In re Aragon

126 Cal.Rptr.3d 286

11 Cal. Daily Op. Serv. 7158

2011 Daily Journal D.A.R. 8521Review GrantedPreviously published at: 196 Cal.App.4th 483

In re Michael Alan ARAGON, on Habeas Corpus.

No. D058040.

Court of Appeal, Fourth District, Division 1, California.

June 9, 2011.

Review Granted Sept. 14, 2011.

Background: Prisoner filed petition for writ of habeas corpus challenging the decision of the Board of Parole Hearings to deny his parole request. The Superior Court, No. CR139857, Norbert Ehrenfreund, J., denied the petition, and prisoner filed petition in the Court of Appeal.

Holdings: The Court of Appeal, Aaron, J., held that:

(1) evidence supported determination prisoner remained a current threat to public safety in light of his limited therapeutic gains in addressing his substance abuse problem;

(2) preponderance of the evidence standard of proof applied at Board hearing; and

(3) application of “Marsy's Law” to parole hearing schedule was not an ex post facto violation.

Petition denied.

Tracey Renee Lum, for Petitioner.

Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Senior Assistant Attorney General, Phillip Lindsay and Linnea D. Piazza, Deputy Attorneys General, for Respondent.

AARON, J.

I.INTRODUCTION

In January 1993, Michael Alan Aragon fatally stabbed Michael Johnson during a gang fight. Aragon pled guilty to second degree murder, and he is currently serving a sentence of 15 years to life in prison. In October 2009, at Aragon's fourth parole hearing—approximately 15 years after his June 1994 sentencing—a panel of the Board of Parole Hearings (Board) ¹ again found Aragon unsuitable for parole.

Aragon, who is now 35, filed this petition for writ of habeas corpus challenging the Board's decision. Aragon's primary contention is that the Board's decision violates his right to due process because the decision is not supported by “some evidence” that he poses a current threat to public safety. Applying the extremely deferential “some evidence” standard of review, discussed by the Supreme Court in In re Lawrence (2008) 44 Cal.4th 1181, 82 Cal.Rptr.3d 169, 190 P.3d 535( Lawrence ) and In re Shaputis (2008) 44 Cal.4th 1241, 82 Cal.Rptr.3d 213, 190 P.3d 573( Shaputis ), we reject Aragon's contention and conclude that the record contains some evidence that Aragon poses a current threat to public safety. Specifically, we conclude that there is some evidence to support the Board's decision that Aragon remains a current threat to public safety in light of the limited therapeutic gains that he has made in addressing a serious substance abuse problem related to his criminality.

Aragon also claims that the Board should have applied the “clear and convincing” burden of proof in determining whether he was suitable for parole, and that the Board's application of a change in the law extending the time between parole hearings constitutes an ex post facto violation.² We reject these contentions as well, and deny the petition.

II.FACTUAL AND PROCEDURAL BACKGROUND

A. The commitment offense

At Aragon's October 2009 parole suitability hearing, the presiding commissioner read a description of the commitment offense and the ensuing investigation into the record. The following is an excerpt of that description:

“January 22, 1993, there was a confrontation near Mission Bay High School among several members of three different gangs and a group of Mission Bay High School students, including several gang members. There had been other confrontations between the two groups, one just the day before, arising from an ongoing dispute between Dwayne Madison ..., a student from the high school, and Charles Mouzon ... and George Pelayo, members of the smaller group. On the day of the incident, the students were in the gym watching a basketball game when they were informed that there was a group of young men at the west end of the school campus. The students, estimates ranging from 15 to 150, left the gym, crossing a street, and proceeded to where approximately 15 young men, including Michael Aragon were standing. There was an exchange of words and threats. Madison challenged both Mouzon and Pelayo to a fight before there was any physical contact.... In the resulting brawl, one student, Michael Johnson ... was fatally stabbed by Michael Aragon and [an]other student, Sefe Martinez, ... received non-life-threatening stab wounds.... The smaller Hispanic group [that Aragon was with] consisted of members of three different gangs, Magicians Club[,] that's TMC [Aragon's gang], Mission Bay Locos, and Dead End 132. Later that day, Michael Aragon and his co-companion went to a friend's house and [Aragon] started crying and told his girlfriend, ‘I killed somebody.’ A few days later, he again told his girlfriend that he had stabbed the person who had died during the fight and told her, ‘I'm going to get caught sooner or later so if you're going to tell go ahead.’ [Aragon] later told a police officer that he had stabbed Michael Johnson once in the chest with the kitchen knife he'd just recently started carrying for protection. He also admitted stabbing Martinez once in the arm. He also gave police the names of all the members of the smaller group. These numbered approximately 12 and were members of three youth gangs. They were all eventually arrested.”

B. The criminal proceedings

In January 1994, Aragon pled guilty to second degree murder (Pen.Code, § 187, subd. (a)). The court sentenced Aragon to an indeterminate sentence of 15 years to life in prison. This court affirmed Aragon's conviction in July 1995.

C. Aragon's substance abuse history and his participation in substance abuse treatment programs1. Aragon's self-reported substance abuse history

A May 1993 report prepared for the purpose of determining Aragon's fitness to be treated as a juvenile with respect to the commitment offense states the following:

“[Aragon] reported to the undersigned a positive history for both alcohol and drug use. [Aragon] stated that his initial involvement with both drugs and alcohol began approximately four years ago.[ ³] At that time, [Aragon] began experimenting with beer and marijuana. The context of his drug/alcohol use was in party situations, according to [Aragon].

“[Aragon] reported that his drug and alcohol use intensified approximately two years later. At this point in time, [Aragon] reported experimenting with other drugs including cocaine, crystal methamphetamine, PCP and LSD. [Aragon] reported that his use of LSD and PCP was limited to one time and approximately three times respectively. [Aragon] reported more extended use of crystal and cocaine including smoking the former. [Aragon] reported that his use of marijuana, crystal, and cocaine occurred whenever it was available. [Aragon] also denied involvement in the sale of drugs[,] stating his friends were his source of drugs. [Aragon] characterized his drug use as a weekly activity primarily engaged [in] on weekends.

“Regarding alcohol use, [Aragon] reported his drink of choice was either beer or ‘Cisco,’ a type of bottled wine popular among teenagers. [Aragon] estimated that he had been drunk ‘about twenty times.’

“With respect to his drug/alcohol use, [Aragon] denied having a substance abuse problem.”

A February 1994 probation report indicates that Aragon stated that he used marijuana, methamphetamine, and cocaine “at the rate of three times per week, ‘if it was there.’ ”

A 2001 psychological evaluation indicates that Aragon stated that prior to his incarceration, he drank alcohol “often to the point of ‘getting drunk and passing out.’ ” The 2001 report also states, “Aragon reports having smoked marijuana prior to the [commitment offense].”

A 2005 mental health evaluation states, “Aragon describes his past drug use as minimal and experimental, and he claims that he was never addicted to drugs or alcohol.” The report continues, “[Aragon] noted that he drank alcohol to the point of drunkenness two or three times.” The 2005 evaluation also states that Aragon “mentioned several times that he believe[d] that the joint [that he smoked prior to committing the murder] was dipped in some other type of more powerful drug, such as PCP.”

A 2009 forensic evaluation states:

“Earlier reports indicate that the inmate had acknowledged some drug and alcohol use in the past. No new or contradictory information was elicited in this evaluation. Mr. Aragon reported that in the past he drank alcohol and used marijuana about once a month from age fifteen to seventeen and that he tried cocaine, LSD, and PCP one time each.”

2. Aragon's substance abuse treatment record

a. Progress reports

Although Aragon participated in a number of therapeutic programs during his first three years of custody, from 1994 through 1997, it does not appear that he participated in any substance abuse treatment programs. In 1998, Aragon completed a 120–hour program called “Life Plan for Recovery, Substance Abuse Education Program.” From September 1998 through February 1999 he participated in the “ ‘RAPHA’ 12–step Program for Overcoming Dependency and Addictions.” From February 1999 through December 2004, Aragon did not participate in any substance abuse treatment programs. In September 2003, Aragon was transferred to the California Substance Abuse Treatment Facility and State Prison. However, Aragon's progress reports do not indicate that this placement resulted in any additional substance abuse treatment until Aragon attended a Narcotics Anonymous (NA) meeting during the month of December 2004. In July 2007, Aragon completed a program entitled “Making Sense of Addiction.” Beginning in the spring of 2007, Aragon began attending NA and Alcoholics Anonymous (AA) sessions regularly. It appears that Aragon continued this participation until approximately May 2009, the date of the last progress report in the record.⁴

b. Mental health evaluations

A 2001 psychological evaluation states, “Mr. Aragon has attended AA meetings in the past and feels that...