avalos, you have certain rights coming in to the hearing today, including a timely notice to the hearing, the right to review your Central File and the right to present relevant documents. I ask you at this time, have those rights been met?

INMATE AVALOS: Yes, Sir.

PRESIDING COMMISSIONER GARNER: You also have the right to be heard by an impartial panel. Today, your Panel will consist of myself and Commissioner Harmon; do you have any objection to the Panel?

INMATE AVALOS: Well, no. I just like — if you're asking me if it's going to be fair and impartial, I don't know you gentleman. If you could give me a background on, you know, you guys, you know, that would help me determine whether I was going to get a fair and impartial hearing, if that's okay with the Panel.

PRESIDING COMMISSIONER GARNER: What is it you're looking for, Sir?

INMATE AVALOS: Well I mean — again I don't know you gentleman until now. So you know, whether or not if I'm going to receive a fair and impartial hearing from the Commissioners, I would just like to know anything about your background, you know, occupation in the other — in the past, if it's okay.

PRESIDING COMMISSIONER GARNER: That's a fair question. My background is law enforcement. It's also General City Administration, I was the City Manager for five years and for 15 years before I came to the Board, I was involved in training programs for law enforcement. I wasn't actively in the business but I was doing training programs. I was appointed about one year ago, one year in September by the Governor. And since then, I've done about 440 hearings. I have given grants and just yesterday I was confirmed by the Senate for the position. So, that's my background.

INMATE AVALOS: And Mr. Harmon?

DEPUTY COMMISSIONER HARMON: Well, what I'll tell you briefly here is that, I don't know you. I don't know your case until I sat down today. I have no preconceived ideas as to what I am going to do in your particular case today and I'm taking it and you on its own merits beginning now.

INMATE AVALOS: Okay. Thank you.

DEPUTY COMMISSIONER HARMON: So, as far as my background goes, it's law enforcement and I have been with the Board for over 10 years and I have done thousands of lifer hearings.

INMATE AVALOS: All right. Thank you.

PRESIDING COMMISSIONER GARNER: Okay. Well I will read you my question, Sir. With the information we provided to you, do you have any objection to the Panel?

INMATE AVALOS: No, Sir.

PRESIDING COMMISSIONER GARNER: Okay. Thank you. You will receive a copy of our written tentative decision today and a copy of the tentative decision and a copy of the transcript will be sent to you in the future. You might recall from your last hearing in May 2004, they discussed with you that there were major changes to the appeal procedures, where panel decisions now and you must go through the courts if you want to appeal a panel decision. Were you aware of that?

INMATE AVALOS: Yes, Sir.

PRESIDING COMMISSIONER GARNER: All right. Thank you. And also, you are not required to admit your offense or discuss your offense if you do not wish to do so. However, this panel does accept as true the findings of the court and you are invited to discuss the facts and circumstances of the offense if you desire. The Board will review and consider any prior statement you made regarding the offense in determining your suitability for parole. At this time, I will ask Commissioner Harmon if there is any confidential material in your Central File and if we'll be using it today?

INMATE AVALOS: Yes, there is confidential information and no there will not be any of that information utilized today in today's hearing.

PRESIDING COMMISSIONER GARNER: Okay, very good. I have the hearing checklist from Ms. Christensen. Mr. Sachs, the hearing checklist dated July 21, 2006?

DEPUTY DISTRICT ATTORNEY SACHS: Yes, I stipulate that I have those documents of Mr. Avalos.

PRESIDING COMMISSIONER GARNER: Very good, thank you. Any additional documents beyond the ones we were provided?

ATTORNEY CHRISTENSEN: You know, I brought two with me.

PRESIDING COMMISSIONER GARNER: All right.

ATTORNEY CHRISTENSEN: If you have the certificates —

PRESIDING COMMISSIONER GARNER: We have those.

ATTORNEY CHRISTENSEN: — letters.

PRESIDING COMMISSIONER GARNER: Letters, I've got those. Thank you. And any preliminary objections? ATTORNEY CHRISTENSEN: No.

PRESIDING COMMISSIONER GARNER: Mr. Avalos will be speaking with us today?

ATTORNEY CHRISTENSEN: Yes, he will.

PRESIDING COMMISSIONER GARNER: Could you raise your right hand Mr. Avalos. Do you solemnly swear or affirm that the testimony you give at this hearing will the truth, the whole truth and nothing but the truth?

INMATE AVALOS: I do.

PRESIDING COMMISSIONER GARNER: All right, thank you. Okay. At this point what I'm going to do is I'm going read into the record the summary of the commitment offense. This summary was taken from a report that was prepared for the Board for the April 2006 calendar that was prepared by Correctional Counselor Cahoon. Let me make sure I've got my spelling correct. It's C-A-H-O-O-N, Correctional Counselor I.

"That in June 19, 1991 two police officers from the San Diego Harbor Patrol discovered the body of 23-year-old Alicia Adame, A-L-I-C-I-A, apparently the victim, while patrolling the parking lot of Pepper Park in National City; Pepper is like the spice. Investigation determined that the victim had died of a single gunshot wound to the back of her head. The detectives learned that the victim had been last seen in the company of defendant Victor Avalos. On further investigation and interview, Avalos told the detectives that he and the victim, Alicia Adame, had driven to his home in National City to visit friends in San Isidro. Avalos stated that Alicia Adame was depressed and suicidal about family problems. Avalos stated that Alicia Adame removed the black pistol from her purse and told him she wished to be in heaven with her grandmother, but her religious beliefs prevented her from committing suicide. Avalos stated Alicia Adame convinced him that if he did not kill her she would take her own life. Avalos shot Alicia Adame with one shot in the back of her head and she slumped in the seat of the truck."

That was taken from a probation officer's report dated December 13^th, 1991. So let me go ahead and start by asking you, Mr. Avalos; is that a short but fairly accurate version of what happened back in June of 1991?

INMATE AVALOS: Yes, Sir.

PRESIDING COMMISSIONER GARNER: And what time of the day was this that you were parked on this vehicle?

INMATE AVALOS: Excuse me?

PRESIDING COMMISSIONER GARNER: What time of the day was it that you were parked in the vehicle with Ms. Adame?

INMATE AVALOS: It was early in the morning. Time wise, I don't know. It was just early in the morning.

PRESIDING COMMISSIONER GARNER: Was it dark?

INMATE AVALOS: Yes.

PRESIDING COMMISSIONER GARNER: Still dark. Okay. And how did you happen to be in this particular parking lot?

INMATE AVALOS: Well, we were, like you said, we were going to see some friends in San Isidro. And we had went to TJ, you know, and she just seemed depressed, you know. Something about, you know — it's — she just —

PRESIDING COMMISSIONER GARNER: Let me stop — let me stop you because you're kind of going a little away from my question. What caused you to go to Pepper Park?

INMATE AVALOS: Oh, just to — just to talk. To talk, you know.

PRESIDING COMMISSIONER GARNER: And this was after you had either what — returned from San Isidro or Tijuana?

INMATE AVALOS: Tijuana.

PRESIDING COMMISSIONER GARNER: From Tijuana. And how far from Pepper Park is your home?

INMATE AVALOS: Oh, I say a couple of miles.

PRESIDING COMMISSIONER GARNER: Okay. And again, the reason was just to stop and talk?

INMATE AVALOS: Yes.

PRESIDING COMMISSIONER GARNER: And you already indicated that she told you she was depressed about something?

INMATE AVALOS: Yes.

PRESIDING COMMISSIONER GARNER: And how long had you been there when she went into her purse?

INMATE AVALOS: We were there for about 45 minutes to an hour.

PRESIDING COMMISSIONER GARNER: Just talking?

INMATE AVALOS: Yes.

PRESIDING COMMISSIONER GARNER: And what was her frame of mind at that time?

INMATE AVALOS: Distant.

PRESIDING COMMISSIONER GARNER: Describe how you reached that assessment.

INMATE AVALOS: Well she just seemed — she wasn't really making, I don't know, I guess sense. She just wasn't — I mean, it didn't seem like she was with me, you know, as we were talking. She just kept going on about, you know, she missed her grandmother.

PRESIDING COMMISSIONER GARNER: Had you been drinking?

INMATE AVALOS: We had a drink about, I'd say three hours, four hours before. It was late in the evening. We came from TJ around — after midnight. We had a couple of drinks.

PRESIDING COMMISSIONER GARNER: Okay. And you had those in Tijuana?

INMATE AVALOS: Yes, we were in a restaurant.

PRESIDING COMMISSIONER GARNER: All right.

INMATE AVALOS: Had dinner.

PRESIDING COMMISSIONER GARNER: Okay. And at what point did she take the weapon out of her purse?

INMATE AVALOS: Well, after — after our conversation, it was, I'd say about — I'd say about, the ending of our conversation, it was about 40-45 minutes.

PRESIDING COMMISSIONER GARNER: All right. And did you have any indication that she had the weapon in her purse?

INMATE AVALOS: No, I didn't.

PRESIDING COMMISSIONER GARNER: Had she ever mentioned previously that the weapon was in her purse?

INMATE AVALOS: No.

PRESIDING COMMISSIONER GARNER: Have you on any other occasion ever seen her have a weapon in her possession?

INMATE AVALOS: No, Sir.

PRESIDING COMMISSIONER GARNER: So at this point in time that you described, about 45 minutes after you stopped, she takes a weapon out of her purse? INMATE AVALOS: Yes.

PRESIDING COMMISSIONER GARNER: Was there any source of illumination in the vehicle?

INMATE AVALOS: What does that mean?

PRESIDING COMMISSIONER GARNER: Any lights?

INMATE AVALOS: Lights?

PRESIDING COMMISSIONER GARNER: Overhead lights, interior lights that you had on in the vehicle?

INMATE AVALOS: I don't remember at all.

PRESIDING COMMISSIONER GARNER: So you were clearly able to see that it was a weapon?

INMATE AVALOS: Yes, Sir.

PRESIDING COMMISSIONER GARNER: Are you familiar with firearms?

INMATE AVALOS: No, Sir.

PRESIDING COMMISSIONER GARNER: So you wouldn't of — could you tell me whether it was a semi-automatic or a revolver?

INMATE AVALOS: From what the detectives told me it was a — I remember him stating it was a Berretta. I remember it being black.

PRESIDING COMMISSIONER GARNER: Okay.

INMATE AVALOS: And heavy.

PRESIDING COMMISSIONER GARNER: So after she took the weapon out of her purse, what did she do with it?

INMATE AVALOS: She had it in her hand and then she started something about, you know, she wanted to take her own life and that she couldn't do it. I was, at that moment — see I don't want to say or try to explain, you know — by me trying to explain this, it's trying to justify what — there's no excuse for what I did. So I can't — to elaborate and say that, you know, my actions in trying to find an excuse, I can't do that because there is no excuse to what I did, okay. I messed up. I failed. I could've — now going through it — I could see — there's so many things that I could've done and I didn't.

PRESIDING COMMISSIONER GARNER: Well, why don't you just stick with the questions, because I understand. If you want to make that as some sort of a closing statement, that would be appropriate at that time.

INMATE AVALOS: Okay.

PRESIDING COMMISSIONER GARNER: So she has the weapon in her hand, outside of the purse. At any point, did she point the weapon toward her?

INMATE AVALOS: No.

PRESIDING COMMISSIONER GARNER: No point, all right. And about how long was it before you took possession of the weapon from her?

INMATE AVALOS: I'd say about 10 minutes, 15 minutes.

PRESIDING COMMISSIONER GARNER: Did you ask for it or did she relinquish it to you?

INMATE AVALOS: Gave it to me.

PRESIDING COMMISSIONER GARNER: She just gave it to you. Did you know if it was loaded or not?

INMATE AVALOS: No. I mean, I don't know much about firearms.

PRESIDING COMMISSIONER GARNER: All right. So you have the weapon in your possession now?

INMATE AVALOS: Yes.

PRESIDING COMMISSIONER GARNER: And did she make any specific statements to you at that time?

INMATE AVALOS: She just told me that — she tried to explain to me that this is something that needs to be done and that she loved her family and she was sorry.

PRESIDING COMMISSIONER GARNER: And were you on the driver's side of the vehicle or the passenger?

INMATE AVALOS: I was the passenger, she was driving.

PRESIDING COMMISSIONER GARNER: She was driving. So are you left or right-handed?

INMATE AVALOS: I'm right-handed.

PRESIDING COMMISSIONER GARNER: You're right-handed. So, at what point in time did you shoot her?

INMATE AVALOS: Ten minutes after she gave me the gun.

PRESIDING COMMISSIONER GARNER: Did you told her in advance that you are going to do it?

INMATE AVALOS: Did I tell her? No, Sir.

PRESIDING COMMISSIONER GARNER: So at some point you pointed the gun in her direction and fired one shot?

INMATE AVALOS: Yes, Sir.

PRESIDING COMMISSIONER GARNER: And she slumped?

INMATE AVALOS: Yes, Sir.

PRESIDING COMMISSIONER GARNER: What did you do then?

INMATE AVALOS: I remember coming out of the back of the camper and I took off running, running home.

PRESIDING COMMISSIONER GARNER: Which you said was a couple of miles away, I believe?

INMATE AVALOS: Yes, Sir.

PRESIDING COMMISSIONER GARNER: What did you do with the weapon?

INMATE AVALOS: I discarded it.

PRESIDING COMMISSIONER GARNER: Remember where?

INMATE AVALOS: I believe in the trash can — I don't know.

PRESIDING COMMISSIONER GARNER: And when you got home, did you find any blood on your clothing?

INMATE AVALOS: No. When I fired, I was what, three, four feet away.

PRESIDING COMMISSIONER GARNER: Did you move the weapon in her direction or did you keep it? In other words, did you extend your arm with the weapon in toward her?

INMATE AVALOS: Yes, Sir.

PRESIDING COMMISSIONER GARNER: So the distance between the weapon and her head was approximately — using the front of the car seat as a gauge —

INMATE AVALOS: Well, the truck has a camper shell.

PRESIDING COMMISSIONER GARNER: Okay.

INMATE AVALOS: I opened up the window, extended my hand as far as the length of the bed of the truck — I don't know. I don't know.

PRESIDING COMMISSIONER GARNER: And to kind of wrap it up, you took off running, found some place to discard the weapon and then went home?

INMATE AVALOS: Yes, Sir.

PRESIDING COMMISSIONER GARNER: And at the time that you left her, did you know if she was dead or alive?

INMATE AVALOS: I don't know.

PRESIDING COMMISSIONER GARNER: You didn't know. My report indicates that this is your only arrest?

INMATE AVALOS: Yes, Sir.

PRESIDING COMMISSIONER GARNER: That would indicate both for juvenile and adult. Personal considerations; is it correct that you were born in San Diego on May 23^rd, 1969?

INMATE AVALOS: Yes, Sir.

PRESIDING COMMISSIONER GARNER: Parents were Teresa, T-E-R-E-S-A and Gary Avalos. Your mother was a housewife and your father at the time was involved in solar turbines. Both now retired?

INMATE AVALOS: Yes.

PRESIDING COMMISSIONER GARNER: And gives an address where your parents are located. One of five children. And you remember your upbringing as being strict cultural upbringing.

INMATE AVALOS: Yes, Sir.

PRESIDING COMMISSIONER GARNER: And you were raised in San Diego area and dropped out of high school in '86?

INMATE AVALOS: Yes, Sir.

PRESIDING COMMISSIONER GARNER: And started working. In '89 you did the Job Corp where you got a certificate for Mill and Cabinet and also got your GED and continued to be a student until '91 when this offense occurred. Where were you a student?

INMATE AVALOS: In the streets — I mean, on the outside? Job Corp was my last.

PRESIDING COMMISSIONER GARNER: Any point from your earliest recollections until the time of this offense, were you ever hospitalized for anything?

INMATE AVALOS: No, Sir.

PRESIDING COMMISSIONER GARNER: Never been hospitalized. Okay. So as far as your parole plans, you will reside with your parents at an address noted in National City, and that you plan to attain a job available in shipping and receiving and optical or the first employment that came before you. Let's take a look at any of this letters that we have. The first one is from Teresa Avalos, it's on personal stationary. It's typed and signed. It's dated August 2^nd, 2006, your mother is writing a letter of support. She wants to express her sincere apologies to the victim's parents, family and friends for their loss. She is sorry for the pain that your actions caused them and begs for mercy on your behalf and that her thoughts and her prayers are with them. And that you've always been a good person, you are not a monster, you are not a threat to society, you were young and very angry and misguided when you committed the crime, which was a terrible mistake. You confessed to it, accepted the sentence and you served your time, taken the responsibility, acknowledged your guilt and has asked for forgiveness. And now, you are before us to be judged to determine if you are ready to be free or not. Like to have you home, she is a widow. Her husband passed away three years ago and that she is now 67. And that all the other children have families of their own and can't impose them to be with her. So you are the only one she has left to help her. That you've made some improvements in your demeanor since you went to prison. Initially, you seemed angry and not accepting the situation but with the help you received, you've matured and grown. You're older and wiser and now have a clear head. She talks about the professions and skills that you have learned while being incarcerated and also speaks to the interest in working with young people. And apparently, one of her grandchildren is already reaping and benefiting from some of the experiences that you've shared, and closes with the fact that you are truly sorry for the life you took. You can't undo what's been done. You can only rectify by helping somebody else or saving someone else. Another letter that is dated August 2^nd, 2006, it's on personal stationary. It's from Maria Laclair, L-A-C-L-A-I-R, an address in Newark, Delaware. It's your oldest sister writing a letter in support and talks of you being the youngest in a family of seven. She is the oldest, and you being quiet and a good son to the parents. Never got in trouble. Never lost your temper. She just could not imagine having to grapple with the knowledge that you killed someone. How it was devastating but, as the older sister, she stood by you as she is doing today. And speaks to your earlier period of incarceration, about you being young and frightened and that you stayed in close contact since those early years. And even though she is on the East Coast, she makes it a point to visit when she can, but not as often as she'd like. You have telephone contact and letters. And that you are not the same person that entered the system; that you're older, not just physically but mentally. Never blamed anyone else for your actions. Never proclaimed to be innocent or not guilty. That you have always been and always will be a good person who made one serious mistake, one lapse in judgment. You have actually served your time and you should not have to pay with the rest of your life. You are not a threat to society you could be put to better productive use outside. And that her opinion is you've earned your freedom, it has not come easy; prison life isn't geared to be easy and that you have been a good inmate. You have been cooperative, followed the rules and worked your programs. I have a letter from Araceli Hernandez, A-R-A-C-E-L-I and Hernandez has a Z at the end, August 2^nd, 2006, this also is from Newark, Delaware. And writing in behalf of my uncle, in support of his upcoming parole hearing, it speaks to the mistake that you made and how it negatively affected so many people and again, expresses her sorrow for the family of the victim. And that you're a good person, truly sorry for what you have done, you demonstrated that by confessing to the crime and taking the sentence that you were given. That you were in prison since you were 19 and you have changed since that time, progressed from Level IV maximum security to Level II status for good behavior, taken advantage of programs while incarcerated to make you a better person. And they know the seriousness of the crime and the impact it had on the family, but it has also impacted their family as well. And there is no winner in this situation. But she feels that you paid for you crime and that you're not a threat any longer. Natasha Laclair, Natasha is N-A-T-A-S-H-A Newark, Delaware August 2^nd, 2006, again typed and signed. It's your niece writing a letter of support, again this speaks to the number of years in prison, going from maximum to Level IV to Level II. That you stayed out of trouble. You entered prison as a young man, only 19 and remembered the first time she visited you in prison and that a — dealing with the feelings that she had as a result of that. And recently visited you and now feels hopeful for you when you leave. That you are a very different person. She knows you were convicted of a very serious crime. She'd read the court transcripts, so she understands about how angry and hurt the victim's family is. And it speaks to what you missed in life and what you have paid for your crime, and all the family events that you have missed. Speaks to her personal feelings about missing you. And feels you could spend the remainder of your life as a productive member of society. And the next one is from a Crystal, C-R-Y-S-T-A-L, Laclair, August 3^rd, 2006. And this one does not have a — it has no address on this one. This is your niece, again writing a letter of support. And again, apologies to the family of the victim. And that you have been in jail all her life, she was only three years old when you committed the crime. And again, speaks to the change in the security level, you going from Level IV to Level II. And that she didn't get any time to spend with you outside the penitentiary, so she never knew what kind of a person you were. But again, feels you know the crime you have committed and how sorry you are. Speaks to how serious the crime was and that you have paid more than enough for the crime. Again, speaks to the victim's family suffering and that she has only spent a little bit of time and she — I got mine (inaudible), it's next to me with the family, but that's not really clear — "I only spent a little bit of time in jail, and when I got out my uncle was there for me." And it speaks to telling her to do the right things. You apparently done some counseling, and everyday the thoughts of what he has done, how it affected so many different people's lives, how it impacts you and again, it is asking for a second chance. Are these originals, Ms. Christensen?

ATTORNEY CHRISTENSEN: Pardon me?

PRESIDING COMMISSIONER GARNER: Are these originals?

ATTORNEY CHRISTENSEN: (Inaudible) originals?

INMATE AVALOS: Those are what — my counselor, she made copies. She gave me that. The original is probably in my file.

PRESIDING COMMISSIONER GARNER: All right. I just want to make sure that we didn't keep any original in here. Okay, let me take a quick look. I do have another letter. It's from a Tracy, T-R-A-C-Y, Partida, P-A-R-T-I-D-A, family friend since she was a baby. She is 17 now. They saw you as a family member of their family. Great guy, many qualities, a great listener and a mentor. When she was about 12, she was depressed and on the verge of suicide. The only person that comforted her was you. And that you have been a positive figure in her life, taught her about kindness, self-respect and forgiveness. And that you have learned from your mistake and you want to be someone positive and a remarkable person who only with words on a piece paper has been able to change her life. And provides a address, and wants us to understand the gift that you have provided to her of a new and better life. I have one from a Leslie, L-E-S-L-I-E,' Madrid, M-A-D-R-I-D, and this one is not — this one is not dated, it is typed and signed. A family friend since she was a baby. She is 22 and it's been years since I've seen him. More than a friend, more like a father-figure. A father who someone listens, who cares, gives advise and understands what you did is wrong. She feels you deserve a second chance. You got a family that misses you and are willing to stick by you through thick and thin, be able to show you what life is really about. And regrets the things in life, but hopes for a brighter future. You talk about going to school, reading books and how much you want to improve your life. She is a full-time employee and a part time college student, lives on her own. And writes a telephone number for any questions, just give her a call. Okay. I think I've got all the support letters read into the file. We did send the Penal Code 3042 notices. These are legal notices that went to all of the agencies that had a direct involvement in this case and in response to that, there is a representative from the San Diego County District Attorney's Office who will be speaking later in the hearing. Okay, Mr. Avalos, at this time I am going to ask you to direct your attention to Commissioner Harmon. He is going to talk to you about your post-conviction behavior.

DEPUTY COMMISSIONER HARMON: Yes, Sir. Good afternoon, Mr. Avalos.

INMATE AVALOS: Good afternoon.

DEPUTY COMMISSIONER HARMON: Let's start out here. I want you to listen very carefully. We are going to make sure the record is correct. It does show that your last hearing was April 9^th of '03. And at that time, you received a three-year denial. That was actually your initial hearing. You were received to CSP Solano on May 5^th of 1999 from RJD. Your current custody level is Medium A and you have a revised class score of 19. Does that all sound right to you? INMATE AVALOS: Yes, Sir.

DEPUTY COMMISSIONER HARMON: Okay. What we are going to do is we are going to focus primarily on the period of time since your last hearing. And what I am going to do is I am going to use your Counselor's Report as reference. Now, I may leave out areas that are very important to both of you and your Counsel. Listen carefully, if there are areas that I am missing or (inaudible) on, then I will give you an opportunity to respond, okay? So picking it up, the Counselor's start March 6^th of '03 to March 5^th of '04. And the Counselor says here, like I have said, in part it says that, "During this period of time you remained at CSP Solano, Level II, Medium A custody. There was no vocational training." It says that under academics, "The Central File indicates a 5903, Continuing Education Certificate, the Ultimate Enhancement and 5903 Continuing Education Certificate, 10 Ways to Be Effective, Dispensing High-Index Lenses." And in the area of work record, the Counselor writes that, "Based on various chronos here, you have exceptional work performance as an optical technician." It says that you completed a 13-week Anger Management course. You remained in the Triple CMS Mental Health Placement Program and there was no medications prescribed. No discipline. And it says that on February 13^th of '03 through May 8^th of '03, there was a Certificate of Completion for Anger Management. From March 6^th of '04 to March 5^th of '05, you remained at CSP, Solano at Level II, Medium A custody during the entire period of time. There was no vocational training. And then from March 6^th of '05 to February 2^nd of '06, it says that you remained at CSP Solano the entire time, Medium A custody. You were assigned at the PIA Optical Labs, Lens Lab. There's no academics and based on various chronos, it shows exceptional to above-average work performance. There's no group activities. And it says that you remained in the Triple CMS Program. It shows that a 115 was issued 8/8/05, for contraband. And then it says you received a certificate for Service Specialist from Electronic Technicians' Association dated 7/5/05. And then it's picked up on February 2^nd of '06 to July 3^rd of '06, and it says that during your entire time here at Solano, same custody level. It says that you continued at the PIA Lens Lab position, receiving exceptional reports. There is no group activity. No psychiatric treatment. No discipline. And that brings us up, I believe, to 7/21/06. How does the Counselor's Report sound?

INMATE AVALOS: There was an addendum made on that Counselor's Report after I received that. I saw her because there was two discrepancies that were not right. I am not on Triple CMS. I was on the program for 90 days and then they took me off because it was funded by, you know — to get the program done you have to be classified as Triple CMS, then you are removed. So when I completed the course I was no longer Triple CMS. And I've never received a 115 for contraband.

DEPUTY COMMISSIONER HARMON: Right. I was going to clear that up. But thank you.

INMATE AVALOS: Okay.

DEPUTY COMMISSIONER HARMON: Okay. And what's your current work?

INMATE AVALOS: Lens Lab.

DEPUTY COMMISSIONER HARMON: Okay. Let's talk about your accomplishments since coming to prison. I guess my first question to you is you're — you received a Customer Service Specialist Certificate in '05 and you also have an Electronics Technician Association Certificate. What specifically is that?

INMATE AVALOS: It's the — those two that you mentioned are one and the same. It just falls under — I believe the company that does it is Electric Specialists, but I received a Customer Service MI in what they call a CSS, Customer Service Specialist.

DEPUTY COMMISSIONER HARMON: Okay. So basically, what that is is you can almost work for any business and it would allow you training in the area of being a Customer Service Specialist? INMATE AVALOS: Yes, Sir.

DEPUTY COMMISSIONER HARMON: Okay. Because I was trying to figure out the relationship there. Okay. Now what I found is that back in 2000, you had completed a vocational Lens Lab program and in 2000, you completed the written portion?

INMATE AVALOS: Yes. In order for you to go to PIA, you must take the vocation class, which I did, and the written test and all that. And once I completed that, I was able to join in the Prison Industry Authority Lens Lab Program.

DEPUTY COMMISSIONER HARMON: Okay. Mill and Cabinet?

INMATE AVALOS: It was done in — I don't — I am not sure what year it was. It was in Calipatria State Prison.

DEPUTY COMMISSIONER HARMON: Right.

INMATE AVALOS: It was one of the vocations that I completed.

DEPUTY COMMISSIONER HARMON: Right. Just make sure the records — it's kind of hard following these because it's not all in order. Let's see here —

INMATE AVALOS: I believe it was in the '93 or '94.

DEPUTY COMMISSIONER HARMON: Okay. Advanced studies in Mill and Cabinet in January '94?

INMATE AVALOS: Yes, Sir.

DEPUTY COMMISSIONER HARMON: Okay. And let's see here — and then, of course, you have the PIA Optical.

INMATE AVALOS: Yes.

DEPUTY COMMISSIONER HARMON: And some of the other jobs that you've handled since being prison include — you've been on the (inaudible), Adult Basic Education, you've done some Porter work. We've talked about Optical Lens Lab. Okay. You received good work reports. You got your GED in 1989?

INMATE AVALOS: Yes, Sir.

DEPUTY COMMISSIONER HARMON: You're a — I found a tape score, let's see, a 12.9 reading and a total of 83?

INMATE AVALOS: Yes, Sir.

DEPUTY COMMISSIONER HARMON: Okay. Self-help group programs. How many — I'm familiar with FEMA. I only found one certificate. How many did you do have in '03? How many certificates did you receive?

INMATE AVALOS: I just did one.

DEPUTY COMMISSIONER HARMON: You did the first one?

INMATE AVALOS: Yes. I believe that was the orientation.

DEPUTY COMMISSIONER HARMON: Right. Okay. Because there was about — back then there was about, I think about 18 or 20 segments. Okay. So and then you did the — now you were trying to get into the Lifer's Group a number of years ago. Did you ever get into that?

INMATE AVALOS: No. And the reason being is because both POP, Prison Outreach Program, and the Board program are pretty much sown up as far as the members that they have. It's not like other programs which do like a 9-week course. So to try to get into that program is almost impossible.

DEPUTY COMMISSIONER HARMON: Okay. You did a 3-day Creative Conflict Resolution Workshop in '06?

INMATE AVALOS: Yes, I did.

DEPUTY COMMISSIONER HARMON: Okay. And then, you recently did the — you handed me today 9-lessons in August of '06, Thinking Skills for Offense Prevention. That's not in your file yet, but

INMATE AVALOS: No, it's not.

DEPUTY COMMISSIONER HARMON: Okay. Now some of the other things you've done, you did the Life Plan for Recovery, the 120-hour program, back in '98?

INMATE AVALOS: Uh-huh.

DEPUTY COMMISSIONER HARMON: You did the basic and the advanced Non-Violent Conflict Resolution in '98?

INMATE AVALOS: Yes, Sir.

DEPUTY COMMISSIONER HARMON: You did a 13-week Anger Management program that the counselor's touched on. That was back in '03.

INMATE AVALOS: Yes, Sir.

DEPUTY COMMISSIONER HARMON: And you did a Stress Management Program in '04.

INMATE AVALOS: Yes, Sir.

DEPUTY COMMISSIONER HARMON: I also found in '96 the Use of Meditation for Anger Management, a pastoral program through the church. That was back in '96?

INMATE AVALOS: Yes, the Zen Program.

DEPUTY COMMISSIONER HARMON: That was Zen, okay. I was trying to — okay. And now here we go with — one of my questions is — well let me see what we have here. You did a 12-step Workshop Book in '98 through the prison fellowship. You got a certificate of completion. And then back in '98 you did some AA work and your participation in any type of substance abuse has been somewhat sporadic. Am I wrong?

INMATE AVALOS: No, Sir. At that time, when I was attending those programs, I was attending them for the Board to receive a certificate — a chrono. And also learn, you know, from other people's stories as far as alcohol and abuse. But my — when I had my psych evaluation for my initial, she seen that I was attending the programs and advised that by me continuing going to these programs, it could hurt me in the long run as far as to the Board because they would see that I've been attending these programs for so long and assume that I did indeed have, you know, a problem with it. She goes, "If your crime wasn't related to alcohol or drugs or you don't think you are an alcoholic," she said, "It wouldn't be advisable to continue the program." She checked my Central file and saw that I was never disciplined for drug possession or alcohol possession or manufacturing alcohol.

DEPUTY COMMISSIONER HARMON: But alcohol did play a role in this crime.

INMATE AVALOS: Well, no. Like I said, that night we had a couple of drinks with dinner we didn't go out —

DEPUTY COMMISSIONER HARMON: Well, you know, that's kind of contrary to what the — you read the Probation Officer's report, right? What it basically says is that you were bar hopping in Mexico. Did you read it?

INMATE AVALOS: No. As far — I mean, when I came into the system, I came in, you know, just do my time. I didn't do no — as far as reading any reports — I am here to do, you know — I messed up, okay?

DEPUTY COMMISSIONER HARMON: When was the last time you did any substance abuse programming?

INMATE AVALOS: I couldn't — I think it was maybe 2000, 2001. But even — I went to some meetings but I wasn't there long enough to receive any chronos or nothing like that.

DEPUTY COMMISSIONER HARMON: Do you know the 12-steps?

INMATE AVALOS: No Sir, I don't.

DEPUTY COMMISSIONER HARMON: So you don't practice it?

INMATE AVALOS: No.

DEPUTY COMMISSIONER HARMON: Okay. I'm trying to get a handle on what it is that you've done. Let's see, disciplinary; I've got one 115, June 26^th, 1992 for failure to report.

INMATE AVALOS: Yes, Sir.

DEPUTY COMMISSIONER HARMON: Three 128's August 4^th of '93 was your last one, leaving work without permission. And if I remember right, that was — I think it was Mill and Cabinet, wasn't it?

INMATE AVALOS: Yes, Sir.

DEPUTY COMMISSIONER HARMON: Okay. So first thing I want to do is commend you.

INMATE AVALOS: Thanks.

DEPUTY COMMISSIONER HARMON: There's never been any violence, never been any weapons. And you haven't had a 115 since '92. So that's good.

[Thereupon the tape was turned over.]

DEPUTY COMMISSIONER HARMON: Going ahead here. Your participation in the TOT program?

INMATE AVALOS: The one that's (inaudible).

DEPUTY COMMISSIONER HARMON: That's what I thought. And that's what, back in '93? INMATE AVALOS: Yes, Sir.

DEPUTY COMMISSIONER HARMON: Okay. How about any other accomplishments? Have I missed anything?

INMATE AVALOS: No, that's about — that's about everything. I just like to express to the Panel that because of the limited resources that we have as far as self-help groups other than the, you know, the POP and the Board, trying to find any kind of — any other self-help group, I would be doing, probably — repeating the same programs just to continue these programs because they were limited to so many in this institution.

DEPUTY COMMISSIONER HARMON: Okay. I'm going to move on to your doctor's reports now. Before I do, I want to ask you a couple of really important questions. The first one is do you believe you pose a risk to the safety of the people outside of the prison walls today?

INMATE AVALOS: No, Sir.

DEPUTY COMMISSIONER HARMON: What do you believe makes you a different man today than the man who came into prison for the life crime?

INMATE AVALOS: Well, if we are going by — as far as suitability, my records speak for itself, okay? As far as the crime, I can't put a number or a time on what my sentence should be. What I did was terrible, you know. But if we are going by suitability, again, I could only say I'm no longer that person, you know. I have matured, you know, and I've learned a lot as far as, you know, within myself. Say if I — this incident ever happening — no, I feel confident enough to say that no, this will not never repeat itself ever.

DEPUTY COMMISSIONER HARMON: Okay, thank you. Let's go on to your doctor's reports. Now you've heard this before. You've heard this report that I'm going to start out with. I am going to take parts of your two most recent reports. The first one was from Dr. Nancy Van Couvering.

INMATE AVALOS: Yes, Sir.

DEPUTY COMMISSIONER HARMON: C-O-U-V-E-R-I-N-G, a forensic psychologist, from February 3 (phonetic). So I'm not going to try to repeat everything, but I do know that you and the Commissioner here covered the opening areas regarding your history. In your clinical assessment under Current Mental Status and Treatment Needs, the doctor writes under the heading of Conversation, "The inmate was attentive and curious during our conversation." In the heading of Affect, "He showed sadness and remorse when speaking of his crime. Affect regulation was appropriate." Under the heading of Insight, "The inmate's judgment and anticipation of consequences was good, considering his origins. His range of experience is limited, coming from a restricted background directly to prison." Diagnosis Axis I: No Diagnosis; Axis II: Personality Disorder, not otherwise specified; and Axis V: a GAF of 80, programming and successfully employed for six years. Then the doctor goes into the area that reviews the life crime with you, and then under the heading of Estimated Future Violence in the Community, "Although this scenery seems unlikely to be reproduced, the inmate's lack of sophistication could lead him vulnerable to other external pressures to act. Therefore, this inmate's potential for violence is unpredictable," and that was in '03 and the prior report was from — and the only other report I have is from Dr. Calix, I believe it's C-A-L-I-X. It's from November of '96. Taking parts of that report, he starts out with the inmate's description of the offense and in part here, he stated that he regrets taking her life, he felt the whole incident, "Happened fast, I feel sorry for her, I felt at that time, it was the right thing to do." Mr. Avalos reported he did not know why he did not more vigorously attempt to talk her out of killing herself or refer her to a mental health professional. He stated that he now feels very remorseful, prays a lot and in these prayers apologizes to God, the victim and her family. In the area of Past History, in part here it says he began using drugs at aged 16 and alcohol at 17. He stated he would generally drink on "special occasions" and after work, on occasion, would use methamphetamine. In the heading of Mental Status Examination, there were no signs of thought or mood disorder or other severe psychopathology. Insight was considered fair overall. Judgment was unimpaired. Diagnosis Axis I: Polysubtance Abuse, In Institutional Remission; Axis II: None; Axis V: a GAF of 80. Under Psychological Conclusions in the heading of General Conclusions, the diagnosed psychopathology is indirectly related to the commitment offense or possibly being under the influence of alcohol at the night of the crime. This did not directly determine the crime itself. The inmate has improved mildly from a psychiatric point of view since incarceration, and in the less controlled-setting such as a return to community, there has been an insignificant period of observation in order to accurately determine dangerousness at this time. In the heading of Suggested Actions, the inmate should continue to involve himself in all self-help programs available to him including substance abuse programs, such as AA and NA. He should also involve himself in any groups or programs, workshops that might involve him taking a closer look at his offense and examining commitment factors. At present, his version of the crime appears somewhat incredulous. Under Parole and Release heading, the inmate's violence prediction outside a controlled setting in the past was considered to have been average and is considered to have decreased and this inmate does not appear appropriate for parole consideration at this time, and that's with Dr. Calix. So what I have done there, Mr. Avalos, is I have taken parts of the only two doctors reports we've got on file, parts of your counselor's report and parts of your institutional adjustment. I may have inadvertently left findings that are very important to both of you and your counsel. I am going to return to the Chair here because we are going to go on to questioning. Before we do, is there anything that you wished to add to the areas that I have covered today?

INMATE AVALOS: No, Sir.

DEPUTY COMMISSIONER HARMON: Did we cover things okay?

INMATE AVALOS: Okay.

DEPUTY COMMISSIONER HARMON: And counselor?

ATTORNEY CHRISTENSEN: Well, one thing is Dr. Calix's report on his dangerousness. He said that perhaps with time and maturation he might at some point be a candidate for Cat X or T. That report was done in 1996 and since that time, there has been no Cat X or Cat T. So even if the inmate had wished to follow through with that recommendation, it is impossible for him to do that.

DEPUTY COMMISSIONER HARMON: Thank you.

ATTORNEY CHRISTENSEN: You're welcome.

DEPUTY COMMISSIONER HARMON: Anything else?

ATTORNEY CHRISTENSEN: No.

DEPUTY COMMISSIONER HARMON: I will return to the Chair.

ATTORNEY CHRISTENSEN: All right.

PRESIDING COMMISSIONER GARNER: All right. Mr. Avalos, did you believe Ms. Adame when she said that her religious beliefs wouldn't allow her to kill herself?

INMATE AVALOS: Yes, because she's Catholic. I'm Catholic, and suicide is very like, you know, wrong.

PRESIDING COMMISSIONER GARNER: Okay. One of the things that Commissioner Harmon was speaking about, it's in the probation report and what I want to do is I'm going to read it verbatim and it's that, "They had gone to dinner at a Tijuana restaurant and driven to Rosarita Beach where they went to a hotel bar. They were feeling the effects of their drinking and decided to sleep." So I guess, his comment about the issue of AA and NA — and just for the record, I believe that you were given bad advise by the person that suggested that you might not be appropriate for AA or NA. Even if you, let's say weren't a significantly impacted person, there are other aspects of those programs that can be of a tremendous value to you. So I will just put that on the record for you. That concludes my questions. Do you have follow-up questions, Commissioner?

DEPUTY COMMISSIONER HARMON: Just a couple, thank you. Now I'm shooting from the hip and I'm probably off-base, but you know when I reviewed this information in the short period that I've really had, it seems to me as if you and this young lady had more than a friendship relationship, that if I understand these documents correctly, she was dating at least another man.

INMATE AVALOS: Yes, she was. I was — we were just friends.

DEPUTY COMMISSIONER HARMON: But you guys have been going out steadily for nine months; haven't you?

INMATE AVALOS: Well — I mean, we went out like every other weekend, you know. She invited me to dinner on May of my birthday — the week of my birthday. She invited me to Las Vegas with some friends, you know —

DEPUTY COMMISSIONER HARMON: Doesn't it seem to be a little more than a friendship, not like girlfriend-to-girlfriend, but —

INMATE AVALOS: Well, if she had feelings toward me, you know — I mean, we'd always say that when we went anywhere, we were just friends.

DEPUTY COMMISSIONER HARMON: Weren't you — were you jealous that she was dating other people?

INMATE AVALOS: No, not at all.

DEPUTY COMMISSIONER HARMON: Do you guys ever argue about that?

INMATE AVALOS: No. I mean, like I said, we were just friends. I mean, I — I recall when I was being detained, they kept referring as my girlfriend and these rumors started (inaudible). No, were not boyfriend or girlfriend. DEPUTY COMMISSIONER HARMON: Okay. You are not on trial here. My last question, okay? Why not let her kill herself? Then you wouldn't be in prison.

INMATE AVALOS: (inaudible).

DEPUTY COMMISSIO NER HARMON: So why didn't you let her kill herself?

INMATE AVALOS: Again, at that time I wasn't thinking — I mean, that's no excuse. I mean I could've — when she gave me the gun, I could've walked away and, you know, take the gun with me and left her there, you know. There are many scenarios I could have done and I didn't. I failed. And I made a mistake.

DEPUTY COMMISSIONER HARMON: Well, it sounds to me as if I don't want to be your friend.

INMATE AVALOS: Well then, I understand. You know, you're entitled to that.

DEPUTY COMMISSIONER HARMON: Okay. Okay. I return to the Chair.

PRESIDING COMMISSIONER GARNER: Thank you. Mr. Sachs?

DEPUTY DISTRICT ATTORNEY SACHS: Yes. Could you ask the inmate, did it occur to him to call a crisis line or take other interventional procedures?

INMATE AVALOS: No sir, at that time I didn't.

PRESIDING COMMISSIONER GARNER: Did you hear his response Mr. Sachs?

DEPUTY DISTRICT ATTORNEY SACHS: Yes. But I don't think anyone has asked him yet if he knows that those things existed.

INMATE AVALOS: No, I didn't mean that I don't know it exists. I wasn't — I wasn't thinking about, you know, to do that.

PRESIDING COMMISSIONER GARNER: But you knew they existed?

INMATE AVALOS: Yes, Sir.

PRESIDING COMMISSIONER GARNER: Thank you.

DEPUTY DISTRICT ATTORNEY SACHS: Could you ask the inmate what did he think would happen at that time when he shot her himself?

PRESIDING COMMISSIONER GARNER: He is asking what did you think would happen to you as a result of her being shot?

INMATE AVALOS: Well after it happened — I mean, I knew what I did was — I mean, my conscience was all over me. I've said it time and time — learning from this that you could run from a lot of things but you can't run from your conscience. And that's the whole reason why, you know, the following day, during the detectives questioning, I admitted to what I did. And when I spent the next morning, when I was in jail, I felt like I got this big old thing off my chest and I fully regret the crime 100%. The time I spent in prison, I could honestly say that I don't — I don't regret it because I have learned a lot, you know. And I'm sorry for what I did, you know. But my time in prison, I learned — I appreciate it because I don't regret the time I spent in prison.

PRESIDING COMMISSIONER GARNER: Thank you.

DEPUTY DISTRICT ATTORNEY SACHS: No other questions.

PRESIDING COMMISSIONER GARNER: Thank you. Ms. Christensen, any questions you'd like to ask?

ATTORNEY CHRISTENSEN: Did you ask her where she got the gun?

INMATE AVALOS: She had told me that — I asked her, "Whose was it?" And she said — I believe she said it was her brother-in-law's.

ATTORNEY CHRISTENSEN: Had she talked to you about suicide prior to that night?

INMATE AVALOS: I've heard about something similar. I am not sure because her friends that we, you know, that she had — we never really (inaudible). And as far as her confiding to me about that — I mean about her doing it, no. About the subject of suicide (inaudible) she had planed.

ATTORNEY CHRISTENSEN: Have you had any experience being around people who were depressed?

INMATE AVALOS: No, Sir — no Ma'am.

ATTORNEY CHRISTENSEN: To date, do you know what depression is?

INMATE AVALOS: I have read a lot about it. I know that there is no cure for it meaning, you know, you've got to get treatment, you know, by a physician as far as counseling or what not and some medications.

ATTORNEY CHRISTENSEN: Did you see yourself as a rescuer?

INMATE AVALOS: I thought of myself as — not as rescuer, but somebody, you know — someone to ease the pain.

ATTORNEY CHRISTENSEN: So today, what would you do to her?

INMATE AVALOS: Oh, I wouldn't take the life for one. I would talk to her, get her help. Let her know that life is so much more. I mean, I (inaudible) not to take it for granted no more.

ATTORNEY CHRISTENSEN: All right, thank you. There's no further question.

PRESIDING COMMISSIONER GARNER: All right. Very good, thank you. Mr. Sachs, your closing please.

DEPUTY DISTRICT ATTORNEY SACHS: Yes. In behalf of the people of the State of California, we would respectfully oppose parole. We do feel the release of this inmate is an unknown (inaudible) and would pose an unreasonable risk of danger to society. I believe for a fact that he acted upon his desire and went ahead and used this weapon in an intentional manner to commit a homicide. It shows a certain defect in judgment and character that cannot be corrected merely by serving time in prison. And I would indicate that it would take a longer period of time under closer observation, greater therapy, greater insight to change this sort of thinking or behavior in any meaningful way in such that the Board can say is without repeat, again in an uncontrolled setting, free from incarceration and with the stressors of society of conduct. And I would simply submit that the fact of the crime itself, the fact that the homicide speaks for itself and will continue to do so for quite some time. For that reason, we will respectfully oppose parole.

PRESIDING COMMISSIONER GARNER: Thank you. Ms. Christensen?

ATTORNEY CHRISTENSEN: This is not a sophisticated criminal seating before you. In fact, Dr. Van Couvering mentioned the lack of sophistication on the part of Mr. Avalos. This is an extremely unusual crime that we don't come across very often. Mr. Avalos is someone with no prior criminal history. He was in a situation that really is a one-time event. Under different circumstances this could not have occurred. But he has a conscience and he quickly realized that what he did do was wrong. He regrets the crime, but he does not regret coming to prison. He feels that he has benefiting from what he has learned in here and very much to his credit, he certainly has used his time productively. He has a prior vocation and he has taken a number of self-help classes. He continues to improve himself even after the crime day. His current certificate that he brought in has been positive and this has been an ongoing program for him. He has a GED. His job skills are very high-quality. Any inmate who has worked in the Optical Lens Lab, it is not for your average inmate. I think those who make it are a cut above in terms of intelligence and responsibilities. What he has accomplished as a Customer Service Specialist and in the Electronics Area as well, all of those are very viable job skills. He has a highly-supportive family and he has a place to go. He can live with his parents. He has a family support there. He has definitely learned and grown from his experience and appears to have utilized all the useful (inaudible) in the institution to improve himself in every possible way. He has not been a problem here for management in the prison. He had only one 115, that was 14 years ago. It is not for violence. Everything about him shows that this is someone who is quite serious about programming. He shows to be conforming to the rules and regulations in here and certainly that would carry over to his life on the outside. He believes that generally he has acquired these skills and self-knowledge (inaudible) so that he would not react the same way were such a situation should reoccur, which is extremely unlikely. Mr. Avalos had no criminal background whatsoever. He is showing that he could be a good citizen here in prison and he would be a good citizen working to be paroled. So, for all of those reasons, he is asking for a second chance at this time. Thank you.

PRESIDING COMMISSIONER GARNER: All right. Thank you very much. Mr. Avalos, this is your opportunity to address the Panel on the subject of your suitability for parole.

INMATE AVALOS: Well I just would like to, if I could — may address something to the District Attorney that he mentioned as far as me spending, you know, more time in here. What would be — I mean, the length of time, in his opinion as far as —

ATTORNEY CHRISTENSEN: Mr. Avalos, you can't ask questions.

PRESIDING COMMISSIONER GARNER: This is a closing statement.

ATTORNEY CHRISTENSEN: It's your time to make a closing statement. It should be restricted to why you feel you are suitable for parole.

INMATE AVALOS: Okay, my apologies. Again, my record speaks for itself. I have learned a lot since the time I have been incarcerated. I feel that I could help a number of people from the experiences that I learned from the past as well as the present, you know. I apologize to Mr. Mrs. Adame for what I did. There is nothing I can do to change that, you know. And I hope that someday, you know, they could find it in their hearts to forgive me and that's it.

PRESIDING COMMISSIONER GARNER: Okay, thank you. All right. Before I hear from Mr. Mrs. Adame, let me put on the record that according to Penal Code Section 3043, you have the right to adequately and reasonably express your views concerning the crime and the person responsible. Which one of you wanted to go first? Mr. Adame?

MR. ADAME: Thank you, Sir. I want to talk (inaudible). I want to talk straight from the hip. Mr. Avalos come saying my daughter asked him to take her life. Mr. Avalos has asked my daughter to get a video camera and take some pictures (inaudible) about regulation that wasn't met. You also got her on (inaudible), Mr. Avalos, three different times. My daughter was trying help out Mr. Avalos because he was a methamphetamine user. My daughter was used (inaudible). Whatever Mr. Avalos says is a lie because he took our video camera — what have you done with that video camera? The gun, a 250-casette — cd's that my daughter collected. She told — he told the cops that he ran. He didn't ran. Let me tell you something, for a year after this happened, my wife and I had a nightmare. Everyday, sweaty and that madman was telling me what happened. I went to El Paso to get away from it. In El Paso I had two nightmares and then they stopped. When I came back, three or four months, I went into the (inaudible). The preachers told me the truth. It was just as (inaudible) as I had. This guy shot her in the back. He claims himself a man. He is not a man. If my daughter wanted to kill herself, there's a lot of ways she could have done it. Not on the back. That's a man? And he knows, I talked to him three or four times in my house. He knows what I'm about. He waited until I went to our home so he could take advantage of it. He lied to the police, he is lying now and he will always be lying. After he faces the fact, I'm not going to be a part of it. Second of all, there is no, I guess, no holiday, no birthday that we can enjoy. We cannot enjoy it because Alice is missing. And I am a man, I am supposed to have protected her. And I pray to her every night to forgive me. I didn't protect her. I claimed that's my fault because I knew him and I should-have known better because I come from the streets, too. But this guy was just out of it. No respect for nothing. And as far as forgiving you, I forgave you because I'm from the Lord. But don't think that I am going to just leave you alone. My son that's in the army, he is a Staff Sergeant, he told me to talk to the Panel, too. He don't want him out because he took his sister that loved him so much. He was younger then. All our holidays, all our — you know what, I've been three times to my graveyard because I don't want to see my wife crying. Three times in 14 years and those were the first three times that I went. I have to see my (inaudible) and my wife (inaudible) for a guy that shot my daughter and lied. If he hadn't got in a (inaudible) he wouldn't told the truth. So don't play no part. I don't play that game. That's what I have to say.

PRESIDING COMMISSIONER GARNER: Thank you. Mrs. Adame?

MRS. ADAME: It has been 15 years since my daughter's death. They say time heals all wounds but the pain and emptiness in my heart quite never goes away. And I have a different picture altogether for that night that she left, that I saw her for the last time. She had asked if she could take her brother, her 13-year-old brother, with her because she wanted to come back home early. But knowing that my mother had died just a month prior and that my 73-year-old father had a touch of dementia and I had a church meeting to go to, I had denied her going. I had denied her request to let my son go so that he could stay with my father. That night, she had taken the camcorder, and she had gotten paid. She also worked at Lifeline, which helps all people of different phases in their lives. And we had planned the summer, she had applied for a student loan that had come through and we had planned on her going to school after the summer and she was all excited. We had even made plans to go in July to Yosemite. So I have to live with the guilt for the rest of my life; maybe, had I let my son go, maybe she would have been here today. But then the worst comes to my mind, maybe I would have had two children gone from my life forever. And if it — I will never accept the fact that she wanted to take her life for the simple fact that her purse was missing and the camcorder were missing also. Why did they have to disappear if she just wanted to take her life when we had planned our summer and when she was so excited about going to school in the fall? He has robbed me of having a happy, fulfilled life without her. And at this time, I would like to also — like to read this request for parole being denied to Mr. Avalos, CDC H-18640, CR-124268 from our younger daughter and have it kept there on her file. So I'm reading this letter on behalf of my daughter and on behalf of all of us for we all feel the same way.

"My name is Cristina Diane Adame. I am the younger sister of Alicia Isabel Adame. I am unable to attend this Parole Board due to the fact that I am currently serving my country overseas. However, I would like this letter to be read. I feel as if it is my duty and obligation to be the voice of my sister Alicia I. Adame. I also feel as a member of the United States Armed Forces who currently serves, fights and defends the people of the United States, the Judicial System and United States Constitution and all the freedoms and benefits of being a United States Citizen, I must state that I am appalled and disgusted that Mr. Victor Avalos is being considered for parole. Alicia I. Adame, my sister, was a kind, loving and beautiful person who had a right to know her nephews and nieces, who had a right to celebrate and enjoy holidays with her family, who had a right to live a happy and productive life in this world and that right was stolen from her by Mr. Victor Avalos. Before I begin to express my feelings and how this tragic event has changed my life, I ask that you treat this case with respect, as if this were one of your loved ones and not just another case number. From the beginning of this tragic event, and for the rest of my life, things are going to be different. When a loved one is murdered, or taken from you in an unnecessarily violent manner, it changes your life forever. I feel like my life is over, like I have been robbed and violated in the worst way and I cannot get through life or even an ordinary day because the pain is so severe. I feel at times, like my life is a disaster journey, completely upside down and I am forced to go on and put it back together without any help, knowledge and experience to get me through it. This tragic event has affected the way I live my life and how I raise my children. I am constantly worried that someone is going to harm them. I long for the day when my life will be normal again but the fact remains it will never be normal again because my sister will never be here in a physical sense. I, Cristina Diana Adame ask the Parole Panel to remember that my family and I are the victims in this case and we should not have to be victimized all over again. I ask the Parole Panel not to release this criminal into society and that Mr. Victor Avalos be denied parole. Very Respectful, Christina Diane Adame."

PRESIDING COMMISSIONER GARNER: Very good, thank you. It is 4:18 p.m. and we will recess for deliberation.

RECESSCALIFORNIA BOARD OF PAROLE HEARINGS DECISION

PRESIDING COMMISSIONER GARNER: All right. It is 4:38 p.m. in the matter of Victor Avalos, H-18640. Mr. Avalos, the panel has reviewed all the information received from the public and relied on the following circumstances in concluding that you are not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. This board reminds you this is your first subsequent, so we continue to consideration (verbatim) a number of factors, we start with the commitment offense. The panel noted that the offense was carried out in an especially cruel manner. The victim, Alicia Adame, 23, was shot and killed with a 9mm semi-automatic. The offense was carried out in a very dispassionate manner. You were in a position of trust. You indicated today that you didn't believe that she would shoot herself because of religious beliefs and she was shot anyway. The motive for this, the record before us today is — the only thing that the Panel could conclude is this is a very inexplicable crime. Conclusions were drawn from the statement of facts that were taken from the April 2006 report that was prepared for the Board Calendar.

"On June 19, 1991 two officers from the San Diego Harbor Patrol, discovered the body of 23-year-old Alicia Adame while patrolling the parking lot of Pepper Park in National City. Investigation determined that the victim had died of a single gunshot wound to the back of her head. The detectives learned that the victim had been last seen in the company of defendant Victor Avalos. On further investigation and interview, Avalos told the detectives that he and the victim, Alicia Adame, had driven to his home in National City to visit friends in San Isidro. Avalos stated that Alicia Adame was depressed and suicidal about family problems. Avalos stated Alicia Adame removed the black pistol from her purse and told him she wishes to be in heaven with her grandmother, but her religious belief prevented her from committing suicide. Avalos stated Alicia Adame convinced him that that if he did not kill her she would take her own life. Avalos shot Alicia Adame with one shot in the back of her head and she slumped from the seat of the truck."

The Panel noted and considered that you did not have any prior record as a juvenile or as an adult. With respect to your institutional behavior, the Panel has noted that you have not sufficiently participated in beneficial self-help programs and the numerous references throughout the material before us with references to drug and alcohol is a compelling reason for the Panel to conclude that this is an area that you need to address. Misconduct while incarcerated includes the three 128, 8 counseling chronos, the last being August of 1993 and this is for leaving a work area without permission and to your credit only one serious 115 disciplinary record and this was in June of 1992 for a failure to report. The Panel noted and considered the psychological report that was prepared by Dr. Van Couvering, February of 2003, and feels that the report is unfavorable to the granting of parole. And that the doctor indicates that your lack of sophistication could leave you vulnerable to other external pressures to act and that your potential for violence is unpredictable. And that we have chosen to determine that the report is unfavorable, we have asked that a new report be prepared for your next hearing and that request has been completed and will become a part of the record. As far as your Parole Plans, we noted that you do have a realistic Parole Plans with respect to residential offer in the county of your last legal residence. The Panel noted that you have marketable skills and that's all that's required. If the job offer was present, it'd make it certainly more attractive but not required. We wanted to put that on the record for you. 3042 notices from the Penal Code, the District Attorney's Office from San Diego appeared via video and indicated opposition to the granting of parole. We also considered the victim's next of kin's verbal statements and the letter that was received from Cristina Adame. In a separate decision, the Hearing Panel finds that you have been convicted of murder and it is not reasonable to expect that parole would be granted under hearing during the next three years. The specific reasons for these findings are that the offense was committed in an especially cruel manner, specifically Alicia Adame, 23 years of age at that time, was shot and killed by a single shot in the head of a 9mm. The Panel noted that the offense was carried out in a very dispassionate manner. The victim was shot, she was left in the vehicle, items that were in the vehicle that belonged to her were discarded as you fled the scene, and also today the Panel noted in response to the question whether you checked to see if she was still alive, there was no indication that you did do that. Again, in a separate decision the Panel noted that the motive for this crime from everything that we see on the record is inexplicable. We also considered in a separate decision the Psychological Report by Dr. Van Couvering, from February of 2003, indicating a need for a longer period of observation and evaluation. And that you haven't completed the necessary program that's going to be essential to your adjustment and you need additional time to gain the programming. This is the area or self-help associated with the numerous references to drug and alcohol that are in the record. Therefore, a longer period of observation and evaluation is going to be required before the Board could find that you are suitable for parole. We are going to encourage you to continue to remain disciplinary-free, to get yourself involved in self-help and to the extent that the self-help programs are not available, do self study. Take the initiative and just don't come in to the next Panel and say, "Well, I've been on the waiting list," because you are going to get the question, "Well, is there anything else you could do?" So self-help, document it and bring something back, whether it's a book report, whether it's after reviewing something that you gained some new insight, give the Panel something to work with when you come back for the next time and to continue to earn positive chronos. With that, I will ask Commissioner Harmon if there is anything additional he would like to offer today.

DEPUTY COMMISSIONER HARMON: I think you covered it very well. And I wish you luck, Sir. INMATE AVALOS: Thank you.

PRESIDING COMMISSIONER GARNER: All right. It is 4:45 now, and that concludes this hearing. Good Luck, Sir.

INMATE AVALOS: Thank you.

PAROLE DENIED THREE YEARS THIS DECISION WILL BE FINAL ON: DEC15 2006 YOU WILL BE PROMPTLY NOTIFIED IF, PRIOR TO THAT DATE, THE DECISION IS MODIFIED.

CERTIFICATE AND DECLARATION OF TRANSCRIBER

I, ROSALIE OROSA, a duly designated transcriber, VINE, MCKINNON HALL, do hereby declare and certify under penalty of perjury that I have transcribed tape(s) which total one in number and cover a total of pages numbered 1 — 61, and which recording was duly recorded at CALIFORNIA STATE PRISON, at SOLANO, CALIFORNIA, in the matter of the SUBSEQUENT PAROLE CONSIDERATION HEARING of VICTOR AVALOS, CDC No. H-18640, on August 17, 2006, and that the foregoing pages constitute a true, complete and accurate transcription of the aforementioned tape(s) to the best of my ability.

I hereby certify that I am a disinterested party in the above-mentioned matter and have no interest in the outcome of the hearing.

Dated November 8, 2006, at Sacramento County, California. VINE, MCKINNON HALL

Rosalie Orosa Transcriber

EXHIBIT I

Prison Placement:Custody Level:Work/Training/Program Assignment:Vocational Instruction:Academic Education:Disciplinary Violations:Adverse Chronos:Laudatory Chronos:Significant Events:Prison Placement:Custody Level:Work/Training/Program Assignment:Vocational Instruction:Academic Education:Disciplinary Violations:Adverse Chronos:Laudatory Chronos:Significant Events:Prison Placement:Custody Level:Work/Training/Program Assignment:Vocational Instruction:Academic Education:Disciplinary Violations:Adverse Chronos:Laudatory Chronos:Significant Events: BOARD OF PRISON TERMS STATE OF CALIFORNIA LIFE PRISONER: POSTCONVICTION PROGRESS REPORT DOCUMENTATION HEARING PAROLE CONSIDERATION HEARING PROGRESS HEARING INSTRUCTIONS TO CDC STAFF: DOCUMENT EACH 12-MONTH PERIOD FROM THE DATE THE LIFE TERM STARTS TO PRESENT. TO BPT STAFF: FOR EACH 12-MONTH INCREMENT APPLY THE GUIDELINES UNDER WHICH THE PAROLE DATE WAS ORIGINALLY ESTABLISHED, i.e., 0-2 MONTHS FOR PBR AND 0-4 MONTHS FOR BPT. SEE BPT 2290 — 2292, 2410 AND 2439. POST CONVICTION CREDIT REASONS YEAR BPT PBR 12/26/96 1. to 12/25/97 Remained at Richard J. Donovan Correctional Facility (RJDCF), Level III, general population (GP). 2. Remained Medium A custody. 3. Remained assigned in Prison Industries Authority (PIA), Optical Lens Lab, as a Shipping Clerk, receiving satisfactory to above average work reports. 4. None noted. 5. None noted. 6. None noted. 7. None noted. 8. Attended Alcoholics Anonymous (AA) program from December 26, 1996 through December 25, 1997. Chronos stated he participated actively with group discussions and has shown a desire to improve himself. He received a letter of recommendation, dated January 21, 1997, from Optical Lab Supervisor Siva Arulampalam. It referenced his working abilities and possible future employment in the optical field. 9. On January 27, 1997, Avalos appeared before the Board of Prison Terms (BPT) for his Initial Documentation Hearing. The Board recommended he remain disciplinary-free, upgrade vocationally and educationally, continue active participation in AA/NA, and participate in all self-help programs. 1. 12/26/97 to Remained housed at RJDCF, Level III, GP. 12/25/98 2. Remained Medium A custody. 3. Remained assigned in PIA, Optical Lens Lab, as a Shipping Clerk, receiving satisfactory to exceptional work reports. 4. None noted. ORDER: BPT date advanced by _____months. BPT date affirmed without change. PBR date advanced by _____months. PBR date affirmed without change. SPECIAL CONDITIONS OF PAROLE: Previously imposed conditions affirmed. Add or modify.____________________________________________________________________________________________ Schedule for Progress Hearing on appropriate institutional calendar. 5. None noted. 6. None noted. 7. None noted. 8. Avalos attended AA program from December 26, 1997 through December 25, 1998. On February 7, 1998 through December 13, 1998, he participated and completed six courses in Basic Non-Violence and Conflict Resolution. On March 25, 1998, he received a certificate for Life Plan for Recovery, a 120- hour course on substance abuse education. 9. None noted during this period. 12/26/98 1. to 10/19/99 Remained housed at RJDCF, Level III, GP. On January 19, 1999, he appeared before Unit Classification Committee (UCC) for his annual classification. His classification score (CS) reduced from 29 to 23, Level II. He was referred to the Classification Staff Representative (CSR) for transfer with the recommendation of California State Prison-Solano (CSP-SOL) II/Avenal State Prison II. He was received at CSP-SOL, Level II, on May 5, 1999. ORDER: BPT date advanced by _____months. BPT date affirmed without change. PBR date advanced by _____months. PBR date affirmed without change. SPECIAL CONDITIONS OF PAROLE: Previously imposed conditions affirmed. Add or modify. Schedule for Progress Hearing on appropriate institutional calendar. 2. Remained Medium A custody. 3. Avalos continued to work in PIA Optical until his transfer. On May 11, 1999, UCC acted to place him on Vocational Carpentry/Lens Lab waiting list. 4. On August 4, 1999, he received an assignment in Vocational Lens Lab. No work reports on file; however, in a telephone conversation, Optical Lens Lab Supervisor Allan Cupps stated "Avalos is an excellent worker and will be promoted to PIA Optical Lens Lab by October 18, 1999." 5. None noted. 6. None noted. 7. None noted. 8. On January 4, 1999, he completed a 22-hour Conflict Resolution workshop given by Hands of Peace/Friends outside. ORDER: BPT date advanced by _____months. BPT date affirmed without change. PBR date advanced by _____months. PBR date affirmed without change. SPECIAL CONDITIONS OF PAROLE: Previously imposed conditions affirmed. Add or modify. Schedule for Progress Hearing on appropriate institutional calendar. 9. None noted. Reviewed by: 10-21-99 _________________________ M. TAN DATE Correctional Counselor II ORDER: BPT date advanced by _____months. BPT date affirmed without change. PBR date advanced by _____months. PBR date affirmed without change. SPECIAL CONDITIONS OF PAROLE: Previously imposed conditions affirmed. Add or modify. Schedule for Progress Hearing on appropriate institutional calendar.

EXHIBIT J

LIFE PRISONER EVALUATION REPORI INITIAL PAROLE CONSIDERATION HEARING FEBRUARY 2003 CALENDAR AVALOS, VICTOR H-18640

I. COMMITMENT FACTORS:

A. Life Crime:

On December 13, 1991, Avalos pled guilty to Murder 2^nd Degree, Penal Code (PC) 187(a) and PC 12022.5(a) Use of a Firearm, in San Diego County, Case Number #CR124268. Avalos was sentenced to 20 years to Life. Minimum Eligible Parole Date (MEPD): March 20, 2004.

1. Offense Summary:

On June 19, 1991, two officers on foot patrol from the San Diego Harbor Patrol discovered the body of 23-year old Alicia Adame (victim) by the boat-launching ramps, while patrolling the parking lot of Pepper Park in National City. Officers approached a pickup truck, which was parked in the lot, and discovered that blood was dripping to the ground from the driver's door. Inside the truck they found Alicia Adame slumped to her side behind the wheel. Investigation determined that the victim had died of a single gunshot wound to the back of her head. The bullet exited her skull through the right eye and had gone through the windshield of the truck. A camper shell was mounted on the back of the truck, and a .9 mm shell casing was found in the camper area. There was an open crawl space between the camper area and the cab of the truck. The detectives learned that the victim had last been seen in the company of defendant Avalos. Upon further investigation and interview, Avalos told the detectives that he and the victim, Alicia Adame, had driven to his home in National City and had visited friends in San Ysidro. On June 18, 1991, they had gone to diner in a Tijuana restaurant and had driven to Rosarito Beach, where they went to a hotel bar. They were feeling the effects of their drinking and they elected to sleep in his vehicle overnight. At approximately 4:00 a.m., they returned to National City. After returning to his home, he told detectives, that Alice Adame asked him to drive with her somewhere where they could talk. She drove her truck to the Pepper Park area with him as a passenger. He stated Alicia Adame was depressed and suicidal about family problems; that her father was in a residential drug treatment program and her grandmother had recently passed away. During the conversation, Avalos stated that Alicia Adame removed a black pistol from her purse and told Avalos that she wished to be in heaven with her grandmother. However, due to religious beliefs, it prevented her from committing suicide. Avalos stated that the victim convinced him that if he did not kill her, she would take her own life. Avalos stated that the victim told him to take her purse and video camera so it would look like a robbery. Avalos took the pistol and got in the rear of the truck as the victim positioned herself in the center of the truck seat. Avalos shot Alicia Adame with one shot into the back of her head and she slumped in the seat. Items he took were disposed of and he went home. Homicide detectives indicated that Avalos' statement was accurate and that Avalos committed the crimes as described. (Information taken from pages 2 through 5 of the Probation Officer's Report (POR) dated December 13, 1991.)

2. Prisoner's Version:

Avalos stated that he and Alicia Adame had spent the previous evening prior to the incident in Mexico, where they had gone to a series of bars and they eventually slept in the car prior to returning to the United States. Alicia had been depressed for a very long time about her father's drug involvement and her grandmother passing away about a month earlier. Avalos stated that he had known her for approximately two years and depression was common. On the day of the incident, Alicia and Avalos came across the border and parked near the boat launching ramps at Pepper Park in National City. Once they parked, they began talking and the subject of her ex boyfriend came up and she became very depressed. Avalos felt bad for her and understood her depression due to the fact that Avalos had also experienced depression. Alicia was very different since her grandmother died, but she didn't seem suicidal. However, it shocked him when she pulled out the gun. She seemed tired of living and expressed it emotionally. Alicia was sitting at the driver side and Avalos at the passenger side. She was unable to shoot herself, due to religious beliefs. She asked Avalos to help her, at which time she gave him the gun. He exited the vehicle and Alicia positioned herself in the middle of the seat. Avalos entered the back of the cab and closed his eyes and fired a shot. He placed a towel over her head once her body slumped over and then grabbed some items and left.

B. Aggravating Circumstances:

Defendant had the opportunity to prevent the occurrence of this crime, but he instead completed his action of shooting the victim in the head and causing death to the victim.

C. Mitigating Circumstances:

The inmate has no history of criminal behavior.

II. PRECONVICTION FACTORS:

1. Juvenile Record: None.

2. Adult Convictions:

The instant offense of PC 187(a), 2^nd Degree Murder and Use of Firearm, PC 12022.5(a).

3. Personal Factors:

Avalos was born in San Diego, CA., on May 23, 1969, to Teresa Hernandez Avalos (housewife) and Gary S. Avalos (solar turbines plan) now retired. Both parents are currently residing at 418 G. Ave., National City, CA. 91950; telephone number (619) 477-0492. Inmate Avalos is one of five children born to Mr. and Mrs. Avalos. All five sisters and brothers reside in the San Diego area. Avalos remembers his childhood as being a strict Mexican cultural upbringing.

Avalos was raised in the San Diego area and dropped out of high school in 1986 and obtained several jobs. In 1989, Avalos entered the Job Corp, where he obtained a Certificate for Mill and Cabinet and obtained his GED, and continued to be a student until 1991, when the instant offense occurred. Avalos has been incarcerated for over eleven years and is currently working in the Prison Industry Authority (PIA) Lens Lab.

III. POSTCONVICTION FACTORS:

On December 26, 1991, Inmate Avalos was received at Richard J. Donovan-Reception Center (RJD-RC) for processing. On February 11, 1992, he was transferred to Calipatria State Prison. On March 2, 1992, Unit Classification Committee (UCC), Facility B, established Close Custody with Classification Score (CS) of 67 and placed him on the Support Services and Vocational Eyewear waiting lists. On June 16, 1992, Avalos was reassigned to Pre-Vocational Mill Cabinet. On March 8, 1994, UCC removed from Mill and Cabinet, due to completion of course, and placed him on the Adult Basic Education-II/III (ABE-II/III) and Support Services waiting lists, retaining his WG/PG at A1A, at which time Close B Custody was reduced to Medium A. On March 30, 1994 assigned to Vocational Electric. On March 31, 1994 he was unassigned from Vocational Electric and placed on the ABE-II due to medical. On August 11, 1995, Avalos was transferred to Ironwood State Prison with CS of 49 and Close B custody. On August 25, 1995, UCC reduced custody to Medium A. On March 19, 1996, Avalos was transferred to RJD-CF with CS of 45. Once at RJD, Avalos continued his Prison Industry Authority (PIA) Optical trade. He received his 1^st Documentation Hearing, by the Board of Prison Terms (BPT) on January 28, 1997, evaluating his institutional program. On May 5, 1999, he transferred to CSP-SOL-II with CS of 23 and was placed on the PIA Optical program with positive behavior. On January 20, 2000, he appeared before the BPT for his 2^nd Documentation Hearing to evaluate his institutional program. During the course of his incarceration, his CS has decreased to 0. However, due to New Transition 840, New Placement Score will change on his Annual Review to 19, due to Life Term.

Disciplinary-History:

CDC 115, 6/26/92, Failure to Report to Class. Found guilty and assessed 30-days loss of credit-counseled and reprimanded regarding his responsibilities.

CDC 128-A, 4/27/92, Counseling Chrono due to Disobeying Orders to remove the covering placed over cell window.

CDC 128-A, 8/4/93, Counseling Chrono for Leaving Assignment without Permission.

During his incarceration, Avalos' work reports have ranged from satisfactory to exceptional with the exception of 4/26/98 to 6/26/98, which rated him as below average to satisfactory. Avalos has received several Laudatory Chronos and has attended several self-help therapy programs including Alcoholics Anonymous, Narcotics Anonymous, and Anger Management, during his incarceration. He has also received several Certificates of Achievement, Certificates of Appreciation and letters of commendation. See Postconviction Progress Report for details.

IV. FUTURE PLANS:

A. Residence: Avalos plans to reside with both parents, Teresa and Gary Avalos, at 418 G. Ave., National City, Ca. 91950; telephone number: (619) 477-0492.

B. Employment: To obtain any available job in shipping and receiving in Optical Department or the first available employment to be self-sufficient.

C. Family Resources: Family will support until he is able to become financially stable to be self-sufficient.

V. SUMMARY:

A. Considering the commitment offense, prior record and prison adjustment, this writer believes the prisoner would pose a moderate degree of threat to the public at this time, if released. Avalos has been able to adjust very well to his institutional program with minimal disciplinary and has attended vocational and received several chronos indicating his progress.

B. Prior to release, the prisoner could benefit from continuing to be disciplinary-free, continuing to excel in his job assignment and continuing to participate in self-help groups when available.

C. This Board Report is based upon three hours of review of the Central-File, interview with Inmate Avalos, incidental contact for approximately one year. On October 28, 2002, Inmate Avalos received an Olson Review in preparation for his Initial Consideration Hearing.

VI EFFECTIVE COMMUNICATION PER ARMSTRONG REMEDIAL PLAN:

No accommodation for the purpose of effective communication was required per the Armstrong Remedial Plan (ARP).

EXHIBIT KCALIFORNIA STATE PRISON — SOLANO Vacaville, CaliforniaPSYCHOLOGICAL EVALUATION FOR THE BOARD OF PRISON TERMSPSYCHOSOCIAL ASSESSMENT

I. IDENTIFYING INFORMATION: The inmate is a 33-year-old, single Mexican male born on May 23, 1964. He is serving a 20 year to life term for Second Degree Murder. His sentence start date was on March 21, 1994. His MEPD is March 20, 2004. He has 19 points and is on level 2. The inmate has no tattoos or scars and he denies gang affiliation. He identifies his religion as Catholic. The sources of information for this report were an interview, a review of his C-File and a review of his medical file.

II. DEVELOPMENTAL HISTORY: The inmate was born in San Diego to an intact family. When the inmate was conceived, his father was 50 years old and his mother was 30 years old. He described his father as being very strict, and forbidding too much contact with the outside world. This was to the extent that the inmate was not allowed to go on school field trips or spend the night at cousin's houses. The inmate said he had friends at school, but after school he basically stayed home. He denied any natal, perinatal, or early developmental problems. He denied any early medical problems. He also denied fire setting, enuresis, animal torture or risk taking. He said he was neither a bully nor the victim of abuse.

III. EDUCATION: The inmate dropped out of school in the 11th grade to work. He later earned a GED. He never required special education. Currently, he is employed in the lens lab. He is very interested in learning more about outreach for young people. He is wait-listed for the POP program.

IV. FAMILY HISTORY: His mother is now 54 years old. She is a housewife who recently earned her U. S. citizenship. His father is now 84 years old and is a retired mechanical engineer for General Dynamics. The inmate has two brothers and three sisters and he is the second from the youngest in the birth order. He denied any criminal history, addiction, or mental health problems in his immediate family. He says his current relationships with his family are "fine". His parents still live in Southern California so it is difficult for them to visit. Occasionally, his niece brings his mother to visit.

V. PSYCHOSEXUAL HISTORY: The inmate reported that he experienced normal heterosexual development. He complained of no sexual dysfunction.

EXHIBIT L

VI. MARITAL HISTORY: The inmate was never married.

VII. MILITARY HISTORY: The inmate did not serve in the military.

VIII. EMPLOYMENT/INCOME HISTORY: In the community, the inmate was trained for one year as a carpenter. In prison, he has worked for six years in lens labs. He works in the shipping/receiving section and enjoys this work very much.

IX. SUBSTANCE ABUSE HISTORY: Although the inmate has been diagnosed in the past as being polysubstance dependent, this apparently was an error. The inmate said that he experimented with drugs at the age of 16 and 17, but never was a habitual user. He did enjoy drinks with dinner on occasion. His life crime involved neither alcohol nor drugs.

X. PSYCHIATRIC AND MEDICAL HISTORY: The inmate does have a history of homicidal behavior. His life crime is second degree murder. There is no other record of violence either in or out of prison. The inmate has never had a psychiatric diagnosis. He denied any serious accidents or head injuries. He denied seizures or other neurological conditions. He denied any disabilities or significant impairments. He does not have a history of prescribed psychotropic medication. Currently, he is being checked for diabetes because his father and brother both have histories of this disease.

CLINICAL ASSESSMENT

XI. CURRENT MENTAL STATUS/TREATMENT NEEDS:

Physical: The inmate is a Hispanic male who is 5 feet 6 inches tall and weighs 175 pounds. He appears to be his chronological age. He is quite well nourished. Hygiene, grooming, eye contact, and level of consciousness were all within normal limits.

Movement: Gestures were fluid. Goal-directed movement was well coordinated. The inmate denied any movement disorders.

Conversation: The inmate was attentive and courteous during our conversation. He observed appropriate turn-taking. Speech articulation, volume, and melody were within normal limits. Although he is bilingual his first language is English and his speech is not accented.

Thinking: Thought patterns followed normal channels. The breadth of his thought content suggested that his IQ was average or above. He was oriented to person, day, date, time, and place. Immediate memory was intact.

Affect: The inmate is emotionally adjusted to prison life, but would prefer to be in the free world. He showed sadness and remorse when speaking of his crime. Emotion was expressed in gestures, facial expressions, and voice. There was appropriate flexibility in responding to topics of conversation. Affect regulation was appropriate. Intensity and range were within normal limits.

Perception: The inmate denied hallucinations and delusions.

Insight: The inmate's judgment and anticipation of consequences was good, considering his origins. His range of experience is limited, coming from a restrictive background directly to prison. This naivete led to tragic consequences in his life crime.

XII. DIAGNOSIS (DSM IV-TR):

Axis I: 71.09 No diagnosis. Axis II: 301.9 Personality Disorder NOS. Axis III: No known medical conditions. Axis IV: Incarcerated. Axis V: GAF 80. Programming and successfully employed for six years.

The inmate's current level of care is general population. He shortly will be enrolled in a special "lifer's group." For administrative reasons, he may be placed in the CCCMS program in order to participate in the group. He already has earned a certificate in Men's Violence Prevention and he is wait-listed for the POP program. Judging from his prior performance, his treatment compliance will be excellent.

XIII. REVIEW OF LIFE CRIME: The inmate and his female victim had known each other approximately two years and were seeing each other regularly. The night of the crime they had been in Mexico eating and drinking. The victim had been depressed and suicidal about family problems. Her father was in a residential drug treatment program and her grandmother had recently died. They came back across the border to a park where they talked for about a half-hour. During this conversation, the victim removed a pistol from her purse and told the inmate that she wished to go heaven and be with her grandmother. Her religious beliefs prevented her from committing suicide and she wanted the inmate to shoot her.

He stated that they argued about her ending her life for several minutes and she convinced him that if he did not kill her she would see no alternative but to take her own life. She told him to take her purse and a video camera that was in the truck so that it would look like a robbery. The inmate took the pistol, got into the rear of the truck and the victim positioned herself in the center of the front seat of the truck looking forward.

The inmate told detectives the gun was cocked and loaded when he took it and stated he would not have known how to fire it otherwise. He pointed the weapon at the victim and fired one shot into the back of her head. She slumped in the seat. He covered her head with a towel and exited the truck. He left the park on foot, taking her purse and shoes, the camera and the pistol. As he walked, he disposed of the gun and left the victim's purse and shoes in a trash can. He rode a trolley to a stop near his home and dropped the camcorder into a dumpster, after which he went home.

The inmate's fundamentalist Catholic origins could reasonably have led him to conclude that euthanasia might be a lesser sin than suicide. In a peculiar way, he saw himself as a rescuer. The inmate said that he felt a great sense of relief when he was put in jail. He clearly held himself accountable for his part in the crime.

XIV. ESTIMATED DANGEROUSNESS: The inmate has no prior crime history. There is no prior pattern of violence. During his incarceration, there has been no violence. In 1992, he received a 115 for Failure to Report. In 1993 he received three 128s: Failure to Report, Not Obeying Orders and Leaving Without Permission. There have been no disciplinary actions since then. There are at least seven laudatory chronos in his C-File.

XV. ESTIMATED FUTURE VIOLENCE IN THE COMMUNITY: This inmate's crime essentially came out of the blue. At the beginning of that evening it is doubtful that the end could have been foreseen. Although the scenario seems unlikely to be reproduced, the inmate's lack of sophistication could leave him vulnerable to other external pressures to act. Therefore, this inmate's potential for violence is unpredictable.

Respectfully Submitted,

Nancy Van Couvering, Ph.D., License #PSY 3998 Forensic Psychologist MDO/Forensic Mental Health Unit California Department of Corrections

EXHIBIT M

THE SUPERIOR COURT OF THE STATE OF CALIFORNIAIN AND FOR THE COUNTY OF SAN DIEGO IN THE MATTER OF THE APPLICATION OF: HC 18766 CR 124268 VICTOR AVALOS, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS Petitioner. AFTER REVIEWING THE PETITION FOR WRIT OF HABEAS CORPUS AND THE COURT FILE IN THE ABOVE-REFERENCED MATTER, THE COURT FINDS AS FOLLOWS:

In 1991, Petitioner was convicted of second degree murder (Penal Code § 187(a)) with use of a firearm (Penal Code § 12022.5(a)). Petitioner was sentenced to a term of 20 years to life.

Petitioner filed the instant petition for writ of habeas corpus in this Court on January 22, 2007, challenging the August 17, 2006 decision of the Board of Parole Hearings ("Board or "BPH") finding him unsuitable for parole. Petitioner argues there was insufficient evidence to find him unsuitable for parole. Petitioner also argues the Board's reliance on his commitment offense to deny him parole violates his right to due process.

The Petition is denied for the following reasons.

Every petitioner must set forth a prima facie statement of facts which would entitle him to habeas corpus relief under existing law. ( In re Bower (1985) 38 Cal.3d 865, 872.) Vague or conclusory allegations do not warrant habeas relief. ( People v. Duvall (1995) 9 Cal.4th 464, 474.) The petitioner bears the burden of proving the facts upon which he bases his claim for relief. (In re Riddle (1962) 57 Cal.2d 848, 852.) The petition should include copies of reasonably available documentary evidence in support of claims, including pertinent portions of hearing transcripts and affidavits or declarations. ( People v. Duvall, supra, 9 Cal.4th at 474.) A petitioner's unsubstantiated statements do not provide a sufficient basis upon which to prove his claims. ( In re Alvernaz (1992) 2 Cal.4th 924, 945.)

Petitioner has not met this burden, as there is "some evidence" in support of the Board's denial of parole.

Overview Of Parole Suitability Standards:

By statute, when determining suitability for parole, the parole board "shall normally set a parole release date" (Pen. Code § 3041(a)) "unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of a current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual." (Pen. Code § 3041(b)). The state Legislature has given the BPH the power to establish the rules and regulations regarding release on parole. (Pen. Code § 3052.) The BPH regulations require a panel determining parole suitability for a life prisoner to find the prisoner unsuitable for parole if, in the judgment of the panel, the prisoner will pose an unreasonable risk of danger to society if released from prison. (California Code of Regulations, Title 15 [hereafter 15 C.C.R.] §§ 2281(a), 2402(a).) The BPH should consider all relevant, reliable information available to it, including the prisoner's social history, past and present mental state, criminal history, commitment offenses, behavior before, during and after the crime, attitudes toward the crime, and any other information that bears on the prisoner's suitability for release on parole. (15 C.C.R. §§ 2281(b), 2402(b).)

The BPH has also set forth general factors that tend to show suitability and unsuitability for parole. (15 C.C.R. §§ 2281(c)-(d), 2402(c)-(d).) The following are the factors tending to show unsuitability for parole that the parole board should consider:

(1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered include:

(A) Multiple victims were attacked, injured or killed in the same or separate incidents.

(B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder.

(C) The victim was abused, defiled or mutilated during or after the offense.

(D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering.

(E) The motive for the crime is inexplicable or very trivial in relation to the offense.

(2) Previous Record of Violence. The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age.

(3) Unstable Social History. The prisoner has a history of unstable or tumultuous relationships with others.

(4) Sadistic Sexual Offenses. The prisoner has previously sexually assaulted another in a manner calculated to inflict unusual pain or fear upon the victim.

(5) Psychological Factors. The prisoner has a lengthy history of severe mental problems related to the offense.

(6) Institutional Behavior. The prisoner has engaged in serious misconduct in prison or jail.

(15 C.C.R. § 2402(c).) The following are the factors tending to show suitability for parole that the parole board should consider:

(1) No Juvenile Record. The prisoner does not have a record of assaulting others as a juvenile or committing crimes with a potential of personal harm to victims.

(2) Stable Social History. The prisoner has experienced reasonably stable relationships with others.

(3) Signs of Remorse. The prisoner performed acts which tend to indicate the presence of remorse, such as attempting to repair the damage, seeking help for or relieving suffering of the victim, or indicating that he understands the nature and magnitude of the offense.

(4) Motivation for Crime. The prisoner committed his crime as the result of significant stress in his life, especially if the stress has built over a long period of time.

(5) Battered Woman Syndrome. At the time of the commission of the crime, the prisoner suffered from Battered Woman Syndrome, as defined in section 2000(b), and it appears the criminal behavior was the result of that victimization.

(6) Lack of Criminal History. The prisoner lacks any significant history of violent crime.

(7) Age. The prisoner's present age reduces the probability of recidivism.

(8) Understanding and Plans for Future. The prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release.

(9) Institutional Behavior. Institutional activities indicate an enhanced ability to function within the law upon release.

(15 C.C.R. § 2402(d)).

The precise manner in which these specified factors are considered and balanced lies within the broad discretion of the BPH, but any decision to deny parole cannot be arbitrary or capricious. ( In re Rosenkrantz (2002) 29 Cal.4th 616, 656-657, 677 (Rosenkrantz).) Thus, the standard is that a life prisoner such as Petitioner should be granted parole unless the BPH finds, in the exercise of its broad discretion, the prisoner is unsuitable for parole in light of the circumstances specified by statute and by regulation. (See Rosenkrantz, supra, 29 Cal.4th at 654-655.) The overriding factor in determining whether a prisoner is suitable for parole is public safety. (Pen. Code § 3041; 15 C.C.R. § 2402(a); In re Dannenberg (2005) 34 Cal.4th 1061, 1084 (Dannenberg); In re Scott (2005) 133 Cal.App.4th 573, 591 (Scott).)

Judicial review of the BPH's decision whether a prisoner is suitable for parole is limited to a determination of whether the factual basis for the decision is supported by some evidence in the record presented to the parole board that has some indicia of reliability. (Rosenkrantz, supra, 29 Cal.4th at 667; Scott, supra, 133 Cal.App.4th at 590-591.) This standard of review requires only a "modicum of evidence." (Rosenkrantz, supra, 29 Cal.4th at 677.) It is within the BPH's discretion to decide how to resolve conflicts in the evidence and to decide how much weight to give each factor. (Id. at 656, 677.) "It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole." (Id. at 677.) As long as the BPH's decision reflects individualized consideration of the specified criteria and legal standards, and is not arbitrary or capricious, the court's review is limited to ascertaining whether there is some evidence in the record that supports the decision. ( Id.)

Petitioner's Claims On Habeas Corpus :

Petitioner argues the evidence in the record is insufficient to support the Board's decision denying him parole. However, his claim is without merit because there is "some evidence" to support the Board's decision finding Petitioner unsuitable for release on parole.

The federal courts indeed have found the language of Penal Code § 3041 creates a liberty interest in release on parole, which is protected by the procedural safeguards of the due process clause. (Biggs v. Terhune (9^th Cir. 2003) 334 F.3d 610, 614; McQuillion v. Duncan (9^th Cir. 2002) 306 F.3d. 895, 902-903; see also, Rosenkrantz, supra, 29 Cal. 4th at 653.) However, the California Supreme Court has recently found that whether a prisoner is suitable for parole trumps the prisoner's expectancy of a set parole date. (Dannenberg, supra, 34 Cal.4th at 1070-1071 ["The statutory scheme, viewed as a whole, thus clearly elevates a life prisoner's individual suitability for parole above the inmate's expectancy in early setting of a fixed and "uniform" parole date."]) Thus, there is no violation of a prisoner's liberty interest if the parole board properly denied parole.

A decision to deny parole can be based on the nature of the prisoner's underlying offense alone, as long as the parole board has given due consideration to all applicable factors regarding suitability for parole (Rosenkrantz, supra, 29 Cal.4th at 677, 682-683; see also, Scott, supra, 133 Cal.App.4th at 594-595), and the circumstances of the commitment offense reasonably could be considered more aggravated or more violent than the minimum necessary to sustain a conviction for that offense (Rosenkrantz, supra, at 678, 683; see also, Dannenberg, supra, 34 Cal.4th at 1098.)

Here, the BPH gave due consideration to all the applicable factors regarding suitability for parole as set forth in 15 C.C.R. § 2402(c), (d). First, the BPH considered the underlying commitment offense. Petitioner had driven the victim to his home to visit some friends. Petitioner stated the victim was depressed and suicidal about family problems. Petitioner stated the victim removed a gun from her purse and told him she wished to be in heaven with her grandmother, but her religious beliefs prevented her from committing suicide. Petitioner stated the victim convinced him that if he did not kill her, she would take her own life. Petitioner shot the victim with one shot in the back of the head. (Petition, Exhibit H at 56-57). The Board found that the offense was committed in an especially cruel and callous manner (15 C.C.R. § 2402(c)(1)). The offense was carried out in a dispassionate and calculated manner (15 C.C.R. § 2402(c)(1)(B), in that Petitioner was in a position of trust. Petitioner indicated he did not believe the victim would shoot herself due to her religious beliefs, yet he shot her anyway. (Ex. H at 56). After the victim was shot, she was left in the vehicle and items in the vehicle that belonged to her were discarded as Petitioner left the scene. There was no indication that Petitioner checked to see if she was still alive. (Ex. H at 59).

The Board also considered that Petitioner had no prior criminal history as a juvenile or as an adult. (15 C.C.R. § 2402(c)(2), (3)). (Petition, Exhibit H at 56).

The Board next considered Petitioner's institutional behavior. (15 C.C.R. § 2402(c)(6)). The Board concluded Petitioner had not sufficiently participated in beneficial self-help programs. The materials before the Board indicated Petitioner had a history of drug and alcohol abuse, and the Panel concluded that Petitioner needed to address these areas. In addition, Petitioner has received three 128 counseling chronos, the last one in 1993, and, to his credit, only one serious 115 disciplinary record in 1992. (Petition, Exhibit H at 58).

The Board next considered psychological factors. (15 C.C.R. § 2402(c)(5)). The BPH reviewed Petitioner's psychological report of February 2003, which was unfavorable to the granting of parole. The report indicated that "your lack of sophistication could leave you vulnerable to other external pressures to act and that your potential for violence is unpredictable." (Petition, Exhibit Hat 58). The Board has asked that a new report be prepared for Petitioner's next hearing. (Id.).

The Board next considered Petitioner's parole plans. (15 C.C.R. § 2402(d)(8)), which are realistic. Petitioner has a residential offer and marketable skills. (Petition, Exhibit H at 58-59).

The Board also reviewed the opposition from the San Diego Office of the District Attorney, the verbal statements of the victim's next of kin, and the letter received from Cristina Adame. (Petition, Exhibit D at 59).

After weighing the above factors, the BPH determined the positive aspects did not outweigh the unsuitability for parole, and denied parole for three years. The Board stated:

. . . the motive for this crime from everything that we see on the record is inexplicable. We also considered in a separate decision the Psychological Report by Dr. Van Couvering, from February of 2003, indicating a need for a longer period of observation and evaluation. And that you haven't completed the necessary program that's going to be essential to your adjustment and you need additional time to gain the programming. This is the area of self-help associated with the numerous references to drug and alcohol that are in the record. Therefore, a longer period of observation and evaluation is going to be required before the Board could find that you are suitable for parole. (Petition, Exhibit H at 59-60).

This Court finds no abuse of the Board's discretion is apparent in this case.

Therefore, the petition for writ of habeas corpus is DENIED, in its entirety.

A copy of this order shall be served upon 1) Petitioner and 2) the Office of the San Diego County District Attorney (Appellate Division).

IT IS SO ORDERED.

EXHIBIT N

COURT OF APPEAL — FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA In re VICTOR AVALOS D050684 on (San Diego County Super. Ct. No. CR 124268) Habeas Corpus. THE COURT:

The petition for writ of habeas corpus has been read and considered by Justices McDonald, McIntyre, and O'Rourke.

In 1991 petitioner Victor Avalos pleaded guilty to second degree murder with the personal use of a firearm. The trial court sentenced him to a stipulated term of 20 years to life in prison. He became eligible for parole in 2004.

According to the probation report, Avalos spent an evening dining and drinking with his friend, Alicia Adame, in Mexico. Afterwards, they went to a park in National City where Adame, who was depressed and suicidal, gave Avalos a pistol and asked him to kill her. After the two argued for several minutes, she convinced Avalos that if he did not kill her, she would kill herself even though it violated her religious beliefs. He took the gun and shot her once in the back of the head. He then covered her head with a towel and left the park on foot. He took the pistol with him and, to make it look as if a robbery-murder had occurred, he took her purse, shoes, and video camera as well. He disposed of these items at various places on his way home.

Other than the commitment offense, Avalos has no criminal history. During his incarceration, Avalos has received one disciplinary action and three disciplinary counselings. The disciplinary action was in 1992 for failure to report. The most recent disciplinary counseling was in 1993 for leaving work without permission.

Avalos dropped out high school in the 11th grade to work and later obtained a GED. While incarcerated, he has completed vocational training in cabinetmaking and eyewear manufacturing. He currently works as a shipping clerk for the Prison Industry Authority's optical lab, with above average to exceptional performance ratings.

Upon parole, Avalos plans to live with his mother in National City. He would like to continue his work as a shipping clerk in the eyewear manufacturing field, but will seek any available employment that permits him to be self-sufficient. He also has offers of support from friends and family members.

Avalos has participated in number of self-help programs, including courses in anger management, conflict resolution, stress management and offense prevention. He has also attended 12-step programs periodically, but no longer does so because he states he does not have a history of substance abuse and he does not believe substance abuse was a factor in his crime. He does, however, admit he has experimented with drugs and he had been drinking before the crime occurred.

Avalos's most recent mental health evaluation indicates he has an unspecified personality disorder. The evaluation also indicates that, although the circumstances leading to the commitment offense are not likely to be repeated, Avalos's "lack of sophistication could leave him vulnerable to other external pressures to act. Therefore, [his] potential for violence is unpredictable."

In 2006, after considering the above information and objections to parole from the San Diego County District Attorney and Adame's parents, the Board of Parole Hearings (Board) found Avalos unsuitable for parole. The Board based its decision on the circumstances of the commitment offense, Avalos's limited self-help programming in the area of substance abuse prevention, his prison disciplinary record, the conclusions in the most recent psychological evaluation, and the objections to parole from the district attorney and Adame's parents.

Avalos filed this petition to challenge the Board's decision. Avalos argues that the Board's decision is not supported by the evidence because the evidence does not show his release would unreasonably endanger public safety. He also argues that the Board's decision violates his plea agreement, which impliedly contemplated that he would serve no more than the maximum 19-year term specified in the matrix of base terms for second degree murders.

We conclude Avalos has failed to state a prima facie case for relief. (People v. Duvall (1995) 9 Cal.4th 464, 474-475.) In reviewing a decision of the Board to deny parole, this court's inquiry is limited to determining whether there is some evidence in the record to support the Board's decision, in light of the factors specified by statute and regulation. (In re Rosenkrantz (2002) 29 Cal.4th 616, 658.) In this case, the Board relied on appropriate factors to determine whether Avalos was suitable for parole. (Cal. Code Regs., tit. 15, § 2402.) Moreover, there is some evidence in the record, as described above, to indicate Avalos would pose an unreasonable risk to public safety if released. Finally, there is no evidence in the record to indicate that Avalos's plea agreement included a promise of parole at any particular time or at all. Consequently, Avalos has not established that the Board's decision violates his plea agreement.

The petition is denied.

____________________ McDONALD, Acting P. J.

EXHIBIT O

S154910IN THE SUPREME COURT OF CALIFORNIAEn Bane Court of Appeal, Fourth Appellate District, Div. 1 — No. D050684 In re VICTOR AVALOS on Habeas Corpus The petition for review is denied.