In re Hernadez 10/26/11 CA6

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State: California

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

Docket No: H036515

Case Date: 02/29/2012

Preview:Filed 10/26/11 Certified for publication 11/22/11 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

In re JESUS HERNANDEZ, on Habeas Corpus.

H036515 (Santa Clara County Super. Ct. No. 158358)

In May 1993, following a court trial, petitioner Jesus Hernandez was convicted of second degree murder and was found to have personally used a firearm in committing that murder. He was sentenced to 15 years to life, plus two years, for a total term of 17 years to life. On April 22, 2010, the Board of Parole Hearings (Board) found Hernandez unsuitable for parole. The Santa Clara County Superior Court subsequently granted Hernandezs petition for a writ of habeas corpus and ordered the Board to conduct a new hearing for him within 30 days. The superior court found the Board used a comparative analysis formula rather than articulating a nexus between the life crime and its conclusion that Hernandez is unsuitable for parole. The court also found the Board erred in denying parole based on Hernandezs failure to admit responsibility for the life crime. Respondent S.M. Salinas, warden of the Deuel Vocational Institution (Warden), appeals from the order. He argues that there is some evidence in the record to support the conclusion that Hernandez poses a current risk of danger to society. Alternatively, Warden argues the superior court improperly ordered the Board to conduct a new hearing within 30 days, despite the Boards statutory obligation to provide 90 days notice of a parole hearing to interested parties.

Hernandez raises a constitutional challenge to the 2008 amendments that Marsys Law made to Penal Code section 3041.5,1 claiming those amendments violate the ex post facto clauses of the federal and California Constitutions. As explained below, we reject that argument. We agree there was some evidence to support the Boards conclusion that Hernandez was unsuitable for parole and shall reverse. We need not, and do not, reach the alternative argument that the superior court erred in ordering the Board to conduct a new hearing within 30 days. I. A. FACTUAL AND PROCEDURAL BACKGROUND The 2010 Board hearing 1. The life crime

The Board incorporated by reference the facts relating to the commitment offense from the probation report, and summarized those facts as follows. "On 10/24/82, deputies were dispatched to a makeshift race track in Morgan Hill, California. While en route, they discovered that family members had already transported the victim to the hospital. Deputies then split their resources. Some proceeded to the hospital while others responded to the race track to preserve any evidence and interview witnesses. At the hospital, the victims son informed deputies that their father raced horses on a non-professional basis. While at the track earlier in the day, they tried to arrange a race. When this proved unsuccessful, he decided to play poker in the back of his pickup truck in the camper shell instead. Near twilight, the victims son was standing about 50 yards from the truck when he heard two or three shots. When a friend yelled that his father had been hit, he went toward the truck, saw a man, later identified as The Marsys Law amendments to Penal Code section 3041.5 went into effect on November 5, 2008, after voters approved Proposition 9, otherwise known as the "Victims Bill of Rights Act of 2008: Marsys Law." (Pen. Code,

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