Opinion
NOT TO BE PUBLISHED
San Diego County Super. Ct. No. HC15227
IRION, J.
In 1988 a jury convicted Mark Lugo of one count of first degree murder with the use of a deadly weapon (Pen. Code, §§ 187, 12022, subd. (b)), and this court affirmed the conviction on appeal. (People v. Lugo (Nov. 30, 1990, D009831) [nonpub. opn.].) The trial court sentenced Lugo to an indeterminate term of 26 years to life in prison with the possibility of parole. Lugo's minimum parole eligibility date was March 17, 2005.
In August 2008 the California Board of Parole Hearings (the Board) held a hearing to consider setting a date for Lugo's release on parole. At the conclusion of the hearing, the Board determined that Lugo was currently unsuitable for release on parole, and that he would be unsuitable for at least the next two years.
Lugo filed a petition for a writ of habeas corpus in the superior court, challenging the Board's decision as a violation of his right to due process of law because it was lacking in factual support. The superior court denied the petition. Lugo now raises this same contention in a petition for a writ of habeas corpus before this court.
I
FACTUAL AND PROCEDURAL BACKGROUND
We base our discussion of the facts of the commitment offense on materials that the Board considered in connection with the parole hearing, namely, the facts as set forth in (1) the 1990 appellate opinion affirming Lugo's conviction; (2) an evaluation report prepared by prison officials in 2004; and (3) a psychological evaluation of Lugo prepared in July 2008.
On the morning of November 16, 1987, 24-year-old Eydie Lopez was found dead in the driver's seat of her vehicle in a dirt parking lot across from a Denny's restaurant. A wire coat hanger was wrapped around her neck, and there were puncture wounds on the sides of her neck.
Lopez's roommate told the police that Lugo, who was Lopez's former boyfriend, had called Lopez several times the night before to ask her to meet him at Denny's in the early morning. The police arrested Lugo and subjected him to extensive questioning over the course of two days. Initially, Lugo told the police that he had gone to Denny's to meet Lopez, but Lopez had not shown up. After the police told Lugo that certain evidence tied him to the crime scene, Lugo stated that he may have blacked out, and he asked to talk to a psychiatrist.
The next day, upon further questioning, Lugo confessed to the crime, stating that he and Lopez met and had sex in her car, and after they started arguing about Lugo's new girlfriend, he stabbed Lopez with a knife and choked her with a wire hanger. During the interview, Lugo began to cry and stated, " 'I didn't do this. I am making it up.' " Later in the interview he said, " '[Y]ou're right. I did it.' "
A jury convicted Lugo of first degree murder, and he was sentenced to an indeterminate term of 26 years to life in prison.
B. The Parole Hearing
Lugo's current attitude toward the commitment offense is set forth in his July 2008 psychological evaluation report. Lugo maintained that he did not commit the crime or have any part in its commission, and he expressed the belief that Lopez's killer was her soon-to-be ex-husband. Lugo contended that no evidence linked him to the murder and that he was "convicted [based] on circumstantial evidence" and "a coerced confession" that was "the result of lack of sleep over a three-day period and the horrific experience of being in jail for the first time." He claimed that certain elements of his confession matched the actual facts of the murder because the police officers hinted at those facts during questioning, but that "[o]ther elements did not match the crime and the prosecution chose only those elements that fit their theory and dismissed the other[s]." In Lugo's opinion, he was convicted, in part, because "the officers lied" and the "judge was 'crooked.' " According to Lugo, his case is still "in appeals."
According to the psychological evaluation report, Lugo was attempting to obtain further DNA testing of items in Lopez's car in order to exonerate himself. The record does not contain further information concerning those proceedings.
The psychologist performing the evaluation of Lugo in 2008 noted that it was "complicated" for him to rate the level of Lugo's insight as part of assessing Lugo's risk for future violence because Lugo "continues to deny his culpability despite his conviction." The psychologist stated, "This leaves us with a certain level of unpredictability on this factor, but with the view that the inmate does not accept responsibility for his crime, and thus is unable to fully explore related elements of remorse or remediation." The psychologist stated that Lugo "does not have a negative attitude," with the caveat that "he does cast aspersions on the legal system and its proponents/employees." The psychologist concluded that "[d]espite the fact that the inmate is... viewed as not taking responsibility for his behaviors in the life crime, and is without related elements of remorse or empathy or remediation, he remains in the low range" regarding his propensity for future violence.
The parole board concluded that Lugo "was not suitable for parole [because he] would pose an unreasonable risk of danger to society or a threat to public safety if released from prison." According to the Board, it reached its conclusion by weighing the considerations provided for in the applicable regulations. (Cal. Code Regs., tit. 15, § 2402.) The Board noted that although several factors weighed in favor of Lugo's suitability for parole, including Lugo's positive conduct and activities while in prison and lack of criminal history, they were outweighed by negative factors. In reciting the negative factors, the Board focused on (1) the fact that the murder was "committed in an especially heinous, atrocious and cruel manner"; (2) Lugo's current attitude toward the crime; and (3) Lugo's lack of remorse.
With respect to Lugo's current attitude toward the crime the Board stated, "[W]e took note of the fact that you never once mentioned the victim or the victim's family. And, essentially, even to this point, in recent reports,... you indicate there was no evidence linking you to a murder, although we do have a trial court conviction.... Also, even as of recent, you are still accusing the officers of lying, the judge being crooked and that there were some of the confessions that were crooked. So, there does appear to be some denial on your part."
With respect to the lack of remorse, the Board stated, "[W]e also made the notation that you've actually performed no acts to indicate any presence of remorse. Certainly, continuing to deny the crime is your right, but you could still have remorse without admitting to the crime."
II
DISCUSSION
A. Standards Governing the Board's Decision on Parole Suitability
In considering Lugo's contention that the Board violated his right to due process in making its decision on parole suitability, 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 or past 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).)
The criteria that the Board is required to use in making a suitability determination are set forth in applicable regulations. The regulations provide in part:
In this case, the applicable regulations are those that apply to prisoners who, like Lugo, committed murder after November 8, 1978. (Cal. Code Regs., tit. 15, § 2402.)
"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, § 2402, 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 (Rosenkrantz), fn. omitted, citing Cal. Code Regs., tit. 15, § 2402, 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, citing Cal. Code Regs., tit. 15, § 2402, 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, § 2402, 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.4that 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 [In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence)], 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, 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 post incarceration 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.)
Our Supreme Court has pointed to several factors that, when coupled with the nature of the commitment offense, may serve to demonstrate current dangerousness. As relevant here, lack of insight or remorse 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"].) Our Supreme Court has explained "that expressions of insight and remorse will vary from prisoner to prisoner and that there is no special formula for a prisoner to articulate in order to communicate that he or she has gained insight into, and formed a commitment to ending, a previous pattern of violent behavior." (Shaputis, at p. 1260, fn. 18.)
C. The Board's Decision Was Supported by "Some Evidence"
As we have explained, the Board in this case relied on more than merely the nature of the commitment offense to conclude that Lugo would pose a risk of current dangerousness to the public if released on parole. Specifically, the Board noted Lugo's lack of remorse and his current attitude toward the commitment offense, including that he accused the trial judge of being "crooked" and the police officers of lying.
Lugo contends, however, that the Board was not permitted to consider these factors in making its suitability decision. Lugo relies on Penal Code section 5011, subdivision (b), which states that the Board "shall not require, when setting parole dates, an admission of guilt to any crime for which an inmate was committed." Lugo further relies on California Code of Regulations, title 15, section 2236, which states in relevant part: "The facts of the crime shall be discussed with the prisoner to assist in determining the extent of personal culpability. The board shall not require an admission of guilt to any crime for which the prisoner was committed. A prisoner may refuse to discuss the facts of the crime in which instance a decision shall be made based on the other information available and the refusal shall not be held against the prisoner."
Premising his argument on the fact that he denies any involvement in the commission of Lopez's murder, Lugo contends that the Board impermissibly conditioned parole on his admission of guilt by focusing on (1) the fact that Lugo had made no expression of remorse and (2) Lugo's attitude toward the commitment crime. Lugo contends that absent these impermissibly considered factors, the Board's conclusion regarding his current dangerousness lacks "some evidence" in the record, aside from the immutable facts of the commitment offense, and thus violates his right to due process.
To address Lugo's argument, we consider, in turn, whether the Board was permitted under Penal Code section 5011, subdivision (b), and California Code of Regulations, title 15, section 2236, from relying on (1) Lugo's lack of remorse; and (2) Lugo's current attitude toward the commitment offense.
The Attorney General argues that because Penal Code section 5011, subdivision (b) refers to "setting parole dates," it applies "only applies when the Board sets a parole date, not when the Board considers suitability for parole." We reject this argument. A hearing to determine whether an inmate is suitable for parole is part of the process of setting a parole date. (See Pen. Code, § 3041, subd. (b) [stating that at a hearing to set a parole date, the Board "shall set a release date unless it determines that... public safety requires a more lengthy period of incarceration"]; In re Dannenberg (2005) 34 Cal.4th 1061,1078-1079 (Dannenberg) [providing an overview of the parole decision process].)
1. Lack of Remorse
In focusing on Lugo's lack of remorse to find him unsuitable for parole, the Board properly acknowledged that it could not require Lugo to admit guilt for the commitment offense, but it then told Lugo that "you could still have remorse without admitting to the crime." As we will explain, we disagree.
Dictionaries define "remorse" as "a gnawing distress arising from a sense of guilt for past wrongs" (Webster's 3d New Internat. Dict. (2002) p. 1921, italics added) and "[d]eep regret or guilt for doing something morally wrong." (Oxford English Dict. [as of Jan. 14, 2010], italics added.) Thus, by definition, Lugo could not express remorse without admitting guilt for a past wrong. As a result, by deciding that Lugo was not suitable for parole based on the factor that he had not demonstrated remorse, the Board impermissibly required Lugo to admit that he was guilty of the commitment offense in deciding whether to set a parole date. Our decision is consistent with case law holding that Penal Code section 5011 prohibits the Board or the Governor from requiring that the prisoner accept responsibility for or show insight into a crime that he denies committing. (See In re Aguilar (2008) 168 Cal.App.4th 1479, 1491 [an argument that the Governor could deny parole on the ground that a prisoner, who claimed innocence, did not "accept responsibility for his crime" is precluded by the statement in Pen. Code, § 5011, subd. (b) that the Board shall not require an admission of guilt when setting parole dates]; In re Palermo (2009) 171 Cal.App.4th 1096, 1110-1111 [in stating that the prisoner lacked insight into the crime in that he contended that the shooting was an accident, and that he should have been convicted of manslaughter instead of second degree murder, the Board impermissibly required an admission of guilt to second degree murder]; cf. Dannenberg, supra, 34 Cal.4th at p. 1099 [acknowledging the argument that because the Board based its denial of parole on the consideration that the prisoner " 'needs to accept full responsibility for the crime... and discontinue his efforts to minimize his responsibility for that,' " the Board may have violated Pen. Code, § 5011, subd. (b), but declining to "consider the technical validity" of the argument because it was, in any event, harmless due to the Board's "peripheral" reliance on that factor].)
We stress that our decision that the Board impermissibly relied on Lugo's lack of remorse is premised on the fact that Lugo completely denied involvement in Lopez's murder. Our decision would be different had Lugo acknowledged some involvement in the murder, but simply attempted to minimize his involvement or culpability. Our decision is thus in harmony with cases holding that when a prisoner acknowledges his involvement in the commitment offense, but attempts to minimize his role, the Board may properly rely on lack of remorse or lack of insight in 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."].) We agree that in such a circumstance, the Board would not be requiring an admission of guilt from the prisoner as a condition of parole because the prisoner already acknowledged guilt.
2. Current Attitude Toward the Commitment Offense
We next examine whether the Board was permitted to rely on Lugo's current attitude toward his commitment offense in reaching its suitability decision. As we have described, the Board noted that Lugo contended that there was no evidence linking him to the crime, that the police officers lied and that the judge was "crooked."
At the outset, we note that the applicable regulations permit the Board to rely on the prisoner's "past and present mental state" and his "past and present attitude toward the crime" in deciding suitability for parole. (Cal. Code Regs., tit. 15, § 2402, subd. (b).) The Board's focus on Lugo's current attitude toward the commitment offense plainly falls within the scope of these factors.
The issue before us is whether the Board was precluded from relying on Lugo's current attitude and mental state toward the commitment offense because, in doing so, it would be requiring Lugo to make an admission of guilt.
As we will explain, we conclude that the Board was permitted to rely on Lugo's current attitude toward the commitment offense. Although a prisoner cannot be required to discuss the circumstances of the commitment offense or to admit guilt in order to be found suitable for parole (Pen. Code, § 5011; Cal. Code Regs., tit. 15, § 2236), if a prisoner chooses to discuss his view of the commitment offense, to the extent that those remarks go beyond a mere denial of guilt, the Board may consider those remarks to the extent the remarks reveal the prisoner's mental state and attitude, and are thus relevant to the prisoner's current danger to the public. (Cal. Code Regs., tit. 15, § 2402, subd. (b) ["All relevant, reliable information available to the panel shall be considered in determining suitability for parole."].)
Here, the Board did not require Lugo to make a statement about the commitment offense or to comment on his guilt, and it acknowledged during the hearing that Lugo had exercised his right not to speak about the crime. However, Lugo did chose, during the psychological evaluation, to make statements that revealed his current mental state. Lugo chose to express his belief that he was convicted because the police officers lied and the judge was "crooked." In so doing, he revealed that instead of coming to a realistic understanding of why he was convicted, he had developed an unrealistic belief that several persons in authority acted dishonestly to convict him, and had developed an attitude of disrespect for the police officers and judge assigned to his case. Most importantly, Lugo's statements could be interpreted to show that he had not gained insight into the circumstances of his conviction offense.
By its plain terms, Penal Code section 5011 does not prevent the Board from assuming that because the prisoner was convicted by a jury, he is guilty of the commitment offense. It simply prohibits the Board from affirmatively requiring that the prisoner make an admission of guilt. Thus, the Board was permitted to rely on the fact of Lugo's conviction as evidence that he murdered Lopez. It was further entitled to rely on the fact that Lugo was accusing police officers and judges of dishonesty to conclude that Lugo lacked insight into the conviction offense and had a bad attitude toward law enforcement, and thus may still pose a danger to society. (See Shaputis, supra, 44 Cal.4th at pp. 1260, 1261, fns. 18 & 20 [prisoner's lack of insight into the conviction offense established that the circumstances of the commitment offense continued to be probative of the prisoner's current dangerousness].)
In sum, we conclude that the information cited by the Board concerning Lugo's current attitude toward the commitment offense provides "some evidence," beyond the immutable fact of the conviction itself, that Lugo may pose a risk of danger to the public if released on parole. We accordingly conclude that Lugo has not established that the Board violated his due process rights.
DISPOSITION
The petition for a writ of habeas corpus is denied.
WE CONCUR: McINTYRE, Acting P. J. AARON, J.