In re Duran, D050851 (Cal. App. 5/8/2008)

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In re ANDREW DURAN on Habeas Corpus.

D050851

Court of Appeal of California, Fourth Appellate District, Division One

May 8, 2008

NOT TO BE PUBLISHED

Appeal from the San Diego County, Super. Ct. No. CR54908.

Petition for writ of habeas corpus following Governor's reversal of a grant of parole. Petition denied.

HUFFMAN, Acting P. J.

Petitioner Andrew Duran was sentenced in 1982 to 15 years to life after pleading guilty to one count of second degree murder. Duran has remained in prison for the past 26 years. Duran first became eligible for parole many years ago, but the Board of Prison Terms (BPT) did not find him suitable for parole until his 2006 suitability hearing, at which the BPT concluded Duran was suitable for parole because he did not pose an unreasonable risk of danger to society if released. However, Governor Arnold Schwarzenegger reversed the BPT's decision, finding Duran posed an unreasonable risk of danger to society if released. Duran filed a petition for writ of habeas corpus in the trial court that was denied. Duran now petitions this court for a writ of habeas corpus, raising numerous challenges to Governor Schwarzenegger's decision. We find there is some evidence in this record to support the assessment of risk should Duran be paroled.

I FACTS

A. The Commitment Offense

In 1981 Duran was a member of the Spring Valley Locos gang.¹ On February 27, 1981, Duran and several other fellow gang members, including Messrs. Rodriguez and Garcia, were seeking revenge against a rival gang (the Shelltown gang) for the killing of a "homeboy" several months earlier. The group placed a semiautomatic rifle in the trunk of a car and went to a house party populated by Shelltown members. On arriving at the party, Duran walked to the house, entered the garage, and began fighting with Shelltown members, who jumped him and broke a bottle over his head. Duran broke free and yelled insults as he walked away. Several Shelltown members began pursuing Duran toward his car, and Rodriguez grabbed the rifle from the trunk, gave it to Duran, and told him to "spray" them. Duran opened fire on the group, killing 17-year-old Juan Alvarez. Several shots hit the garage door, and one went through the window of the house. When questioned by police two weeks later, Duran claimed he acted in self-defense when he shot at the Shelltown members, but neither members of Duran's group nor their car was shot. Duran was later charged with the murder of Alvarez.

On April 4, 1981, three Shelltown members encountered Duran and Garcia at a taco shop and attacked and stabbed Duran in retaliation for Alvarez's death. After the Shelltown members left, Duran and Garcia deemed the wound superficial and decided not to go to the hospital. Instead, they met with Rodriguez and other Spring Valley Locos members to discuss getting even with Shelltown. Duran stated he wanted to "get them." The group borrowed the car owned by Garcia's girlfriend (because their own cars were too well known), drove to a house to pick up the semiautomatic rifle, and went to a park in a residential area where they knew the Shelltown gang was having a party.

After parking, Rodriguez took the rifle from the trunk and sat in the front passenger seat. Garcia was driving and Duran was in the back seat with two others. The group circled the party several times before they noticed two males leaving. Rodriguez said "they're coming out . . . . This time we'll get them." As they passed the two males, Duran yelled, "You stabbed me . . . Valley Locos" and Rodriguez opened fire on the two men, firing roughly 12 shots. Eighteen-year-old Eliodoro Rodriguez-Pineda was struck several times and died of the wounds. Duran later told police the victim had nothing to do with the earlier stabbing attack. Duran was also charged with murder in connection with Rodriguez-Pineda's death.

Duran was 16 years old in 1981 at the time of the murders. However, he was found unfit for treatment as a juvenile and was prosecuted as an adult on two counts of murder. He pleaded guilty to one count of second degree murder in connection with the death of Rodriguez-Pineda in exchange for a dismissal of the charges arising out of Alvarez's death. Duran was sentenced to 15 years to life.

B. Duran's Performance in Prison

Duran's early years in prison were marked by disciplinary problems. Between 1982 and 1986 he received 12 "115's,"² the most serious of which involved a 1985 attack on a fellow inmate: Duran choked the victim while another inmate stabbed the victim. However, he has remained free of serious disciplinary issues since 1986, and has a good record since 1993.

Duran's conduct in prison from 1986 to the present has been commendable. In addition to his good discipline record, he disassociated himself from gang involvement, furthered his vocational training through numerous programs, became involved in the Alcoholics Anonymous program and has ascended to its chairmanship, and consistently received laudatory reviews from prison staff.

II HISTORY OF PROCEEDINGS

A. The Prior BPT Proceedings

Duran's minimum eligible parole date was in 1990. Although Duran had numerous hearings before the BPT over the next 15 years, the BPT found him unsuitable for parole at each of the prior hearings.

However, at his 2006 parole hearing, the BPT concluded Duran was suitable for parole. The Life Prisoner Evaluation Report (LPER), prepared in 2004 by a prison counselor for consideration by the BPT, stated Duran's crimes appeared to be connected to alcohol use and involvement with gangs. The evaluator concluded that if Duran stayed free of those influences,³ "his risk to the community is considered lower than average for men of his age. His long history of involvement in AA, current chairmanship of AA, and dislike of gang activity bode well for his eventual success. Although previous [LPER's] presented concerns about his unpredictability, the last three psychological reports have been favorable, and this writer concurs." A second counselor, in a 2006 addendum to the 2004 evaluation, agreed that Duran's prior substance abuse and gang activity presented risk factors. However, the evaluator (echoing the 2004 evaluator's comments) observed that "you could divide his life in two, from prior to 1986 and after 1986," and that Duran's early disciplinary problems in prison involved a continuation of his substance abuse and gang involvement but that "post 1986 it appears that [Duran] learn[ed] from his previous mistakes. Not only is he doing the right thing, but he genuinely appears to appreciate why he should do the right thing . . . . [¶] . . . [Duran] appears to show insight and remorse into the nature of his behavior which is also demonstrated by his ability to turn around and be [discipline] free since 1986. [Duran] has matured a great deal since he was a youth and appears to recognize the futility and negativity of his prior behavior." The evaluator concluded that it was "likely [Duran] will retain the gains made during incarceration if released to the community."

The BPT considered Duran's testimony at the hearing, as well as the written reports, and concluded Duran was suitable for parole. The BPT relied on his parole plans and marketable skills, his demonstrated commitment to sobriety and to avoiding gang involvement, his remorse and insight into his behavior as a juvenile, and his maturation and conduct over the previous 20 years to find he did not pose an unreasonable risk of danger to society if released on parole.

In December 2006 Governor Schwarzenegger reversed the BPT's decision because he found Duran did pose an unreasonable risk of danger to society if released. The principal reasons given for this finding were (1) the crime was especially aggravated because it involved some premeditation, had a trivial motive, placed bystanders at risk, and followed shortly after another killing by Duran, and (2) Duran's disciplinary record in prison demonstrated an inability or unwillingness to conform his behavior to the rules of society. Governor Schwarzenegger found the "negative factors weighing against [Duran's parole] presently outweigh the positive ones [and] I believe [Duran's] release would pose an unreasonable risk of danger to society at this time."

The Governor stated in part:

"Despite the positive factors I considered, the second-degree murder for which Mr. Duran was convicted was especially grave considering the trivial gang-related nature of this drive-by shooting. Additionally, there is evidence that the murder involved some level of premeditation. According to the probation report, Mr. Duran `wanted to get even' for a prior gang attack. He enlisted the help of other gang members, and decided to drive a car that would not be immediately recognized. As they were driving to the park where the Shelltown gang was partying, they stopped at a house and Mr. Duran and another gang member retrieved the same gun Mr. Duran used to shoot Mr. Alvarez approximately one month earlier. Mr. Duran told the probation officer that they also got steak knives and planned `to stab a couple of the" Shelltown" boys.' Even though Mr. Duran suggested that they `sneak up and stab a couple of people,' they instead used the gun to shoot Mr. Rodriguez-Pineda as he left the party. Just before the shooting, Mr. Duran yelled, `Valley Locos.'

"Furthermore, Mr. Duran's actions put other people at risk of death or serious injury. According to the probation officer, the shooting `took place in a residential neighborhood' and Mr. Duran `jeopardized the welfare of other innocent people who lived in the neighborhood of the shooting.' The gravity of the second-degree murder committed by Mr. Duran is alone sufficient for me to conclude presently that his release from prison would pose an unreasonable public-safety risk. The fact that Mr. Duran killed another man approximately one month earlier in a separate gang-related shooting makes his actions...