In re Molina 4/16/09 CA2/6

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State: California

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

Docket No: B208705

Case Date: 07/30/2009

Preview:Filed 4/16/09 In re Molina CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

In re MIGUEL MOLINA, on Habeas Corpus.

2d Crim. No. B208705 (Super. Ct. No. CR13298) (San Luis Obispo County)

How should the Board of Parole Hearings (Board) determine a prisoner's suitability for parole? Our Supreme Court in In re Shaputis (2008) 44 Cal.4th 1241and In re Lawrence (2008) 44 Cal.4th 1181 gives guidance to the Board and the courts. Yet, numerous appellate decisions have interpreted these Supreme Court decisions in a variety of ways. We add to the plethora of cases. Here the majority and dissent consider the issue whether the prisoner under consideration for parole is a current danger to society. Our majority opinion concludes that deference to the Board must end where there is no evidence to support its decision. B. Curry, the Warden of the Correctional Training Facility (Warden), appeals a judgment granting a writ of habeas corpus and ordering the release of petitioner Miguel Molina. The superior court vacated the decision of the Board which had ruled that Molina was not suitable for release on parole. We conclude, among other things, that there is no evidence to support the Board's finding that Molina posed a current danger to society if released. We affirm.

FACTS On December 5, 1984, Ruben Morales was watching television in a room of a "bunkhouse." Molina entered the room with a .22 caliber rifle. He shot and killed Morales. Dr. Stephen Jobst, a pathologist, determined that Morales "was shot a minimum of 15 times and a maximum of 18 times." At the preliminary hearing, Jose Antonio Romero Zarate testified that he was Molina's coworker. Zarate lived at the residence where the shooting occurred and was there when Morales was killed. He said Morales did not live at the bunkhouse, but resided in another city. Zarate testified that he and Molina had been living in the same room of the bunkhouse in May or June of 1984, in November of 1984, and between December 1 to December 5, 1984. Molina was not living there on the day of the shooting because he was expecting his brother to move there and stay in his room. Molina told Zarate that he had paid the current rent. Zarate testified that Molina's clothes and belonging were in the bunkhouse room on the day Morales was killed. He said that prior to the shooting Morales and Molina had been working together. They had an argument at work. Morales pulled out a knife and had chased Molina with it. After the shooting, Molina fled. He was arrested four months later. After his arrest, Molina told detectives that Morales had stabbed him at work. Molina pled no contest to second degree murder. He was sentenced to a state prison term of 15 years to life. At the 1985 sentencing hearing, the prosecutor said that second degree murder was "appropriate in this case." He noted that prior to the offense Molina and Morales had argued at work, and that Morales had pulled a knife on Molina. On September 25, 2002, the Board found that Molina was suitable for parole and "would not pose [an] unreasonable risk of danger to society." The Governor reversed the Board's decision. The Governor's decision was vacated by the superior court

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which granted a writ of habeas corpus. The Governor's decision subsequently was upheld on appeal. The Hearing Before the Parole Board At his 2006 parole hearing, Molina said, "It's very hard for me to wake up every day knowing that I took the life of a human being. And that's why I would like to ask Mr. Morales' family for forgiveness." Molina said he had lived at the residence where the crime took place and that Morales did not live there. Molina presented evidence about his background, his family history, his rehabilitation, his plans upon release, his good behavior while in prison, and other positive parole suitability factors. The Board previously had requested a psychological evaluation. The psychologists concluded that Molina "poses no risk to society." The Board denied parole. It noted that Molina claimed that he had lived at the residence where the crime occurred and that Morales did not live there. The Board said that it had reviewed the transcripts of his criminal proceeding and found: 1) there was no evidence or reference to any facts to support Molina's claim that he ever lived there, and 2) the evidence in that record showed that Morales lived there. It did not find that Molina lied, but found that his account of who resided there was inconsistent with the facts in the official record. Because of this inconsistency, there was "confusion" and a need for a new factual investigation. The Board found that his crime was egregious, but the remaining parole suitability factors were either positive or excellent. The Superior Court Proceedings Molina filed a petition for a writ of habeas corpus. In granting the writ, the superior court found, among other things, that the Board made findings about the commitment offense that were not supported by any evidence and that there was no evidence that Molina was a current threat to public safety. It noted that the Board claimed that Molina's account of his offense was not consistent with the official record because he said that he had lived at the bunkhouse and that Morales did not live there. The court concluded that the evidence in the record showed that Molina had lived at the

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bunkhouse and there was no evidence that Morales lived there. It said that the Board "found Molina unsuitable only because they convinced themselves that whether Molina went to Morales' 'residence' or Morales went to Molina's 'residence' is of controlling importance." But that was "not probative of whether Molina presents an 'unreasonable risk'" to society. DISCUSSION I. Findings on Facts Involving Molina's Crime The Warden contends that we must defer to the Board's findings about the facts relating to Molina's offense. He claims the trial court improperly rejected findings the Board made about the commitment offense. We disagree. A parole board has substantial discretion to weigh the relevant factors involving an inmate's history and rehabilitation in deciding whether to grant or deny parole. But that discretion is not unlimited. "[A] petitioner is entitled to a constitutionally adequate and meaningful review of a parole decision . . . ." (In re Lawrence, supra, 44 Cal.4th 1181, 1205.) If the Board's decision on the parole suitability factors "is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner's petition for writ of habeas corpus . . . ." (In re Rosenkrantz (2002) 29 Cal.4th 616, 658.) To protect a prisoner's due process rights and to prevent arbitrary decision making, the Board's findings must be supported by a "modicum of evidence." (In re Lawrence, supra, 44 Cal.4th at p. 1205.) A court may properly vacate a Board decision that relies on factual findings which have no evidentiary support. (Ibid.) We, like the trial court, conclude that the Board based its decision on assumptions about who resided at the murder scene. But these assumptions are ill-founded. The Board found that the evidence in Molina's criminal case showed that Morales was killed at "[Morales'] own home." It consequently concluded that this contradicted Molina's claim that Morales did not live at the bunkhouse. This finding is not supported by any evidence. The Warden claims the court had no authority to make

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this ruling. We disagree. Although the court may not weigh or reweigh the evidence, or decide credibility, it must decide whether there is some evidence in the record to support the Board's factual findings. (In re Lawrence, supra, 44 Cal.4th at p. 1212.) In his return to the petition for writ of habeas corpus in the trial court, the Warden cited six references to Zarate's testimony in the preliminary hearing transcript. He claimed they support the Board's finding that Morales was living at the bunkhouse. In one reference relied on by the Warden, Zarate testified that on December 5, 1984, there was another man who was going to move into the room with him at the bunkhouse. But this testimony does not support the Board's finding because Zarate was not referring to Morales as the individual who would be moving into the bunkhouse. Another portion of Zarate's testimony relied on by the Warden involved a list of names of the individuals who had lived at the bunkhouse. But this provides no evidentiary support because Morales is not included in that list. The remaining four references to Zarate's testimony relied on by the Warden make no mention of Morales. In his return, the Warden also alleged that a November 1985 probation report supplies evidence that Morales lived at the bunkhouse. The report contains no such evidence. It states that Zarate told police that the shooting took place in Zarate's room at the bunkhouse. The only evidence regarding where Morales lived came from Zarate's testimony, and it refutes the Board's finding. Zarate testified that although Morales was in the bunkhouse room on the day of the shooting, Morales did not live there. He lived in another city.1 This testimony was uncontradicted. There is simply no evidence that Morales lived at the bunkhouse. Consequently the Board erroneously assumed that Molina misstated facts when he said Morales did not live there. The Board noted that Molina claimed he had lived at the place where he committed the offense. It said it had read the transcripts, "looked at everything," and
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In a prior decision (People v. Molina (July 22, 2004, B170538) [nonpub. opn.]), on an earlier habeas case, we stated that Morales was "sitting in his room" when he was killed. That was incorrect. 5

found that all the evidence in his criminal case contradicted his claim. We note that the trial court found that there was no evidence to support the Board's findings. Indeed that is also our finding. In his return, the Warden claimed that a November 1985 probation report contains evidence that Molina had not lived at the bunkhouse. That report reflects that Molina told police at the time of his arrest that he had been living in another city, Fresno. But the Warden's reliance on this report is misplaced because it involves statements by Molina about a different time period. His arrest occurred several months after the shooting. The Board claimed that there is nothing in the probation reports to indicate that Molina had ever claimed that he had been living at the place where the crime took place. But the Board was wrong. The November 1985 probation report reflects that at the time of his arrest, Molina in discussing the crime told police that Morales "had come over to his place . . . ." (Italics added.) The Warden claimed that another document, the December 1985 probation report, contains evidence to support the Board's findings. That report reflects that immediately before the shooting took place, Molina confronted Morales at Molina's house. The report indicates that Molina said he shot Morales after "[Molina] went into his house and took a shower and . . . exited the bathroom" and discovered that Morales was there. (Italics added.) This account is consistent with what Molina told the Board at the parole hearing and directly contradicts the Board's findings. At the preliminary hearing, Zarate testified that before the day of the shooting, Molina had been living in the room where the murder took place. Molina had paid the rent and his clothes and belongings were there on the day of the murder. The Board erroneously assumed Molina misstated facts when he claimed that he had lived at the bunkhouse. Moreover, the facts about who resided at the bunkhouse did not prevent the Board from making the determination about whether his crime was egregious. The Board

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said that regardless of whether Molina barged in on the victim or vice versa, Molina had committed "an egregious crime." But that does not end the inquiry. Molina correctly notes that the Board was so preoccupied with the peripheral facts about who lived at the bunkhouse, that it ignored the critical issue of whether he was currently a threat to public safety. "[W]hen a court reviews a decision of the Board . . . , the relevant inquiry is whether some evidence supports the decision of the Board . . . that the inmate constitutes a current threat to public safety . . . ." (In re Lawrence, supra, 44 Cal.4th at p. 1212.) The Board may certainly consider the "circumstances of the commitment offense." (Id. at p. 1214.) But "the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public . . . ." (Ibid.) The Board's findings on this issue must be supported by evidence, and "not merely by a hunch or intuition." (Id. at p. 1213.) Consequently the critical issue is whether there is evidence in the record of current dangerousness. (Id. at p. 1212.) II. Current Danger to Society Molina contends that there is no evidence that he posed a current danger to society if released on parole. We agree. The Board had no evidence of current dangerousness before it and made no findings on specific facts that show that Molina would pose a risk to the public. Instead, it assumed there was a need for another factual inquiry based on its erroneous assumption that Molina had misstated facts about who lived at the house. A) Medical Evidence and Psychological Evaluations All the medical evidence and psychological evaluations before the Board uniformly concluded that Molina did not pose a current danger to society. In the most recent evaluation, two psychologists, Dr. M. Macomber and Dr. Bill Zika, concluded: 1) Molina had a positive personality, 2) he was "free from any mental" problems, 3) he had no emotional problems, and 4) the "commitment offense

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was entirely out of character for him . . . ." Both of them unequivocally concluded that Molina "poses no risk to society." (Italics added.) The Warden claims that the Board could find that Molina lacked the ability to appreciate and understand the nature of his offense. But, as Molina notes, the Board did not make such a finding. "We must confine our review to the stated factors found by the Board . . . not to findings that the Attorney General now suggests the Board might have made." (In re DeLuna (2005) 126 Cal.App.4th 585, 593-594.) Moreover, even had the Board made such a finding, there must be evidence to support it. Here the Board suggested that Molina may have misstated facts, but that conclusion was based on the Board's erroneous assessment of the facts. The Board did not find evidence that showed that Molina had any mental, emotional, psychological or behavioral deficiency or any character flaw that could cause him not to understand or appreciate the serious nature of his crime. The Warden cites In re Shaputis, supra, 44 Cal.4th 1241. There our Supreme Court concluded that a decision to deny parole may be sustained on the ground that the prisoner lacks insight about his crime. But the court noted that there was medical evidence in the record that supported a finding on this issue. It said, "recent psychological reports" reflected that the prisoner's "character remains unchanged and that he is unable to gain insight into his antisocial behavior despite years of therapy and rehabilitative 'programming.'" (Id. at p. 1260.) In Lawrence, our Supreme Court concluded that the petitioner was suitable for parole notwithstanding the Governor's reliance on psychiatric evaluations which concluded that she was "'sociopathic, unstable and moderately psychopathic.'" (In re Lawrence, supra, 44 Cal.4th at p. 1223.) The court said that there was no evidence of current dangerousness because the more recent evaluations found she had no psychiatric problems. (Id. at pp. 1223-1224.) Here the evidence is entirely favorable to Molina. Dr. Stack found that Molina "indicated his understanding of the seriousness of his actions in taking the life of

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a human being. He expressed great remorse, and demonstrated insight, empathy for the victim and the victim's family, and awareness of his serious level of responsibility." (Italics added.) Molina did not have any mental or emotional conditions or psychiatric disorders that would lead to a risk of recidivism or make him a threat to society. Dr. Stack said, "Molina would indeed pose a very low threat if released to the community . . . . [

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