In re Cecena

1

In re JESUS SALVADORE CECENA on Habeas Corpus.

D080490

California Court of Appeals, Fourth District, First Division

November 21, 2022

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of San Diego County, No HC18558 David M. Gill, Judge.

Rob Bonta, Attorney General, Phillip J. Lindsay, Assistant Attorney General, Amanda J. Murray and Rachael A. Campbell Deputy Attorneys General, for Appellant.

Tracy Renee Lum for Respondent.

IRION J.

When Jesus Salvadore Cecena was 17 years old, he shot and killed a police officer and was later sentenced to prison for life. After Cecena had spent more than 40 years in prison, the Board of Parole Hearings (the Board) granted him parole. Governor Gavin Newsom reversed the Board's decision. On Cecena's petition for a writ of habeas corpus, the superior court vacated the Governor's decision on the grounds the Governor had not given "great weight" to Cecena's youth-related factors at the time of the murder, "some evidence" did not support the determination that Cecena's lack of understanding of the causative factors of the murder made him currently dangerous, and the decision unlawfully converted Cecena's prison term into life without the possibility of parole. We affirm on the second ground.

I. BACKGROUND

A. Commitment Offense

On the night of November 3, 1978, when Cecena was 17 years old, he drove with Jose Arteaga to a carnival and met Fernando Torres. The three left the carnival, stopped by Torres's house to pick up Arteaga's gun, and then went to a park where they drank beer, smoked marijuana laced with phencyclidine, and showed some girls the gun. After leaving the park and dropping off Torres, Cecena and Arteaga continued driving. At approximately 1:00 a.m. on November 4, police officer Archie Buggs stopped them for speeding. As Buggs walked toward the rear of the car, Cecena got out and fired six shots, which hit Buggs in the chest and head and killed him. Cecena got back in the car and sped off.

A jury found Cecena guilty of first degree murder. He was sentenced to prison for life on September 6, 1979.

B. Parole Suitability Hearing

1. Questioning by Board

Cecena appeared before the Board for a parole suitability hearing on June 24, 2020. He told the Board that when he was 13 years old, his father left the family; he felt rejected; and to satisfy his need for acceptance, he began associating with gang members, dressing and talking like them, drinking, smoking marijuana, and fighting. This made Cecena feel "protected," "wanted," and "loved," and he "was willing to do whatever it took to gain their acceptance" and "to do whatever they would ask [him] to do."

Cecena testified that all his juvenile criminal activity before the murder (e.g., joyriding, curfew violations, malicious mischief, possession of a knife, shoplifting, fighting) "was related to the gangs."

When the Board asked Cecena about the murder of Buggs, Cecena said that Arteaga and Torres, his companions on the night of the murder, were also gang members. Arteaga asked Cecena to pay Torres money that Arteaga owed so that he could get his gun back, and Cecena did so. Arteaga pointed the gun at people and "act[ed] like he want[ed] to shoot somebody." When Buggs stopped Cecena for speeding, Cecena feared his father, with whom Cecena was then living, would be disappointed if he found out and would again reject him. Arteaga put the gun in Cecena's lap, a gesture Cecena could "only assume" at the parole hearing meant that Arteaga was "giving [him] the green light to do what [he] need[ed] to do." At the time, however, Cecena thought his "answer" was to kill Buggs so that his father would "never learn that [he] was out partying with the homeboys, getting high having smoked a PCP, and possession of a weapon." "As soon as [Arteaga] put the gun in [Cecena's] lap, [Cecena] made a decision right then and there that [he was] going to murder this officer."

When the Board asked Cecena about his mindset at the time of the murder, he said he was "self-centered," he "had no empathy," his "loyalties were to the gang," he had a "criminal mentality [to] do whatever it takes to get away," and his "mindset at that time was that of a gang member." Cecena had incorporated gang beliefs that "it's okay to hurt anybody" and that "life do[es]n't matter" in order "to dehumanize people." Cecena said he intended "to execute" Buggs because he did not want to face his father, and his "motive" was "[t]o escape capture, to escape responsibility." Cecena denied he specifically intended to murder a police officer.

The Board turned to Cecena's behavior in prison and noted he had no disciplinary violations since 1987. Cecena admitted he associated with a prison gang when he first went to prison, but after reconciling with his father in 1987 he dropped out of the gang and was debriefed in 1990. The Board also noted Cecena's extensive participation in prison rehabilitative programming, which included obtaining the equivalent of a high school diploma and completing some college courses; training in several vocations; and acting as a facilitator or mentor for Criminals and Gangmembers Anonymous, Alcoholics Anonymous, Victim Offender Education Group, and Youth Offender Program. Cecena told the Board that he explains to youth offenders "there's nothing glorious about spending 41 years of your life in prison to represent a gang who doesn't care about you." The Board discussed with Cecena his plans to live with his wife, gain employment, and utilize community support if he were granted parole.

2. Questioning and Arguments by Counsel

A deputy district attorney and counsel for Cecena then questioned Cecena and gave closing arguments. In response to questions from the deputy district attorney, Cecena admitted the murder was "gang-related," in that he was a "ruthless, careless, [and] apathetic gang member" when he killed Buggs. But Cecena denied the crime was "gang-motivated," in that he had no specific intent to go out that night to murder a police officer. He admitted writing a poem bragging about the murder.

In closing argument, the deputy district attorney urged the Board to deny parole. He contended Cecena was unsuitable for parole because he had not explored "[t]he true motivation for committing this crime" and had "given a minimization or an excuse for the crime." The deputy district attorney stated he had consulted "DA investigators who are experts in gang affiliation and gang motivation," and they reported:

"[T]he handing of the gun from Art[e]aga to Cecena was an initiation of [rites] by the older homie. And then, he got out of the car and an initiation of [rites] proved he was a rider down with that gang and he was willing to execute the officer and make good on a threat that the highway patrol turned over to the San Diego PD. That threat was issued weeks or months before the shooting to kill a police officer, murder a cop. And he was the man from the 70's Gang that did it. And he proved that - his worth. And he admitted [that] in the last hearing. He got a lot of attaboys for that, that he was strutting around the yard like a hundred dollar chicken for what he did. That it's a big deal to murder a cop. And if he gets out, he's going to be looked at as the Grand Poobah and the Godfather of sorts. The homie that killed the cop and got away with it. And all of those things were spelled out in these reports very, very carefully. That explains the gang motivation for this crime. And on that basis, I would submit that there's even further evidence to show [Cecena's parole unsuitability]."

Cecena's counsel urged the Board to grant parole. She argued Cecena's age at the time of the murder (17 years) and at the time of the hearing (59 years); extraordinary rehabilitative efforts in prison; abandonment of gang ties, substance abuse, and violent conduct in 1987; and acceptance of full responsibility and expression of remorse for the murder, all made him suitable for parole.

3. Board's Decision to Grant Parole

After taking a recess and considering Cecena's testimony at the hearing, his central prison file, the comprehensive risk assessment prepared by a forensic psychologist, responses from the public, and the arguments of the deputy district attorney and Cecena's counsel, the Board found Cecena suitable for parole. The Board identified Cecena's extensive criminal history, gang involvement, and the "vicious and heinous" nature of the murder as factors indicating unsuitability for parole. The Board "acknowledge[d] that there [was] some concern about [Cecena's] motivations in the crime" and did not "want to undervalue that or minimize those concerns," but "at no time during [its] discussion with [Cecena] did [it] detect that [he] had problems with accepting that full responsibility for [his] actions of killing [Buggs]." The Board found the unsuitability factors were outweighed by others tending to show suitability, including Cecena's diminished culpability as a youth at the time of the murder and his later growth and maturity. The Board found Cecena took responsibility for the murder, showed genuine remorse, had no disciplinary problems in 33 years, participated extensively in rehabilitative programming, and had realistic plans for release on parole. The Board noted that Cecena's age at the time of the hearing (59 years) reduced the risk of recidivism and that the forensic psychologist who wrote the comprehensive risk assessment rated that risk as low. Based on its findings, the Board determined Cecena would not pose an unreasonable risk of danger to the public if released from prison and granted parole.

C. Governor's Reversal

Exercising the authority to review the Board's decision to grant Cecena parole (Cal. Const.,...