Opinion
H031227
7-30-2008
In re JOHNNY LIRA, on Habeas Corpus.
Not to be Published
Following the Board of Prison Terms (Board) denial of his ninth request for parole, Johnny Lira filed a petition for habeas corpus in the superior court, asserting the Boards decision was unsupported by the evidence, and that the Board had an improper policy to deny parole to "virtually all indeterminate prisoners."
The superior court issued an order to show cause, and the Board filed a return, and Lira filed a traverse. The superior court found that the Boards decision to deny Lira parole was unsupported by evidence in the record.
The Attorney General appeals the superior courts grant of Liras petition for habeas corpus.
STATEMENT OF THE FACTS AND CASE
The underlying offense occurred in September 1980. Lira and his wife Allison were separated and were embroiled in significant marital problems and custody issues. At the time, Allison was living with her mother, and her and Liras two daughters, Juanita and Joanna. Lira had just recently learned that Juanita, was not his biological daughter.
After dropping the girls off at Allisons mothers house, Lira and Allison started to talk in the front yard of the house. The discussion turned into a heated argument, during which Allison told Lira she had resumed sexual relations with Juanitas father. Lira became enraged, and was unable to properly control his anger. Lira went to his car, got a gun, shot Allison multiple times, and fled from the scene out of fear of what he had done. At the time Lira was under the influence of alcohol, having consumed approximately nine cans of beer, and cocaine. Lira had a $250 a week cocaine habit, and owed many drug dealers for unpaid debts. Lira had the gun in his car for protection from the drug dealers. Lira turned himself into the police a few days later, giving a full confession and expressing remorse.
Lira was found guilty of second-degree murder, and was sentenced to a term of 15 years to life with a two-year consecutive enhancement pursuant to Penal Code section 12022.5 for personal use of a firearm. Lira has spent over 27 years in prison to date.
Before the conviction for the offense for which Lira is in prison, Lira had been convicted of vandalism and driving under the influence. The vandalism occurred when Lira was intoxicated, and went to his mother-in-laws home, demanding to see his wife. When she refused, Lira used a knife to saw through the homes screen door, and rammed his car into his mother-in-laws car.
In December 2005, Lira was denied parole by the Board for the ninth time. The Boards decision to deny Lira parole at that time was based on the following: "we started with the commitment offense, and . . . nothings changed. It was carried out in an especially cruel or callous manner. It was carried out in a dispassionate manner. The offense was carried out in a manner which demonstrated an exceptionally callous disregard for human suffering."
In addition to the nature of the commitment offense, the Board also noted that Lira "did have a history of an unstable, tumultuous relationship." The Board also referred to Liras "unstable social history and criminality," and that Lira needed to "do some work in the area of vocational." The Board did commend Lira on his positive behavior for more than 15 years in prison.
On July 11, 2006, Lira filed his second petition for habeas corpus challenging the Boards December 2005 decision denying him parole.
In the petition, Lira argued that the Boards denial of parole was not based on the requisite "some evidence," and as a result, violated his due process rights. Lira specifically asserted that there was no evidence to support a denial of parole under Penal Code section 3041, and California Code of Regulations, title 14, section 2402, that repeated reliance on the commitment as a basis for denial of parole violated his due process rights, and that the Board had an unlawful policy of denying parole to nearly all indeterminate term prisoners.
The superior court granted Liras petition in January 2007. The court considered the commitment offense, and reasoned that there was nothing "exceptional" or "egregious" about it that would provide a basis for continued denial of parole. In addition, the court concluded that the "Board . . . erred in finding that [Lira] was required to upgrade vocationally in order to be suitable for parole." The court reasoned that considering Liras job offer, his family support, and the Boards conclusions at the hearing that it had "no quarrel with [Liras] parole plans" as they were "realistic." The court also found the Boards conclusion that Lira had an unstable social history was in error, stating: "[t]he Board may not use the history of [Liras] relationship with the victim against him as an unsuitability factor. This is the same relationship that caused the `significant stress `built up over a long period of time, which qualifies as suitability factor (d)(4). This factor affirmatively demonstrates suitability."
The court ordered the Board to hold a new hearing, specifically for the purpose of determining whether there was any evidence of present dangerousness. The court stated: "unless there is actually new evidence, the Board may not repeat any finding herein found invalid." The court concluded by stating: "[a]s outlined above there is not `some evidence supporting the use of the crime, [Liras] social history, or his vocational, against him. And, while there is `some evidence of [Liras] prior criminal behavior and drug abuse, this Court does not believe such will support a finding of present dangerousness given [Liras] 25 years of incarceration (the last 15 of which have been as a model prisoner) and the lack of any current nexus to dangerousness."
The Attorney General filed a notice of appeal of the courts grant of Liras petition for habeas corpus on February 27, 2007.
In response to the courts order, the Board issued a notice of hearing for March 5, 2007. This court stayed the superior courts order pending appeal, and at the March 5, 2007 hearing, Lira was again denied parole.
DISCUSSION
The Attorney General asserts on appeal that the superior court erred in granting Liras petition for habeas corpus, because in doing so, the court improperly reweighed the evidence and substituted its own judgment for that of the Board. The Attorney General also argues the court erred when it ordered the Board not to consider certain evidence in future parole hearings for Lira, rather than simply to order the Board to comply with due process.
"[T]he judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law, but . . . in conducting such a review, the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation. If the decisions consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoners petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law." (In re Rosenkrantz (2002) 29 Cal.4th 616, 658 (Rosenkrantz).)
It appears the superior courts findings here were based solely on documentary evidence. Accordingly, we independently review the record to determine if there is some evidence to support the Boards findings. (Rosenkrantz, supra, 29 Cal.4th at p. 677.)
The general standard for a parole unsuitability decision is that "a life prisoner shall be found unsuitable for and denied parole if in the judgment of the [Board or the Governor] the prisoner will pose an unreasonable risk of danger to society if released from prison." (Cal. Code Regs., tit. 15, § 2402, subd. (a).)
"[C]ircumstances tending to establish 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. (Cal. Code Regs., tit. 15, § 2402, subd. (c).)" (Rosenkrantz, supra, 29 Cal.4th at pp. 653-654, fn. omitted.) An offense is considered "especially heinous, atrocious, or cruel" if it "was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering" or "[t]he motive for the crime is inexplicable or very trivial in relation to the offense." (Cal. Code Regs, tit. 15, § 2402, subd. (c)(1)(D) & (E).)
"[C]ircumstances 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. (Cal. Code Regs., tit. 15, § 2402, subd. (d).)" (Rosenkrantz, supra, 29 Cal.4th at p. 654.)
"The factor statutorily required to be considered, and the overarching consideration, is `public safety. " (In re Scott (2005) 133 Cal.App.4th 573, 591.) Therefore, "the determination of suitability for parole involves a paramount assessment of the public safety risk posed by the particular offender . . . ." (In re Dannenberg (2005) 34 Cal.4th 1061, 1084 (Dannenberg).)
Accordingly, the relevant test is not whether some evidence supports the reasons cited for denying parole, "but whether some evidence indicates [an inmates] release unreasonably endangers public safety." (In re Lee (2006) 143 Cal.App.4th 1400, 1408, fn. & italics omitted (Lee); see also In re Tripp (2007) 150 Cal.App.4th 306, 313 ["evidence must substantiate the ultimate conclusion that the prisoners release currently poses an unreasonable risk of danger to the public"].) "Some evidence of the existence of a particular factor does not necessarily equate to some evidence the parolees release unreasonably endangers public safety." (Lee, supra, 143 Cal.App.4th at p. 1409, fn. omitted.)
The question here is whether some evidence supports the Boards finding that the circumstances of the murder demonstrate that Lira remains a danger to the public. As we have already noted, "the nature of the . . . offense, alone, can constitute a sufficient basis for denying parole." (Rosenkrantz, supra, 29 Cal.4th at p. 682.) An inmate may be unsuitable for parole if he "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." (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1).)
In order for Liras second degree murder of his wife to make him unsuitable for parole, it must have been committed in an " `especially heinous, atrocious or cruel manner, "which is not measured by "general notions of common decency or social norms, for by that yardstick all murders are atrocious . . . . [Citation.]" (Lee, supra, 143 Cal.App.4th at p. 1410.) This is so because malice is a necessary element of murder, and by definition it involves an extreme indifference to the value of human life, an element of viciousness, some callousness, and a degree of emotional insensitivity to the feelings and suffering of others. (Ibid.) Hence, "an unsuitability determination must be predicated on `some evidence that the particular circumstances of [the] crime-circumstances beyond the minimum elements of his conviction-indicated exceptional callousness and cruelty with trivial provocation, and thus suggested he remains a danger to public safety. " (In re Weider (2006) 145 Cal.App.4th 570, 588 (Weider), quoting Dannenberg, supra, 34 Cal.4th at p. 1098.)
There is no evidence that this murder was carried out in an especially violent and coldhearted manner. The circumstances of the underlying offense are that during a particularly heated and emotional argument with his wife, Lira lost control and killed her. There is no evidence that the victim suffered. Lira did not do anything to torment or terrorize Allison, and his actions were neither calculated nor premeditated. As in our earlier opinion in In re Smith (2003) 114 Cal.App.4th 343, there is no evidence Lira "tormented, terrorized, or injured [Allison] before deciding to shoot her, or that he gratuitously increased or unnecessarily prolonged her pain and suffering." (Id. at p. 367.)
After reviewing the evidence set forth in the Boards decision, we find that Liras commitment offense does not rise to the level of an offense committed in an especially heinous, atrocious or cruel manner there must be some evidence that the "violence or viciousness of the inmates crime" is greater than that which is "minimally necessary to convict [Lira] of the offense for which he is confined." (Dannenberg, supra, 34 Cal.4th at p. 1095.)
In addition, the record does not support the Boards findings regarding the remaining factors used to deny parole. While it is appropriate for the Board to consider whether Lira had a "history of unstable or tumultuous relationships" with others (Cal. Code Regs., tit. 15, § 2402, subd. (c)(3), here, the Board found only that Lira had a "history of an unstable, tumultuous relationship," referring to the relationship he had with his ex-wife, the victim of his crime. However, as the trial court correctly noted, Liras past relationship with the victim was also used by the Board as a suitability factor, because the relationship caused "significant stress" "built up over a long period of time." (Cal. Code Regs., tit. 15, § 2402, subd. (d)(4).) Liras relationship with the victim cannot at once be a factor for unsuitability and also a factor for suitability. Moreover, the relationship ended with Allisons death, and did not persist while Lira has been incarcerated. Therefore, the evidence does not support a finding that Lira had a history of unstable relationships.
Appellant asserts the opposition of the victims family and the district attorney to Liras parole provides some evidence supporting the Boards decision. We note that the Board is required to consider comments by the victim and district attorney. (Pen. Code, §§ 3042, 3043.) However, as this court found in Weider, "the opposition cannot add weight where there is no evidence of unsuitability to place in the balance." (Weider, supra, 145 Cal.App.4th at p. 590.) The decision to grant parole rests on the guidelines listed in section 2400 et seq and Penal Code section 3041. (Rosenkrantz, supra, 29 Cal.4th at p. 658, italics added [there must be "some evidence in the record before the Board [that] supports the decision to deny parole, based upon the factors specified by statute and regulation"].) Here, we find no evidence to support the finding of unsuitability, based on the factors enumerated by the Board. Therefore, opposition of the victim and the district attorney cannot add weight. (Weider, supra, 145 Cal.App.4th at p. 589.)
Our review of the Boards stated reasons for denying Lira parole release demonstrates that the factors cited by the Board lack evidentiary support.
"In reviewing a decision denying parole, we first determine whether some evidence supports each of the factors stated by the Board to justify the denial of parole. [Citations.] If one or more of the factors lacks evidentiary support, the next questions are whether the Board would have denied parole based upon the supported factors and whether this result `satisfies the requirements of due process of law because the factors for which there is some evidence `constitute a sufficient basis supporting the . . . discretionary decision to deny parole. [Citation.] We will uphold the denial of parole when it appears that the Board would have reached the same conclusion based on the supported factors and those factors individually or collectively justify that conclusion. [Citations.]" (In re DeLuna (2005) 126 Cal.App.4th 585, 598.)
Where, as here, we have concluded that the Boards findings lack evidentiary support, "the court should grant the prisoners petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law." (Rosenkrantz, supra, 29 Cal.4th at p. 658.)
Although it was appropriate for the trial court to remand the case to the Board for reconsideration, the court went further and specified "unless there actually is new evidence, the Board may not repeat any finding herein found invalid." The court also stated in regard to the commitment offense that `because it is unlikely that the Board will have anything sufficiently different before it, the Board will be unable to again invoke the crime as grounds for parole denial." "In attempting to thus curtail the Boards exercise of discretion, the trial court has exceeded its authority. Section 2402, subdivision (b) [of the California Code of Regulations, title 15,] provides in part: `All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Rosenkrantz observed, `the precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the [Board], but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious. [Citation.] The Board should proceed in this manner. If there is evidentiary support for a finding currently lacking it, the Board may make that finding again." (In re DeLuna, supra, 126 Cal.App.4th at p. 599.)
DISPOSITION
The case is remanded to the trial court to modify its order granting Liras petition for habeas corpus and remand the matter to the Board to reconsider its decision and to conduct a new hearing to reconsider Liras suitability for parole, using, without restriction, the factors deemed appropriate by the relevant statutes and regulations and in accordance with the requirements of due process. As so modified, the order is affirmed.
WE CONCUR:
PREMO, J.
ELIA, J. --------------- Notes: Liras first petition was filed in October 2002, and challenged a 2001 Board decision to deny him parole on his fifth request.