Opinion
NOT TO BE PUBLISHED
Original proceeding on a petition for writ of habeas corpus. Relief denied.
IRION, J.
In 1979 a jury convicted Jesus C. Cecena of one count of first degree murder. (Pen. Code, § 187.) Cecena is currently serving an indeterminate life prison term, with a minimum eligible parole date of June 5, 1985.
The California Board of Parole Hearings (the Board) held a subsequent suitability hearing in November 2008 to consider setting a date for Cecena's release on parole. At the conclusion of the hearing, the Board determined that Cecena was currently unsuitable for release on parole, and found him unsuitable for at least the next year.
After his habeas corpus petition was denied by the superior court, Cecena filed a petition for a writ of habeas corpus with this court, challenging the Board's decision. We issued an order to show cause why relief should not be granted.
As we will explain, we conclude that Cecena has not established that the Board violated his constitutional rights by finding him to be currently unsuitable for parole, and we accordingly deny his petition for a writ of habeas corpus.
I
FACTUAL AND PROCEDURAL BACKGROUND
The facts of Cecena's commitment offense, as we recite them, are taken from the probation officer's report and our 1982 opinion on Cecena's appeal from his conviction. (People v. Arteaga and Cecena (Mar. 31, 1982, 4 Crim. No. 11496) [nonpub. opn.].)
Early in the morning of November 4, 1978, when Cecena was 17 years old, a vehicle he was driving was stopped for speeding by Police Officer Archie Buggs. Officer Buggs approached Cecena's car with his citation book in hand, removed a beer can from the front seat of the car and placed it on the roof. As Officer Buggs walked to the rear of the car, Cecena exited the vehicle and fired six shots from a.38 caliber revolver, killing Officer Buggs. Three of the bullets entered Officer Buggs's right chest, and one of them entered his temple. The remaining two bullets were deflected by Officer Buggs's bullet-proof vest. Before he died, Officer Buggs fired at least two or three shots from his own firearm.
Cecena drove away from the scene and was apprehended a few hours later, along with a man who was Cecena's passenger in the car during the shooting. Blood matching Officer Buggs's type was smeared on the inside and outside of the driver's door of Cecena's vehicle and on Cecena's clothing.
At the time of the murder Cecena was a gang member, and he was intoxicated with PCP, marijuana and alcohol.
A jury convicted Cecena of first degree murder (Pen. Code, § 187), with the special circumstance that he killed a police officer engaged in the performance of his duties (§ 190.2, former subd. (c)(1) [now subd. (a)(7)]). The trial court sentenced Cecena to a life term in prison without the possibility of parole, which was reduced on appeal to a sentence of life with the possibility of parole because Cecena was a minor at the time of the murder.
B. The Parole Hearing
The Board held a hearing on November 20, 2008, to consider whether Cecena was suitable for release on parole.
The Board incorporated the facts of the murder as set forth in our 1982 appellate opinion and read into the record a false statement regarding the crime that Cecena gave police officers after being arrested, in which Cecena claimed that the passenger in his car had killed Officer Buggs. Cecena acknowledged to the Board that he had lied about the facts of the crime after being arrested, and he then described the true facts of the crime to the Board. According to Cecena, Officer Buggs pulled him over because he was driving erratically due to the influence of PCP and alcohol, and at the time, his passenger's gun was in the car. Cecena explained:
"Well, I started to panic. Here we have a gun in the car. We have PCP, we have beer. I don't have a license. I don't have a registration, so I get scared. I don't want my family to find out what's happening. I don't want to disappoint my dad.... I grab the gun, and I get out of the car with the intention of trying to intimidate this officer. As I get out of the car, he sees the gun, and he does what he's supposed to do. He draws his gun. When he draws his gun, I start to fire. And I kept firing and firing and firing. The next thing I know, he was — he was dead. He was on the ground. I went up to the officer. I try to check him to see if he was all right. He wasn't all right. Man, I didn't want to kill him. This should have never happened, you know."
In response to a question about how blood got on his car, Cecena stated, "[A]fter I shot Officer Buggs, I went up to him and I rolled him over to see if he was okay, and that's when I realized he was dead, and that's how I got blood on my hands. And then when I went back to open up the car, the blood from my hands got on the car." During psychological evaluations, Cecena stated that he shot Officer Buggs because he "acted on impulse" and was under the influence of substances.
After recounting the facts of the crime, Cecena expressed remorse for his actions, including reading a letter of apology to Officer Buggs.
Cecena also explained to the Board his understanding of why he was involved in substance abuse and the gang lifestyle when he was 17 years old. According to Cecena, his drug use and association with gangs started upon the divorce of his parents when he was around 13 years old. He explained that drug use took him away from the sorrows of his home life, and his gang association made him feel loved and wanted. Cecena explained, "I was so caught up in wanting to... be accepted by others that I allowed those beliefs and influence to lead me on the path of self destruction," and he stated that he was "no longer that teenage kid who lacks sound judgment or [is] searching for misguided acceptance from others." He explained that although he was a gang member during the early years of his incarceration, he disassociated himself from gangs in prison around 1990. Cecena claimed that he began to turn his life around when he found God in 1987.
The record establishes that Cecena has been involved in sobriety and other recovery and therapeutic programs on a consistent basis for several years, and there is no evidence that he has used alcohol or other substances since 1987. Cecena received his last "115" citation for misconduct in 1987, and he received his last "128" citation in 1993.
A form "115" documents misconduct believed to be a violation of law that is not minor in nature, while a form "128" documents incidents of minor misconduct. (Cal. Code Regs., tit. 15, § 3312, subd. (a)(2); In re Gray (2007) 151 Cal.App.4th 379, 389.) We note that in his traverse, Cecena points out that the "128" he received in 1993 was informational rather than documenting misconduct by Cecena, in that it described an attack on Cecena by another inmate in which Cecena was the victim. Cecena's last "128" describing an incident of misconduct was in 1990.
The record further establishes that Cecena has been steadily employed in the prison's fabric products industry since at least 1995, for which he has been praised for his leadership abilities, his work ethic, his communication skills, his "exceptional" performance and his "rese[r]ved[,] pleasant and tranquil attitude at all times." In November 2007, a correctional counselor noted Cecena's "unusually respectful attitude and calm demeanor that has remained consistent with each encounter." Cecena earned a high school diploma while in prison, and has a well-developed parole plan, which includes offers of housing and employment from several relatives in the San Diego area, where he plans to reside with his wife.
In the written report of Cecena's 2008 psychological evaluation, the psychologist stated, "Mr. Cecena expressed insight into what led to his previous criminal behavior, and explained how he has modified his thinking and behavior towards a more pro-social and optimistic stance. Evidence of this can be found in the lack of Rules Violation Reports during the past 20 years and in his responsible work behavior. Further, there was no evidence that Mr. Cecena has in recent years exhibited the type of impulsivity and aggressiveness that was a factor during the controlling offense." The psychologist concluded that "[t]here was no evidence in the current interview that Mr. Cecena is an imminent threat for future violence.... Mr. Cecena's current risk for future violence, if paroled to the community at this time, is in the low range, when compared to other inmates." The psychologist stated Cecena's "risk for future violence may significantly increase if he were to begin identifying and/or associating with the criminal/antisocial lifestyle, using substances, and if he had access to a weapon," but he emphasized that "this scenario is hypothetical and there are no current warning signs that such a situation is forthcoming," especially in light of the fact that Cecena "does not currently associate with prison gang culture and has not engaged in violent behavior during the past 22 years."
In his closing statement to the Board, the deputy district attorney argued that Cecena lacked insight into the crime because the murder did not occur as Cecena described it.
"The photographs of the crime scene have previously been presented to the Board many years ago along with the police reports. I've got a copy here. And there was testimony at the time of the trial that a witness or witnesses heard a flurry of shots, and then a period of time was quiet, and then another shot. Officer Buggs, once he was shot in the chest, fell on the street next to the curb. He was then shot in the head as he laid [sic] in the street. It's clear from the photograph, based on the blood stain pattern and everything else, and the fact that he's up against the curb, he couldn't have moved in the fashion that the inmate told you today. He got blood on his hands. And oh, by the way, you can see that there's no blood emanating from the body area of the officer. It's all coming from his head, and it sprayed out. Mr. Cecena got the blood on his hands because it spurted out of the head of the officer when he was shot. He didn't roll him over and get blood on his hands.... [T]he facts by way of the crime scene clearly indicate how he got blood on his hands, and that was issuing a coup de gras to this officer as he laid mortally wounded against the curb in the street.... Mr. Cecena comes up and shoots him in the head at relatively close range in order to get the blood on him."
The Board concluded that Cecena was "not yet suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison." In explaining its decision, the Board stated:
"As to insight into this crime, you are today taking responsibility for this crime, and the Panel finds that you have progressed a long way. You have gained a much greater understanding of the nature and magnitude of this crime, and you appear to have remorse for this horrific crime. The Panel, however, finds it not credible that you claimed that you went over, grabbed the officer by the arm or the shoulder to check his welfare, and then you fled in terror.... No one will ever know exactly, precisely what happened at that scene except perhaps yourself. But frankly, the reference that you were checking on the officer's welfare is not believable. It's much more likely that, in fact, that was the time, although we will never know, that you actually fired the last shot.... It's not clear whether the officer was down and you actually checked him, or whether you got close enough to him to fire and get blood on you, and then left him to fall. We will never know these things. But, sir, I would just think it very important that you look into your own soul as to what happened that night and what you have represented to this Panel."
The presiding commissioner also expressed a view of Cecena's crime on behalf of herself, but did not speak for the Board in making those comments. She stated, "[T]his member of the Panel feels that you intended to kill this officer from the outset. Your statement today was that you intended to intimidate the officer. I don't believe that. I believe that this was part of a gang effort and that you were going to get kudos for wiping this officer. That's what I believe." She also stated, "The motive in question here today, sir, you indicated was your fear. Again, this Panel member feels that there was a lot more gang member involvement in this, and it was aggressive gang member involvement in terms of motive for this crime." Because these comments were not offered as the basis for the Board's decision, but only the perspective of the one the panel members, we do not view the comments as constituting the basis for the Board's decision.
The Board also reviewed Cecena's criminal history, his disciplinary and employment history in prison, the psychological evaluations placing him in the low range for risk of future violence, and his parole plans. The Board denied parole for one year, stating to Cecena that it was "recommending that you get no more [disciplinary reports], that you earn positive chronos, that you get self-help, that you read the transcript of this hearing and what you said, and that you update your parole plans prior to the next hearing."
Cecena's juvenile criminal record initially consisted of behavior for which he was counseled and released, including joy riding, curfew violations and being a runaway, malicious mischief, possession of tobacco, possession of a knife and paint sniffing. At the age of 15 Cecena was convicted of malicious mischief and two counts of burglary, and was committed to a ranch-type school under the jurisdiction of the Probation Department until approximately June 1978. He then appeared before the juvenile court on charges of paint sniffing, driving under the influence and contempt of a court order, and in November 1978 he committed the murder of Officer Buggs.
The Board stated that Cecena's parole plans were viable but cautioned him to consider whether he should live with his mother, who had a reported history of significant alcohol abuse. The Board stated, "It's something the Parole Board would look at, and you need to address that for the future."
II
DISCUSSION
A. Standards Governing the Board's Decision on Parole Suitability
Cecena contends that the Board violated his right to due process in making its decision on parole suitability. To evaluate this argument, we focus first on the applicable standards governing the Board's proceedings.
The Board is required by statute to set a release date for eligible prisoners "unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of 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, and that a parole date, therefore, cannot be fixed at this meeting." (Pen. Code, § 3041, subd. (b).)
"Title 15, Section 2281 of the California Code of Regulations sets forth the factors to be considered by the Board in carrying out the mandate of the statute." (In re Lawrence (2008) 44 Cal.4th 1181, 1202 (Lawrence).) The regulations provide in part:
In this case, the applicable regulations are those that apply to prisoners who, like Cecena, committed murder before November 8, 1978. (Lawrence, supra,44 Cal.4th at p. 1201, fn. 5 ["Because petitioner's murder was committed prior to November 8, 1978, [California Code of Regulations,] title 15, section 2281 governs her parole suitability. Title 15, section 2402... provides parole consideration criteria and guidelines for murders committed on or after November 8, 1978. The two sections are identical."].)
"All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability." (Cal. Code Regs., tit. 15, § 2281, subd. (b).)
According to the regulations, specific circumstances that "tend[]" to indicate unsuitability for parole are that the prisoner "(1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) previously has sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison." (In re Rosenkrantz (2002) 29 Cal.4th 616, 653-654, fn. omitted (Rosenkrantz); see also Cal. Code Regs., tit. 15, § 2281, subd. (c).)
Further, as set forth in the regulations, circumstances tending to establish suitability for parole are that the prisoner "(1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his life, especially if the stress has built over a long period of time; (5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use upon release; and (9) has engaged in institutional activities that indicate an enhanced ability to function within the law upon release." (Rosenkrantz, supra, 29 Cal.4th at p. 654; see also Cal. Code Regs., tit. 15, § 2281, subd. (d).)
The regulations provide that "the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel." (Cal. Code Regs., tit. 15, § 2281, subds. (c), (d).)
B. The Role of the Court in Considering a Habeas Corpus Petition
Our Supreme Court has explained the legal basis for a prisoner's habeas corpus petition challenging the Board's decision regarding parole suitability. "In [Rosenkrantz, supra, 29 Cal.4th 616], the Supreme Court held that prisoners in California have a liberty interest in parole suitability decisions and that this interest is protected by due process of law, as embodied in the state Constitution. (29 Cal.4th at pp. 655, 658, fn. 12.) The Rosenkrantz court further held that due process requires that there be 'some evidence' in the record before the Board that supports a decision by the Board to deny parole or a governor's decision to reverse a grant of parole. (Id. at pp. 652, 664, 667.) The Rosenkrantz court characterized this standard as 'extremely deferential.' (Id. at p. 665.)" (In re Rozzo (2009) 172 Cal.App.4th 40, 49 (Rozzo).)
A court's limited role in ruling on a habeas petition is to consider whether "parole decisions are supported by a modicum of evidence and are not arbitrary and capricious," or, put another way, whether they are supported by " 'some evidence.' " (Rosenkrantz, supra, 29 Cal.4th at p. 626.)
"In Lawrence, supra,44 Cal.4th 1181, the Supreme Court reaffirmed 'that the decisions of both the Board and the Governor are entitled to deference.' (Id. at p. 1191, fn. 2.) However, the Lawrence court clarified that 'when a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings.' (Id. at p. 1212.) Thus, the 'mere existence of a regulatory factor establishing unsuitability does not necessarily constitute "some evidence" that the parolee's release unreasonably endangers public safety.' (Id. at p. 1225.)" (Rozzo, supra, 172 Cal.App.4th at p. 49.) "It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public." (Lawrence, supra, 44 Cal.4th at p. 1212.)
Thus, "the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or postincarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety." (Lawrence, supra, 44 Cal.4th at p. 1214.)
C. The Board's Decision Was Supported by "Some Evidence"
Our Supreme Court has established that a prisoner's lack of insight into his criminal behavior may provide the required nexus between the commitment offense and the prisoner's current dangerousness. (Lawrence, supra, 44 Cal.4th at p. 1228 ["In some cases, such as those in which the inmate has... shown a lack of insight or remorse, the aggravated circumstances of the commitment offense may well continue to provide 'some evidence' of current dangerousness...."]; In re Shaputis (2008) 44 Cal.4th 1241, 1261, fn. 20 (Shaputis) ["petitioner's failure to take full responsibility for past violence, and his lack of insight into his behavior, establish that the circumstances of petitioner's crime and violent background continue to be probative to the issue of his current dangerousness"].)
As we have explained, the Board's decision that Cecena posed an unreasonable risk of danger to society if released, and was thus currently unsuitable for parole, focused on the lack of insight shown when Cecena provided a description of Officer Buggs's murder. The Board concluded that Cecena's statement that, after shooting Officer Buggs, he turned him over "to see if he was all right" and to "see if he was okay" was not believable and that Cecena thus lacked credibility. The Board viewed Cecena's story as reflecting on his lack of "insight into this crime," and the Board accordingly told Cecena that it was "very important" that he "look into [his] own soul as to what happened that night."
The Board's decision that Cecena lacked insight into his past criminal behavior was supported by the evidence before the Board. Specifically, the Board could reasonably conclude that someone who aimed several successful shots at a police officer's chest and one shot at his temple would not be concerned for the officer's welfare during the incident, but instead would be firing with the intent to kill. Further, the deputy district attorney referred the Board to crime scene photographs calling into question Cecena's claim that he got blood on his hands by turning Officer Buggs over to check on his condition after the shooting.
The Board reasonably could rely on Cecena's lack of insight into his crime to conclude that Cecena may pose a danger to the public if released on parole. Although, as the Board pointed out, Cecena made significant progress in understanding the nature and magnitude of his crime, Cecena's contention that he was checking to see if Officer Buggs was "all right" or "okay" after the shooting established that Cecena did not have insight into his mental state during the shooting, namely, that he acted in a way that demonstrated an intent to kill by aiming lethal shots at Officer Buggs. Cecena's insight into his mental state during the shooting is important because it would provide Cecena with the understanding to better avoid a similar crime if released on parole. Accordingly, the record reveals a sufficient nexus between Cecena's lack of insight into the crime and the possibility that he will be a danger to the public if released on parole.
Cecena argues that by basing its parole suitability decision on the fact that Cecena had not related a credible version of the crime, the Board ran afoul of the statutory provision that the Board "shall not require, when setting parole dates, an admission of guilt to any crime for which an inmate was committed." (Pen. Code, § 5011, subd. (b).) We disagree. Cecena has not denied guilt for the crime of first degree murder. When a prisoner acknowledges his involvement in the commitment offense, but mischaracterizes his role, the Board may properly rely on the prisoner's lack of insight when making parole decisions. (In re Lazor (2009) 172 Cal.App.4th 1185, 1202 [an "inmate's lack of insight into, or minimizing of responsibility for, previous criminality, despite professing some responsibility, is a relevant consideration" (italics added)]; In re Elkins (2006) 144 Cal.App.4th 475, 494 ["Elkins had admitted his guilt of these crimes decades earlier. Thus, the Governor relied not on a lack of guilt admission, but on Elkins having delayed coming forward with all circumstances of what he admitted."]; Rozzo, supra, 172 Cal.App.4th at p. 62, fn. 9 ["While it is improper to rely on a prisoner's refusal to address the circumstances of the commitment offense in denying parole, evidence that demonstrates a prisoner's insight, or lack thereof, into the reasons for his commission of the commitment offense is relevant to a determination of the prisoner's suitability for parole."].)
As our Supreme Court has explained, where as here, "the record... contains evidence demonstrating that the inmate lacks insight into his or her commitment offense or previous acts of violence, even after rehabilitative programming tailored to addressing the issues that led to commission of the offense, the aggravated circumstances of the crime reliably may continue to predict current dangerousness even after many years of incarceration." (Lawrence, supra, 44 Cal.4th at p. 1228; see also Rozzo, supra, 172 Cal.App.4th at p. 63 ["Notwithstanding Rozzo's expressions of remorse, there is evidence that he lacks insight into the reasons why he participated in the murder.... The circumstances of Rozzo's commitment offense thus continue to have probative value in predicting his current level of dangerousness" (citation omitted)].) Because the Board reasonably concluded that Cecena lacked insight into the crime, and because the murder was undisputedly heinous, there is some evidence that Cecena may currently pose a risk of danger to the public if released on parole. Accordingly, the Board did not violate Cecena's right to due process by finding him unsuitable for parole.
We emphasize that our role in reviewing the Board's decision is quite limited. " '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.' " (Shaputis, supra, 44 Cal.4th at p. 1260.) Thus, our decision should in no way be understood to foreclose the Board, in a subsequent parole suitability hearing, from weighing the applicable factors in a different manner and concluding that Cecena is suitable for release on parole.
D. The Board Did Not Violate Cecena's Sixth Amendment Right to a Jury Trial
Cecena next argues that the parole suitability hearing conducted by the Board violated his right to a trial by jury under the Sixth Amendment to the United States Constitution. Cecena argues that we should apply the holdings of Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. 270 (Cunningham) to conclude that in determining Cecena to be unsuitable for parole the Board improperly made a sentencing decision that relied on facts not found by a jury beyond a reasonable doubt. As we will explain, we reject Cecena's argument.
Cecena does not specify which factfinding by the Board he is referring to. However, logically, any of the facts specified in title 15, section 2281 of the California Code of Regulations as reflecting on suitability or unsuitability for parole would be implicated by Cecena's argument.
We find Apprendi to be inapplicable here. Apprendi sets forth the principle that" 'under the... jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.' " (Apprendi, supra, 530 U.S. at p. 476, italics added.) Here, the maximum penalty for Cecena's crime was life imprisonment. The findings made at the Board's parole suitability determination hearing did not serve to increase that maximum penalty. Thus, Apprendi does not apply.
As Blakely later clarified, "the relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." (Blakely, supra, 542 U.S. at pp. 303-304.)
Blakely and Cunningham are also inapplicable. Those cases establish that when a determinate sentencing scheme permits a court to depart upward from the presumptive sentence, the facts justifying that departure must be found by a jury beyond a reasonable doubt. (Blakely, supra, 542 U.S. at pp. 303-305; Cunningham, supra, 549 U.S. at p. 293.) Here, however, in deciding whether Cecena was suitable for parole, the Board was not deciding whether to depart from a presumptive sentence in a determinate sentencing scheme. Cecena had already been sentenced to an indeterminate term of life in prison.
We accordingly find Apprendi, Blakely and Cunningham to be inapplicable to this situation, and we therefore reject Cecena's argument that their holdings establish that the Board violated his Sixth Amendment right to a jury trial by relying on facts not found by a jury beyond a reasonable doubt.
DISPOSITION
The relief sought in the petition for a writ of habeas corpus is denied.
WE CONCUR: McINTYRE, Acting P. J.AARON, J.