In re Avalos 2/28/08 CA2/1

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State: California

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

Docket No: B202101

Case Date: 06/11/2008

Preview:Filed 2/28/08 Inre Avalos CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE B202101 In re JUSTO AVALOS, On Habeas Corpus. (Los Angeles County Super. Ct. No. BH004543)

PETITION for a writ of habeas corpus following order of the Superior Court of Los Angeles County, Steven R. Van Sicklen, Judge. Petition granted. Justo Avalos, in pro. per., and Nancy L. Tetreault, under appointment by the Court of Appeal, for Petitioner. Edmund G. Brown, Jr., Attorney General, and Jennifer L. Dolan, Deputy Attorney General, for Respondent. ___________________________________

2. In 1984, Justo Avalos was convicted of second degree murder and sentenced to an indeterminate prison term of 15 years to life. In 2006, the Board of Parole Hearings found Avalos suitable for parole and set a parole date. The Governor reviewed the Board's decision and reversed it, finding Avalos was not suitable for parole. Avalos challenges that decision by way of the petition for a writ of habeas corpus now before us, contending the Governor's decision is not supported by "some evidence." We agree, and therefore grant the petition as prayed.1 FACTS A. The Commitment Offense At about 1:30 a.m. on May 10, 1981, Justo Avalos and Jose Cisneros walked out of the Wagon Wheel Bar where Avalos worked as the manager, arguing about a waitress Avalos had fired. Juan Manriques, who knew both men, followed them outside and told them to stop arguing. The three men returned to the bar but a few minutes later Cisneros said he was going home and left the bar. Avalos followed Cisneros. Manriques, knowing that Avalos carried a gun, also went outside and saw Avalos shoot Cisneros four times. At the time of the shooting, the unarmed Cisneros had his hands by his sides and offered no resistance. Cisneros died from multiple gunshot wounds.2

1 We recognize that this issue is pending before the Supreme Court in In re Dannenberg (2007) 156 Cal.App.4th 1387, review granted February 13, 2008, S158880, In re Jacobson (2007) 154 Cal.App.4th 849, review granted December 12, 2007, S156416, In re Shaputis (Aug. 21, 2007, D049895) [nonpub. opn.], review granted October 24, 2007, S155872, In re Cooper (2007) 153 Cal.App.4th 1043, review granted October 24, 2007, S155130, and In re Lawrence (2007) 150 Cal.App.4th 1511, review granted September 19, 2007, S154018.

As described by Avalos's lawyer at his 2006 parole hearing, Avalos "was working in a bar, he's trying to deposit money, he has past experience with this customer[], he has arguments, he's been threatened by him, and at some point a confrontation as to whether the bar maid should be rehired or not after she's been stealing from the bar."
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3. Avalos fled to Mexico (he was here illegally at the time of the murder) but was apprehended about two years later when he returned to the United States. He was convicted of one count of second degree murder, and (in April 1984) sentenced to state prison for a term of 15 years to life. We affirmed the judgment. (People v. Avalos (Jul. 17, 1985, B005547) [nonpub. opn.].) B. The Parole Hearing By the time of Avalos's 2006 hearing, he had been a model prisoner for 23 years. In all that time, he had one "115 rule violation" in 2003 because he participated in a "work stoppage" involving "the entire work force at Chuckawalla State Prison," all 700 of whom were issued rule violation reports notwithstanding that they believed they would be assaulted by other prisoners if they went to work, and one "128 counseling chrono" from 2001 for "tenting [his] bunk" (pulling his blankets down around it so staff could not see what he was doing).3 He has the lowest (best) custody rating possible for a life term prisoner. While incarcerated, he has worked as a cook and porter, and at the time of his parole hearing worked in the gymnasium as a recreation coordinator. All his reports reflect above average behavior in all the positions he has held. He attends ESL classes and has completed vocational landscaping and nursing programs. His instructors describe him as "a role model" because of his He participates in Alcoholics Anonymous. excellent attitude and behavior.

3

According to the California Code of Regulations, a "CDC 115" documents misconduct believed to be a violation of law or is otherwise not minor in nature; a "CDC Form 128-A" documents incidents of minor misconduct. (See Cal. Code Regs., tit. 15,

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