In re Viray 4/15/08 CA4/1

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State: California

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

Docket No: D050934

Case Date: 07/23/2008

Preview:Filed 4/15/08

CERTIFIED FOR PUBLICATION COURT OF APPEAL - FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

In re NICOMEDES VIRAY on Habeas Corpus.

D050934 (San Diego County Super. Ct. No. CR58017)

Petition for Writ of Habeas Corpus. Larrie R. Brainard, Judge. Relief granted.

Rich Pfeiffer, under appointment by the Court of Appeal for Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L Garland, Senior Assistant Attorney General, Heather Bushman and Linnea D. Piazza, Deputy Attorneys General for Respondent. Nicomedes Viray 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 Viray 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, Trial and Appeal The facts of Viray's offense, as derived from the Governor's reversal of the Board's decision, are as follows: On the night of February 14, 1982, 27-year-old Viray went to a nightclub with several of his friends carrying a large knife in his waistband. While on the dance floor, Victor Gonzales Cacha bumped into Viray several times and kicked him. Viray felt intimidated, drew his knife and stabbed Cacha once or twice in the chest. Viray continued to stab Cacha after the men fell to the floor. Someone took the knife away from Viray, but one of Viray's friends grabbed the knife and fled the nightclub with Viray. Cacha suffered stab wounds to each arm, left thigh, heart and lung and died from his injuries. Police arrested Viray the following day and discovered that he had no prior criminal record. A jury convicted Viray of second-degree murder with the use of a knife and the trial court later sentenced him to 15 years to life in prison for the murder, plus one year for the knife enhancement. We affirmed the judgment on appeal. B. Viray's Performance in Prison During his approximately 24 years in prison, Viray was disciplined once in 1983 for possessing marijuana and counseled four times for minor misconduct. Viray received his GED in 1985 and has taken biblical and learning improvement courses. He completed vocational training in air conditioning and refrigeration, sheet metal and data processing and held institutional jobs as a janitor, tool room attendant, wood machinist, 2

porter and sole layer. Viray has taken part in extracurricular activities and participated in therapy and self-help activities, including, Alcoholics Anonymous, Anger Management, Communication Skills Training, Anger Control Group, The Way to Happiness, Reality and Decision-Making, and Self-Esteem and Assertiveness. He also received favorable reports from various correctional and mental-health professionals over the years and has maintained supportive relationships with family and others. If released from prison, Viray is subject to deportation to the Philippines where he has family with whom he can live and employment offers. If not deported, Viray plans to live with is sister and brother-in-law in San Diego County. C. The Present Proceedings The present parole hearing was conducted in 2006. The Board noted that Viray had been drinking too much and had been provoked by the victim. It concluded that Viray was suitable for parole and would not pose an unreasonable risk to society if released from prison. The Governor reversed the Board's parole grant, noting that the offense "was especially aggravated because of the extremely violent nature of the attack, which involved multiple stab wounds, and because the motive was materially less significant than those which conventionally drive people to commit such a murder." The Governor also concluded that Viray's behavior of leaving the nightclub after the assault and going to other nightclubs "exhibit[ed] a callous disregard" for Cacha's suffering. He noted that the San Diego County District Attorney's Office opposed Viray's release based, in part, on the gravity of the offense and found that the gravity of the murder was alone

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sufficient to conclude that releasing Viray from prison would pose an unreasonable public safety risk. Viray petitioned the San Diego County Superior Court for a writ of habeas corpus alleging that the Governor's finding that the gravity of the murder alone was sufficient to conclude that his release would cause an unreasonable risk to society was not supported by some evidence and contrary to the rehabilitative goals espoused by the prison system. The court denied the writ, concluding that the Governor's decision was supported by some evidence. Viray 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,

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