In re Russo 4/8/11 CA4/1

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State: California

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

Docket No: D057405

Case Date: 07/21/2011

Preview:Filed 4/8/11

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

In re VINCENT RUSSO on Habeas Corpus.

D057405 (Super. Ct. No. HC18275)

Original proceeding on a petition for writ of habeas corpus. Relief denied.

Keith Wattley for Petitioner. Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Assistant Attorney General, Julie A. Malone and Jennifer L. Heinisch, Deputy Attorneys General, for Respondent.

Vincent Russo (petitioner) has been incarcerated since 1985, when he was sentenced to prison for life with the possibility of parole for pleading guilty to one count of kidnapping to commit robbery, one count of attempted murder and enhancements for

inflicting great bodily injury and use of a firearm.1 In July 2009, at his tenth parole hearing, the Board of Parole Hearings (the Board) found petitioner not suitable for parole. Petitioner challenges the Board's decision on the ground it violates his due process rights because the decision is not supported by "some evidence" that petitioner poses a current risk of danger to society. Petitioner also challenges the Board's reliance on a 2008 amendment to Penal Code section 3041.5, subdivision (b)(3), which postponed his next parole hearing for three years. He claims the amended statute violates state and federal Constitutional prohibitions against ex post facto laws. As we explain, we conclude the record before the Board in July 2009 contains "some evidence" petitioner's release poses a current risk to public safety. We also conclude the Board's decision to apply the 2008 amendment to Penal Code section 3041.5, subdivision (b)(3) when scheduling petitioner's next parole hearing three years from the July 2009 hearing did not violate the constitutional prohibitions against ex post facto application of the law. Accordingly, we deny petitioner habeas relief. FACTUAL AND PROCEDURAL BACKGROUND A. The Commitment Offense and Criminal History The facts relied upon by the Board at the July 2009 parole hearing were mainly derived from the August 2007 Life Prisoner Evaluation. We adopt those facts, as supplemented appropriately, for the purpose of our analysis of the record.

1 At the time of the offense, attempted murder was not a life term offense. The trial court stayed the sentence for attempted murder and sentenced only for kidnapping for robbery. 2

On December 22, 1978, the victim, Dale Scott Eaton, was working the night shift at the Stage Stop liquor store in Ramona, California. At approximately 11:00 p.m., petitioner entered the store, put a .45 caliber pistol in Eaton's face and ordered Eaton to the floor. Petitioner took $515 from the register and ordered Eaton to accompany him to petitioner's vehicle. Eaton complied and sat in the front passenger seat. Petitioner drove, while continuing to hold the gun on Eaton. About 35 minutes later, petitioner stopped the car in a rural area and ordered Eaton out of the vehicle. Petitioner told Eaton to move towards the rear of the vehicle and across the road. Petitioner next ordered Eaton to lie down on the ground. Petitioner placed the gun against the back of Eaton's head. According to Eaton, petitioner said "Merry Christmas" and pulled the trigger, twice shooting Eaton at pointblank range in the back of the head, once in the left bicep, once in the right forearm and once in the left cheek. When petitioner saw headlights approaching, he promptly left the crime scene. Eaton rolled himself down an embankment and later crawled back up to the roadway where he was found by a passing motorist, taken to the hospital and miraculously survived. The shooting left Eaton grievously incapacitated. Investigations revealed petitioner and James Baraibar, his roommate, had stolen three guns from the Camp Pendleton Marine Base--including the one used in the shooting of Eaton--where they both were stationed prior to petitioner's commitment of the life crime. Petitioner and Baraibar used the guns and donned ski masks to hide their

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faces when they previously robbed the Stage Shop liquor store on November 25, 1978, and the U.S. liquor store on December 3, 1978. On December 23, 1978, Baraibar was stopped by military police for a traffic violation. Two of the stolen guns were found in the vehicle. When deputies subsequently interviewed petitioner, he told them he had loaned his car to Baraibar. He denied any knowledge of the Stage Stop robbery and shooting of Eaton. Some time later, Baraibar told police about the robberies he and petitioner committed together and how petitioner alone committed the kidnap for robbery of Eaton. In the meantime, petitioner fled California with his common law wife and her daughter. They subsequently moved from place to place, using various aliases to avoid detection and apprehension. They lived in Calgary, Canada, Texas, twice in New York, Florida and finally, in Beaver Falls, Pennsylvania, where petitioner was arrested by the FBI in January 1985, six years after the shooting. Other than an arrest for driving under the influence of alcohol in September 1977, petitioner had no juvenile or adult criminal history except for the life crime and the two uncharged armed robberies that he and Baraibar committed during the crime spree in 1978 when petitioner committed the life crime. B. The 2009 Parole Hearing Despite his positive prison behavior and parole plans, at the conclusion of the July 2009 hearing the Board found petitioner not suitable for parole. The Board denied parole on the ground petitioner "currently poses an unreasonable risk of danger if released from prison." The Board found the commitment offense weighed heavily against petitioner, as 4

petitioner's offense was committed in an "especially heinous, atrocious, and cruel manner because the offense was carried out in a dispassionate and calculated manner. The victim [Eaton] was abused, defiled, or mutilated during or after the offense. The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering, and the motive for the crime is very trivial in relationship to the offense." The Board also found petitioner's "unstable" social history weighed against his suitability for parole. The Board focused specifically on petitioner's drug and alcohol use at the time of the life crime and petitioner's decision to involve both his common law wife, who was then pregnant with petitioner's daughter, and his common law wife's daughter, in his lengthy flight from arrest. Most relevant in this writ proceeding, the Board found petitioner's present attitude toward the life crime also heavily weighed against his suitability for parole. Based on its review of "prior transcripts, decisions, and available documents" and petitioner's testimony at the July 2009 hearing, the Board found petitioner's current "insight into the causative factors associated with his involvement in the crime has not been fully explored by [petitioner]. . . . Hav[ing] a weapon and forcing the victim to lie on the ground and shoot him not once but five times would indicate an intent to harm, if not kill, the victim. The [Board] could not determine why the [petitioner] is reluctant to fully explore the significant factor of the life crime. The [petitioner's] claim that it was not his intent to harm [the] victim, yet shooting him five times, is not plausible. The [Board] perceives the [petitioner] as minimizing his involvement in the crime and clearly notes he requires further--it requires further exploration of insight. As such, the [Board] believes the 5

[petitioner] currently poses an unreasonable risk of danger if released from prison. In addition, the [Board] notes that the [risk assessment] report [prepared by Dr. Montalvo, discussed ante] . . . is not totally supportive of release in that . . . the [petitioner] presents a low to moderate risk for violent recidivism in the free community. Although all three assessment tools suggest a low risk, a somewhat higher risk is supported by [the petitioner's] history of evading arrest for six years, and his continuing minimization of responsibility, a factor which the [Board] found as well." The Board set petitioner's next parole hearing three years from the denial of parole. DISCUSSION I There is "Some Evidence" in the Record Supporting the Board's Conclusion that Petitioner Is Currently Dangerous to the Public A. General Criteria Governing Release on Parole As this court recognized in In re Vasquez (2009) 170 Cal.App.4th 370, "[t]he granting of parole is an essential part of our criminal justice system and is intended to assist those convicted of crime to integrate into society as constructive individuals as soon as possible and alleviate the cost of maintaining them in custodial facilities. [Citations.] Release on parole is said to be the rule, rather than the exception [citation] and the Board is required to set a release date unless it determines that 'the gravity of the current convicted offense . . . is such that consideration of the public safety requires a

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more lengthy period of incarceration . . . .' [Citation.]" (Id. at pp. 379-380, italics omitted.) The decision whether to grant parole is an inherently subjective determination (In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz)) that is guided by a number of factors, some objective, identified in Penal Code section 3041 and the Board's regulations. (Cal. Code Regs., tit. 15,

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