In re Vasquez 4/18/08 CA4/1

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2008 » In re Vasquez 4/18/08 CA4/1

State: California

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

Docket No: D051015

Case Date: 07/30/2008

Preview:Filed 4/18/08 In re Vasquez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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

In re DAVID VASQUEZ on Habeas Corpus.

D051015 (San Diego County Super. Ct. No. CR126443)

Petition for Writ of Habeas Corpus. George W. Clarke, Judge. Relief granted.

David Vasquez challenges Governor Arnold Schwarzenegger's reversal of a decision by the Board of Parole Hearings (the Board) finding him suitable for release on parole. We conclude there was no evidence to support the Governor's ultimate conclusion that Vasquez was unsuitable for parole because he currently posed an unreasonable risk to public safety and therefore grant the requested relief. I. FACTS A. The Offense The facts of Vasquez's offense, as derived from our earlier appellate decision (People v. Vasquez (D016853), filed May 12, 1994 [unpub. opn.]), are as follows:

Maria Roth and the victim, Miguel Alarcon, were involved in a volatile romantic relationship and lived together for nine years. In September 1990, the couple had a fight and Alarcon eventually moved out of Roth's apartment two months later. Meanwhile, Roth started seeing Vasquez and agreed to become his girlfriend. In November 1990, Alarcon became angry after discovering that Roth was Vasquez's girlfriend and told Roth he would "take a bat and beat the fuck out of [Vasquez]." Alarcon later confronted Vasquez and beat him up, causing Vasquez two black eyes and a swollen nose as well as a broken right wrist. Vasquez tried to avoid Alarcon by staying at his brother's house, but his car was broken into, rigged so that it would not start and items (later found in Alarcon's garage) were taken. Vasquez and Roth then moved to his sister's house, which Vasquez believed Alarcon would not be able to find. Roth warned Vasquez that Alarcon was crazy enough to go after him and that he tended to get violent when he was drunk or on drugs. Roth related one incident in which Alarcon had been caught by the police with a rifle when he had been getting ready to hurt someone because of jealousy. The warnings scared Vasquez, who obtained a .22 derringer from a friend, but later returned it. During December 1990, Roth met with Alarcon and had sex with him twice, but by New Year's Eve, she was back with Vasquez. On January 1, 1991, Alarcon stole Roth's car and later agreed to return it after Roth again stated she would not see Vasquez any more. Five days later, Alarcon confronted Roth about her relationship with Vasquez and told her he would see her and Vasquez later that night and shoot them. After Roth told 2

Vasquez what Alarcon had said about shooting them, they drove to a friend's house and borrowed a two-shot derringer. When Alarcon later found the couple, Vasquez had Roth get out of the car to hide and then drove off. Alarcon drove after Vasquez and rear-ended Vasquez's car. Vasquez stopped, got out and started pacing in front of his car. Alarcon also stopped and Vasquez went to the driver's side door of his car. As Alarcon opened the door and started to get out, Vasquez fired his gun. A few seconds after Alarcon got out of the car, Vasquez fired a second shot and the men immediately started fighting. At some point, Alarcon stopped fighting, but Vasquez continued to hit and kick him. Alarcon died from a gunshot wound to his chest and suffered another wound from a bullet that was fired into his side at a downward 40-degree angle. Alarcon's blood and urine had traces of methamphetamine and a 0.20 blood alcohol content at the time of his death. After the shooting, Vasquez left town, but returned a few days later and voluntarily went to the police station, waived his Miranda rights and gave a taperecorded interview. (Miranda v. Arizona (1966) 384 U.S. 436.) During the interview, Vasquez recounted his fight with Alarcon in November and the ensuing harassment. As to the fatal confrontation, Vasquez claimed that Alarcon was holding a gun as Alarcon got out of the car and that he knocked it out of Alarcon's hand. Vasquez then picked up the gun and pointed it at Alarcon as Alarcon advanced towards him. Vasquez told Alarcon to stop, but Alarcon continued to advance. Vasquez said he fired one shot as he backed away but Alarcon was still moving toward him. Vasquez then fired the second 3

shot. Vasquez claimed that Alarcon knocked the gun out of his hand and they fought until Alarcon slumped down. The police did not arrest Vasquez. Four months later, Roth contacted the police after quarreling with Vasquez and told a detective that she learned Vasquez had not shot Alarcon in self-defense, but had murdered him. The police arrested Vasquez in September 1991. B. The Trial and Appeal At trial, Vasquez claimed he was attempting to leave the area to avoid Alarcon when Alarcon rear-ended Roth's car. Vasquez parked the car and got out to look at the damage when Alarcon pulled up behind him. Vasquez claimed that after Alarcon opened the door and put his left foot out, Vasquez took the gun out of his pocket, pointed it at Alarcon through the window and told Alarcon to stay in his car and leave him alone. Alarcon then swung the car door open and the gun "just went off." Vasquez claimed that he reflexively fired a second shot as Alarcon rushed towards him, but that the second shot had no apparent effect on Alarcon. The men fought until Alarcon slumped down. A jury convicted Vasquez of second-degree murder and found that he had personally used a firearm. The probation report noted that the crime may have been committed out of great provocation because Alarcon had continually forced confrontations with Vasquez and that Alarcon's family had forgiven Vasquez and did not believe he should go to prison. The probation officer indicated he had no alternative but to recommend a 15 years to life prison term for the murder, plus an additional three years for the firearm use. The trial court followed this recommendation and we affirmed the judgment on appeal. 4

C.

Vasquez's Performance in Prison Since entering prison in 1992, Vasquez was disciplined four times in 1998 for

violating grooming standards and counseled two times that year for less serious misconduct. Vasquez attended adult literacy classes, worked to obtain his GED and availed himself of an array of self-help and therapy. Vasquez also received vocational training in auto painting, received a certificate in food service and held eleven different institutional jobs. A prison staff member noted that Vasquez was an "exceptional worker" and "would be a productive member of society if given a second chance." Another staff member indicated that Vasquez was "competent and eager to take on new tasks" and demonstrated maturity. Vasquez has maintained contact with his mother and others over the years and made post-release plans to live with this mother and work nearby. D. The Present Proceedings The present parole hearing was conducted in 2006 and the Board concluded that Vasquez was suitable for parole and would not pose an unreasonable risk of danger to society if released from prison. After citing Vasquez's positive prison behavior, the Board noted that Vasquez had committed the offense as a result of "significant stress" in his life after suffering from the victim's harassment, intimidation and assault. The Board believed that Vasquez was more mature now that he was 43-years old and that his prison misconduct related to a ponytail he wore as a Native American and that such behavior was no longer considered a disciplinary matter.

5

On August 3, 2006, the Governor reversed the Board's parole grant because he believed that Vasquez posed an unreasonable risk of danger to society and that the gravity of the murder outweighed any positive factors supporting parole suitability. The Governor concluded that the murder involved some level of premeditation, that Vasquez demonstrated exceptionally callous disregard for human suffering when he continued to hit and kick Alarcon after Alarcon stopped fighting and that any stress he was under, given the nature and circumstances of the murder, did not tip the scales in favor of parole suitability. Vasquez petitioned the San Diego County Superior Court for a writ of habeas corpus, alleging that the Governor's decision was arbitrary and capricious. The court denied the writ, concluding the Governor's decision was supported by some evidence. Vasquez filed a writ petition in this court and we issued an order to show cause why the relief requested should not be granted. II. DISCUSSION A. The Statutory Framework and Judicial Review The purpose of parole is to "help individuals reintegrate into society as constructive individuals as soon as they are able, without being confined for the full term of the sentence imposed." (Morrissey v. Brewer (1972) 408 U.S. 471, 477.) Although parolees are no longer in physical custody, they remain under the legal custody of the Department of Corrections and Rehabilitation and can be returned to prison at any time. (Pen. Code,

Download In re Vasquez 4/18/08 CA4/1.pdf