In re Aragon 6/9/11 CA4/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D058040

Case Date: 09/15/2011

Preview:Filed 6/9/11

CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

D058040 In re MICHAEL ALAN ARAGON on Habeas Corpus. (Super. Ct. No. CR139857)

Petition for writ of habeas corpus. Norbert Ehrenfreund, Judge. Petition denied. Tracey Renee Lum, for Petitioner. Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Senior Assistant Attorney General, Phillip Lindsay and Linnea D. Piazza, Deputy Attorneys General, for Respondent.

I. INTRODUCTION In January 1993, Michael Alan Aragon fatally stabbed Michael Johnson during a gang fight. Aragon pled guilty to second degree murder, and he is currently serving a sentence of 15 years to life in prison. In October 2009, at Aragon's fourth parole

hearing--approximately 15 years after his June 1994 sentencing--a panel of the Board of Parole Hearings (Board)1 again found Aragon unsuitable for parole. Aragon, who is now 35, filed this petition for writ of habeas corpus challenging the Board's decision. Aragon's primary contention is that the Board's decision violates his right to due process because the decision is not supported by "some evidence" that he poses a current threat to public safety. Applying the extremely deferential "some evidence" standard of review, discussed by the Supreme Court in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), we reject Aragon's contention and conclude that the record contains some evidence that Aragon poses a current threat to public safety. Specifically, we conclude that there is some evidence to support the Board's decision that Aragon remains a current threat to public safety in light of the limited therapeutic gains that he has made in addressing a serious substance abuse problem related to his criminality. Aragon also claims that the Board should have applied the "clear and convincing" burden of proof in determining whether he was suitable for parole, and that the Board's application of a change in the law extending the time between parole hearings constitutes an ex post facto violation.2 We reject these contentions as well, and deny the petition.

1 For ease of reference, we refer to a panel of the Board as the "Board." Pursuant to Penal Code section 3041.5, a panel of the Board may determine an inmate's suitability for parole. 2 In considering Aragon's ex post facto claim, we address two recent decisions of this court: In re Vicks (2011) 195 Cal.App.4th 475 (Vicks), and In re Russo (2011) 194 Cal.App.4th 144 (Russo). 2

II. FACTUAL AND PROCEDURAL BACKGROUND A. The commitment offense At Aragon's October 2009 parole suitability hearing, the presiding commissioner read a description of the commitment offense and the ensuing investigation into the record. The following is an excerpt of that description: "January 22, 1993, there was a confrontation near Mission Bay High School among several members of three different gangs and a group of Mission Bay High School students, including several gang members. There had been other confrontations between the two groups, one just the day before, arising from an ongoing dispute between Dwayne Madison . . . , a student from the high school, and Charles Mouzon . . . and George Pelayo, members of the smaller group. On the day of the incident, the students were in the gym watching a basketball game when they were informed that there was a group of young men at the west end of the school campus. The students, estimates ranging from 15 to 150, left the gym, crossing a street, and proceeded to where approximately 15 young men, including Michael Aragon were standing. There was an exchange of words and threats. Madison challenged both Mouzon and Pelayo to a fight before there was any physical contact. . . . In the resulting brawl, one student, Michael Johnson . . . was fatally stabbed by Michael Aragon and [an]other student, Sefe Martinez, . . . received non-life-threatening stab wounds. . . . The smaller Hispanic group [that Aragon was with] consisted of members of three different gangs, Magicians Club[,] that's TMC [Aragon's gang], Mission Bay Locos, and Dead End 132. Later that day, Michael Aragon and his co-companion went to a friend's house and [Aragon] started crying and told his girlfriend, 'I killed somebody.' A few days later, he again told his girlfriend that he had stabbed the person who had died during the fight and told her, 'I'm going to get caught sooner or later so if you're going to tell go ahead.' [Aragon] later told a police officer that he had stabbed Michael Johnson once in the chest with the kitchen knife he'd just recently started carrying for protection. He also admitted stabbing Martinez once in the arm. He also gave police the names of all the members of the smaller group. These 3

numbered approximately 12 and were members of three youth gangs. They were all eventually arrested." B. The criminal proceedings In January 1994, Aragon pled guilty to second degree murder (Pen. Code,

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