Opinion
F039775.
7-23-2003
In re THOMAS G. LUPARELLO On Habeas Corpus.
Michael Satris, under appointment by the Court of Appeal, for Petitioner. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Paul D. Gifford, Assistant Attorney General, Allen R. Crown, Acting Assistant Attorney General, Diann Sokoloff, Spencer L. Walker, Constance L. Picciano, Daniel J. Kossick and Julie Garland, Deputy Attorneys General, for Respondent.
We issued an order to show cause in response to a petition for habeas corpus filed by Thomas G. Luparello (petitioner). The petition challenges the decision of the Board of Prison Terms (the Board) finding petitioner unsuitable for parole.
At issue, ultimately, is whether the record supports the Boards conclusion that petitioner has not fully acknowledged and shown remorse for his crime or, on the other hand, whether the absence of such support in the record shows that the Board has denied parole for petitioner in order to implement a broader policy to deny parole to all murderers. (But see In re Capistran (2003) 107 Cal.App.4th 1299 [reviewing Governors denial of parole after Board found prisoner suitable].) We conclude the record amply supports the Boards conclusions and deny the petition.
Procedural History
In 1982, petitioner was sentenced to a prison term of 25 years to life for the first degree murder of Mark Martin in 1981. The Court of Appeal affirmed his conviction. (See People v. Luparello (1986) 187 Cal. App. 3d 410, 231 Cal. Rptr. 832 (Luparello).)
In 2001, petitioner appeared before a panel of the Board for a parole suitability hearing. (See Cal. Code Reg., tit. 15, § 2281.) The panel found petitioner unsuitable for parole because "the prisoner needs additional time in order to fully understand and deal with the causation factors which led to the commission of the crime. Until progress is made, the prisoner continues to be unpredictable and a threat to others."
The panel listed several factors in support of its decision, using the criteria set forth in California Code of Regulations, title 15, section 2281, subdivision (c) ("Circumstances Tending to Show Unsuitability"). The panels decision states: "The offense was carried out in an exceptionally cruel and callous manner. The offense was carried out in a dispassionate or calculated manner such as an execution style murder. The offense was carried out in a manner which exhibits an exceptionally callous disregard for human suffering. The motive for the crime was inexplicable or very trivial in relation to the offense."
Petitioner filed his administrative appeal, asserting as the sole basis that "the enforcement by the Board of Prison terms of the Governors new no parole mandate" denied him various constitutional rights and impermissibly "resentenced" him to a term of life without possibility of parole. The Board denied the appeal on September 11, 2001.
Petitioner filed this petition for writ of habeas corpus after similar petitions were denied in Sacramento County Superior Court and Kern County Superior Court. Once again, petitioner contends the Board as a matter of policy routinely denies parole to life prisoners who are otherwise suitable for parole. He alleges he is suitable for parole and has been denied release only because of the Boards refusal to individually consider the circumstances of his case in accordance with the relevant statutes and administrative rules.
We issued an order to show cause and appointed counsel for petitioner. In his return to the order to show cause, the Attorney General (hereafter, respondent) contends petitioner received individualized review of the factors favoring and disfavoring his suitability for parole. Respondent further contends the "Boards conclusions were supported by the egregious facts of petitioners crime, petitioners failure to participate in beneficial self-help and therapy programming, and petitioners need for additional time to fully understand and deal with the causation factors which led to the victims murder."
Petitioner, through appointed counsel, filed a denial to the return. In this document, petitioner alleges denial of a parole date was "arbitrary and capricious because it goes against all the evidence." He says the Boards overall practices resulted in violation of his constitutional and statutory rights. Finally, petitioner says the Board is required by constitutional precepts of proportionality to establish a fixed date for his release from prison.
Standard of Review
We begin by looking at the Boards stated reasons for its action and determining whether the record supports that reasoning. (In re Rosenkrantz (2002) 29 Cal.4th 616, 685-686 (Rosenkrantz).) To the extent the Board gave individualized consideration of the factors specific to petitioners suitability for parole, and to the extent the Boards articulated reasons are supported by the record before it, petitioner will be unable to establish his parole denial was a result of an undisclosed policy of denying parole for all life prisoners. (Ibid.)
We review the Boards denial under the very deferential "some evidence" standard: "The 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." (Rosenkrantz, supra, 29 Cal.4th at p. 658.) Only if the Boards decision is "devoid of a factual basis" are we entitled to vacate that decision. (Ibid.)
"Penal Code section 3041 provides that with regard to prisoners sentenced to indeterminate prison terms, one year prior to the inmates minimum eligible parole release date, the Board shall normally set a parole date in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public. [Citation.] In addition, the statute provides that the Board shall set a release date 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." (Rosenkrantz, supra, 29 Cal.4th at p. 653.)
Administrative regulations, set forth in the margin, provide general guidance for the Boards determination of suitability for parole. (See Cal. Code Regs., tit. 15, § 2402 (all further references to § 2402 are references to this provision of the administrative code).)
Section 2402 provides in pertinent part:
"(a) General. The panel shall first determine whether the life prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.
"(c) Circumstances Tending to Show Unsuitability. The following circumstances each tend to indicate unsuitability for release. These circumstances are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel. Circumstances tending to indicate unsuitability include:
"(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.
"(d) Circumstances Tending to Show Suitability. The following circumstances each tend to show that the prisoner is suitable for release. The circumstances are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel. Circumstances tending to indicate suitability include:
"(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 prisoners 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."
Our review focuses only upon two issues: the factual basis for the Boards decision and whether the Board engaged in an individualized assessment of petitioners relevant circumstances. We do not review the weight accorded the various circumstances by the Board but, rather, whether the record indicates it did weigh the circumstances. (Rosencrantz, supra, 29 Cal.4th at pp. 679-681.)
Petitioners denial to return asserts: "The Board must be ordered to follow the law and normally grant a parole date to a lifer when he first becomes eligible for release. Grants of parole must become the norm rather than the exception." Nevertheless, petitioner does not assert he is entitled to broad declaratory relief directed toward the Boards treatment of other inmates. Instead, he says he is "suitable for parole as a matter of law" and would have been found suitable "were the Board to follow the legislative directive set forth in section 3041." Because we conclude petitioner is not "suitable for parole as a matter of law," we are not called upon to address the broader issue of the Boards asserted general hostility to granting parole to murderers.
The Divergent Characterizations of the Crime
It is undisputed that only one listed "circumstance tending to show unsuitability" is arguably applicable, namely, the nature of the offense for which petitioner was sentenced. (See § 2402, subd. (c).) It is undisputed that several of the "circumstances tending to show suitability" are present, including lack of prior criminal or juvenile record, exemplary performance in prison, and the existence of realistic plans for release. (See § 2402, subd. (d).)
In dispute, however, is the Boards conclusion that the facts of the underlying crime are dramatically different than acknowledged by petitioner, and its consequent finding that petitioner lacked understanding of the nature and magnitude of the offense. (See § 2402, subd. (d)(3).) The nature of the dispute becomes clear only with a rather extended description of the crime from the Boards perspective and from petitioners.
A. The Crime as Reflected in the Appellate Opinion
On petitioners direct appeal from his conviction, the Court of Appeal affirmed the judgment in a published opinion. (See Luparello, supra, 187 Cal. App. 3d 410.) That opinion gives the following account.
Petitioner was a chiropractor. He was romantically involved with Terri Cesak; they lived together. He also had three male housemates. Cesak reconciled with her husband, Ed, and left petitioner. Cesak had been petitioners employee and, before that, a patient. Petitioner "began an intensive search for [Cesak]. He contacted the police, personal friends, and relatives of both [Cesak and her husband], and requested a patient to go to Eds workplace and follow him home." Petitioner hired another patient, Carlos Orduna, and Ordunas friend Johnny Salmon "to help find [Cesak]." (Luparello, supra, 187 Cal. App. 3d at pp. 418-419.)
The three men, together with another man identified only as "Spooky," met prior to going to the home of the victim, Mark Martin, who was a good friend of Ed. Salmon said they were going to "thump" Martin, Orduna agreed, and petitioner said "he would like the information at any cost." (Luparello, supra, 187 Cal. App. 3d at p. 419.) (Petitioner acknowledged that he never called or otherwise contacted Martin directly to ask for information; he also acknowledged that Cesak at all times would have been able to contact petitioner had she wanted to do so.)
At the meeting to plan the confrontation with Martin, "Orduna was carrying a sword and Salmon had nunchakus. Salmon also loaded a .22 caliber rifle belonging to Luparello." Petitioner, one of his housemates (Wilson), and the other men then went to Martins house. Wilson, Orduna, and Salmon got out and Orduna and Salmon instructed Wilson "to lure Mark Martin from his house and they would beat him." Orduna and Salmon, "carrying their respective weapons," waited in the shadows. Wilson refused to lure Martin outside, however, and "asked only if [Martin] knew [Cesaks] whereabouts." (The opinion does not report Martins response.) The men left and the other two "later chided [Wilson] for not getting Martin to leave his house." (Luparello, supra, 187 Cal. App. 3d at p. 419.)
The next day, petitioner "telephoned [a relative] of Mark Martins very good friend, and stated: [I have] some Mexicans that are going to take care of Mark Martin." (Luparello, supra, 187 Cal. App. 3d at p. 433.) That evening, Orduna and Salmon left petitioners house, armed, and went to Martins house. Orduna lured Martin outside with a story about needing help with his car (that is, no one asked Martin for information about Cesak this time) and someone (presumably Salmon) shot Martin repeatedly. Martin died at the scene. (Luparello, supra, 187 Cal. App. 3d at p. 419.)
Petitioner was charged with conspiracy to commit assault and with first degree murder. The prosecutions theory of the case against petitioner was that the murder was a reasonably foreseeable consequence of the conspiracy to commit assault. On appeal, petitioner "insisted killing the victim was inconsistent with the conspiratorial goal of obtaining information regarding [Cesaks] whereabouts and therefore could not be a natural and probable consequence of the conspiracy." (Luparello, supra, 187 Cal. App. 3d at p. 443.)
The Court of Appeal rejected this argument and reviewed the relevant evidence: "Luparellos effort to gain information was concerted, and the enlisting of Orduna and Salmon to interrogate and thump a would-be informer was not the only avenue of inquiry he pursued. Indeed, he contacted the police and relentlessly pursued Ed and [Cesaks] friends and relatives for information. When his efforts went unrewarded and his frustrations mounted, Luparellos threats and intimidations became more pointed. His statement regarding Mexicans who were going to take care of the would-be victim is such an example. In this context, Martins eventual killing may be seen as yet one more escalation of Luparellos desire to gain information at any cost. While Martin obviously provided no information here, his death was a warning to those who had not yet assisted Luparello that they should." (Luparello, supra, 187 Cal. App. 3d at p. 443.)
B. Petitioners Account at the Parole Suitability Hearing
At the hearing of March 7, 2001, petitioner denied making the threatening telephone call. He acknowledged that Salmon was armed with a .22-caliber pistol, but denied it belonged to petitioner. He also denied hearing anyone say they were going to "thump" Martin. He denied knowing his henchmen were going to use physical force in any way against Martin.
Petitioner also acknowledged he had given an account in 1997 of his own involvement in Martins murder (after 16 years of imprisonment for the crime) when interviewed by a prison psychologist. In that interview, petitioner stated of the murder: He "was part of a group of people who were asked by the police department to search for a missing person. He complied with their request, and part of the individuals in the search group somehow wound up dead." The psychologist concluded: "The inmate took responsibility for being part of a search group at the request of the police department, and isnt sure how he wound up convicted of conspiracy to assault and [of] first degree murder."
However, petitioner indicated that by the time of the hearing four years later, he had come to understand his conviction after "[a] very in depth self analysis of myself, my personal behavior and conduct and the applicable law to my conduct."
His "understanding" was expressed consistently throughout the hearing. When asked what he thought would happen when he sent out armed men with instructions to get the information at any cost, petitioner replied: "[How] can I get the information by terminating the life of an innocent person, and I did not believe that an assault or homicide would take place. That accomplished nothing. That accomplished nothing for what I wanted." Question: "And your assumption was that there wasnt going to be any violence that could cause death?" Petitioner: "No. I believed that at worst the intimidation factor would obtain the information." A Board commissioner also asked petitioner if he thought he had been "acting in a nefarious fashion" in 1981. Petitioner replied: "In hindsight, bad judgement, yes, sir." Asked who was responsible for his conviction, petitioner acknowledged: "I am."
In his petition for writ of habeas corpus, petitioner describes himself as convicted of "Conspiracy to Commit an Assault by the Vicarious Liability Doctrine, said charges bootstrapped by the Natural and Probable Consequence Doctrine to Penal Code Section 187 conviction for first degree murder." His denial to respondents return to our order to show cause is premised wholly on the claim that petitioner "did not even intend the killing." The reply states: "Although Luparello set the wheels in motion which ultimately resulted in the victims death, he neither intended for that to happen nor, unfortunately, subjectively apprehended the danger of such happening. Luparellos level of culpability in the murder is thus reduced."
C. "Some Evidence" Supports
the Boards Decision
The Board concluded: "The prisoner needs additional time in order to fully understand and deal with the causation factors which led to the commission of the life crime. Until progress is made, the prisoner continues to be unpredictable and a threat to others."
We reject petitioners claim that the Board relied solely on the gravity of petitioners offense to deny parole. As the quoted excerpt indicates, the Board relied upon petitioners failure to recognize and understand the gravity of his role in the offense. Accordingly, petitioners claim that the offense was not egregious when compared to other first degree murders does not address any issue in the present case. To state the matter in rather summary terms, the problem is not that the Board makes too much of the crime, but that petitioner makes too little.
It is apparent that the Board reasonably could have accepted the Court of Appeals version of the facts. Accordingly, the Board could have inferred that petitioner heard Salmon say they were going to "thump" Martin and responded that he wanted the information at any cost. It could have inferred petitioner heard the men tell Wilson they were going to beat Martin (or at least knew of their plan when he heard them chastise Wilson for failing to lure Martin outside). It could have determined that petitioner made a telephone call explicitly threatening Martin the same day Martin was murdered. Yet petitioner denied all three of these items, and those denials were key to his claim of reduced culpability.
Further, the Board was confronted with a crime that made absolutely no sense in petitioners account: As petitioner himself pointed out, it would have been entirely counterproductive to immediately murder Martin if the assailants truly had been sent to extract information from him. Yet petitioner provided no information whatsoever about his instructions to his henchmen before their second visit to Martin. It is entirely implausible he told them nothing; it is entirely implausible they would have executed Martin without believing (correctly or not) that petitioner wanted them to do so; it is entirely implausible that petitioner could not shed some further light on this crime.
This is not to say that petitioner, as a condition of parole, is required to acknowledge that he ordered Martins execution if he did not do so. (See People v. Kronemyer (1987) 189 Cal. App. 3d 314, 366, 234 Cal. Rptr. 442.) But full acknowledgement of petitioners role in the crime requires a great deal more than (to paraphrase) "in hindsight I used bad judgment in hiring these men." Demonstration of remorse requires a great deal more than an articulation, doggedly in the passive voice, that he is sorry "for what has happened" and he tries each day to be "responsible" "so that like circumstances dont ever arise." It requires, at the least, that he provide a full accounting of his role in the crime. We conclude that far more than "some" evidence supports the Boards denial of petitioners suitability for parole.
The Regulatory Factors
Petitioner contends the Board erred in its identification of factors tending to show petitioners unsuitability for parole. He contends there were no such factors, for reasons we will discuss below, and in light of overwhelming countervailing factors favoring suitability, the Boards decision is arbitrary, capricious, and unreasonable. Petitioner also says the Board did not fully evaluate the factors favoring suitability for parole and, therefore, the Boards decision is not entitled to the same deference that would be given to a decision reflecting due consideration of all relevant factors.
First, we reject petitioners view of the factors tending to show unsuitability for parole. He contends, initially, that the Board was not entitled to consider the circumstances of the murder in any way, because petitioner did not personally kill anyone. He relies on the introductory sentence in the portion of the regulations addressing the "commitment offense": "The prisoner committed the offense in an especially heinous, atrocious or cruel manner." At most, he says, the record shows his "co-conspirators committed the murder in an especially heinous" manner.
The regulation cannot be read to require a personal killing by the prisoner. If so, it would exculpate a drug lord who expressly ordered the torture murder of a rival, for example. Petitioners crime, because foreseeable as a natural and probable consequence of the conspiracy to commit assault, is just as much "his" as if he directly ordered it. "Moral culpability is found in homicide cases when, despite the lack of any intent to kill, the consequences of the evil act are so natural or probable that liability is established as a matter of policy." (People v. Roberts (1992) 2 Cal.4th 271, 316, 826 P.2d 274.) From a parole suitability standpoint, one who puts in motion forces that foreseeably result in homicide is just as likely to cause future deaths as someone who actually kills.
Petitioner also complains that the Board found (inconsistently, according to petitioner) that the killing "was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering" ( § 2402, subd. (c)(1)(D)) and "was carried out in a dispassionate and calculated manner, such as an execution-style murder" ( § 2402, subd. (c)(1)(B)).
This claim ignores the evidence that whatever petitioner told his henchmen to do to Martin (and what in fact was done to Martin, if it differed from petitioners instructions) was for the purpose of extracting information from persons who knew and cared for Martin. The "human suffering" of those persons was specifically calculated by petitioner to produce the information he wanted, whether the intended mechanism was assault of Martin or his death. The "execution-style murder" was the means used to create that suffering through the message, "cooperate or you could be next." There was no inconsistency in the findings and both are supported by the record.
Next, petitioner says the Boards decision "failed to show any consideration of virtually all the factors that support parole in this case." Petitioner then sets forth his view of the nine regulatory criteria favoring parole suitability. We will not dwell long on the numerous ways in which the record fails to support petitioners claim. As we have described at length, above, the Board clearly could have concluded that petitioner has done nothing "indicating that he understands the nature and magnitude of the offense." ( § 2402, subd. (d)(3).)
Further, the Board clearly could discount petitioners claim that he "has experienced reasonably stable relationships with others." ( § 2402, subd. (d)(2).) Not only did this matter arise from the breakup of an extramarital affair with a subordinate employee in petitioners office, petitioner also hired his patients as henchmen and sought to cause one of his housemates to be involved in the crime against his will.
Finally, the Board could have discounted the claim that petitioners present age — mid-50s — "reduces the probability of recidivism." (§ 2402, subd. (d)(7).) Even when young, petitioner hired others to do his criminal bidding; nothing about his current age indicates he would be incapable of doing so in the future.
In fact, the only favorable circumstances clearly applicable were petitioners lack of a juvenile record and history of violent crime ( § 2402, subd. (d)(1) & (6)) and his exemplary institutional behavior ( § 2402, subd. (d)(9)). The Board expressly commended petitioner for his positive institutional behavior, but concluded "these positive aspects of his behavior do not outweigh the factors of unsuitability." Accordingly, we conclude the record demonstrates a reasoned consideration and weighing of the factors favoring and disfavoring parole suitability.
Petitioners Proportionality Claim
In a rather abbreviated argument, petitioner argues that the Board "should be required to set a primary term for [petitioner] uniform with the terms of other like-offenses, and proportionate to his culpability." He relies on the constitutional precepts of proportionality articulated in People v. Dillon (1983) 34 Cal.3d 441, 194 Cal. Rptr. 390, 668 P.2d 697. He says that proportionality of sentence requires that his term be fixed according to a matrix adopted by the Board, which establishes terms ranging from 26 to 30 years for various types of first degree murder. (See Cal. Code Regs., tit. 15, § 2403.)
Contrary to petitioners implied premise, however, his circumstances are fundamentally unlike those prisoners whose base term is established by the Board through application of the matrix. The matrix is applied only to those persons who are deemed suitable for parole — that is, who will not "pose an unreasonable risk of danger to society if released from prison." ( § 2402, subd. (a).) As long as petitioner is deemed unsuitable for parole — as long as the Board concludes upon some evidence that petitioner does pose such a risk — it does not matter whether he has served a term that might be considered appropriate for a prisoner who has successfully rehabilitated himself: "Regardless of the length of time served , a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison." ( § 2402, subd. (a), italics added.)
Disposition
The petition for writ of habeas corpus is denied.
We concur: HARRIS, J., CORNELL, J.