In re Maela

In re OSCAR MAELA on Habeas Corpus.

D059853

Super. Ct. No. HC20047

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

Dated: December 20, 2011

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Original proceeding on a petition for writ of habeas corpus. Petition denied.

In 1988, a jury convicted Oscar Maela of second degree murder (Pen. Code,¹§ 187) and also found he personally used a firearm to commit the offense (§ 12022.5). The court sentenced him to prison for a total of 17 years to life. Maela, at age 22, begin serving his indeterminate term in 1988 and first became eligible for parole on September 10, 2002. After multiple unsuccessful parole hearings, the Board of Parole Hearings (the Board) again found him unsuitable for a release date at his July 7, 2009 suitability hearing and denied him parole, setting a new suitability hearing in three years.

After the trial court denied a request for habeas relief, Maela filed the present petition for writ of habeas corpus. Maela asserts the Board's conclusion is not supportedby some evidence that, if paroled, he would be a current danger to the public. He also contends the application of Marsy's Law² to increase his time between parole suitability hearings violates the federal Constitution's ex post facto provision. Because we conclude the Board's decision is supported by some evidence and the application of Marsy's Law to Maela does not violate ex post facto principles, we deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

The Commitment Offense

Maela's conviction for second degree murder was upheld on appeal. (See People v. Maela (Feb. 7, 1990, D008295) [nonpub. opn.].) We repeat the facts contained in this court's opinion.

On the night of December 27, 1987, Javier Torres died from a bullet to his back. The night of his death, Torres and Martin Vasquez went to an apartment complex in south San Diego to purchase PCP.

Maela, John Adame, and four female acquaintances came to the apartment complex that night to purchase marijuana laced with PCP. Maela waited outside while Adame went to an apartment with one of the girls to purchase the drugs. When leaving, Adame became involved in a fight with Vasquez, who was entering the complex. This initial fight ended, and Adame proceeded out of the complex to the street. Once in the street, Vasquez and Adame again fought. During this second fight, several more menjoined in. Sometime during this second fight, Maela retrieved a gun from his car, returned to the scene of the altercation and fired several shots. At trial, contradictory testimony was given as to who initiated the altercation, how many men were involved in the second fight, and when the shots were fired.

Adame testified Vasquez initiated the fights. Adame stated he was beaten by five to six men and feared for his life. He also stated he was losing consciousness and did not hear or see Maela shoot the pistol.

Three of the women who had accompanied Adame and Maela to the scene testified there were three or four men beating Adame, and they feared for his safety. One of the women stated the men attacking Adame began running from the altercation before any shots were fired. Another of the women testified the men did not begin to run away until Maela fired one shot into the air. However, this testimony was impeached by earlier statements the witness made to the police that the men began running before any shots were fired.

Vasquez testified Adame started the fight. He further testified another man began helping Adame. Vasquez stated he then called for help from Torres and began to run when they learned Maela had a gun and before any shots were fired.

Contradictory testimony was given concerning when the first shots were fired. However, it was generally agreed several shots were fired after the attackers began running from the scene. There was no testimony Maela shot Torres while Torres was beating Adame.

Maela's Preconviction History

Maela grew up in Chula Vista. His father died when he was one year old, and his mother remarried. Maela did not get along with his stepfather.

Maela did not complete the ninth grade. He joined a gang at age 12 and began drinking alcohol and using drugs at that time. He admits to having used LSD and smoking marijuana laced with PCP.

Maela's Criminal History and Postconviction Conduct

As a juvenile, Maela committed multiple offenses, which consisted of burglary, battery, vandalism, shooting into a residence, and theft of firearms. In regard to shooting into a residence, Maela admitted he fired a shot through the window of a residence on July 7, 1981, when he was only 16 years old. He had been at a party drinking beer and bought a "four way hit" of LSD. He first fired a shotgun in the air. When an unidentified man questioned this act, he fired a shot through his window "just to scare him."

After the firearms offense, Maela was committed to the California Youth Authority (CYA) from July 23, 1981 until January 3, 1983. He was discharged from CYA on November 13, 1986. As an adult, Maela also was arrested for disorderly conduct and loitering.

Prior to committing his life offense, Maela had been living with his wife, a daughter (age two), and a son (age four). He experienced some domestic problems with his wife and was charged with assault. The charges were eventually dropped.

Maela's initial postconviction behavior was far from exemplary. While he was awaiting sentencing for his conviction of second degree murder, Maela attempted toescape while confined in the San Diego County Jail, South Bay Detention Center, but was apprehended.³ Unfortunately, this incident was merely the beginning of a string of problems for Maela.

Beginning September 16, 1989 and continuing until August 20, 1996, Maela was the subject of 13 rules violation reports, with his conduct including refusing to work, possession of weapons, fighting, stabbing an inmate, and participating in a race riot. Maela, however, did not receive any rule violation report for substance abuse.

Maela has been discipline free since August 1996. In addition, Maela "debriefed" from the Mexican Mafia gang in 2000. He earned his GED and enrolled in classes at Coastline Community College. Maela obtained his certification in masonry and plumbing. He also received proficiency certificates in textiles and as a chemical handler working at the detergent plant. Maela worked in optical, as a clerk for education, as a cook, porter, building clerk, bilingual clerk, and on yard crew. He received positive reports for all jobs and classes he attended.

Maela attended Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) classes and received certificates of two-year completion for both programs in 2005. In January 2009, Maela volunteered for the Amity program and was hired as a peer mentor in March 2009. Amity is a substance abuse program that allowed Maela to be both a participant and a mentor.

Maela received 20 laudatory chronos from correctional counselors and other prison personnel attesting to Maela's good work with Amity; his volunteering to paint, clean, and maintain facilities as well as designing, fabricating, and instructing three therapeutic modules; and his attendance in the creative conflict resolution workshop.

In his 2008 psychological evaluation, the psychologist noted Maela "shows remorse, and appears to take responsibility for his offense, without rationalizing." The psychologist determined Maela does not have current anti-social personality traits or any mental illness that would make him a risk to society. In addition, the psychologist stated, both clinical and objective measures of risk rate Maela as low for psychopathy, future violence, and reoffending.

The psychologist also indicated Maela demonstrates awareness of the contributing role drugs and alcohol played in his life offense and noted Maela has attended AA and NA groups while abstaining from using all substances while incarcerated. In conclusion, the psychologist commented that Maela's "maturity and positive behavior appear to reflect an internalized set of prosocial values" and "[h]is behavior now appears stable and habituated."

The 2008 Suitability Hearing

At the August 6, 2008 suitability hearing, although the Board commended Maela on his progress, it denied him parole. The Board based its decision on the circumstances of the commitment crime, Maela's history of violence and criminal activity, and his unstable social history. The Board also found Maela's self-help programming efforts were "weak somewhat."

The Board set a new hearing for a year later and recommended that Maela avoid any further disciplinary problems, continue programming, select a primary parole plan, prepare some book reports regarding self-help issues, and form a relapse prevention plan.

The Present Proceeding

Suitability Hearing

At Maela's July 7, 2009 suitability hearing, the Board reviewed and considered Maela's central file, prior transcripts, the 2008 psychological evaluation,⁴ and additional documents regarding programming and parole plans provided by Maela's attorney. The Board stated both the District Attorney's Office and the San Diego Police Department sent letters urging the Board to deny Maela parole.

Maela agreed to discuss all matters with the Board. He admitted that he began using drugs and alcohol at age 12 and had been in a gang "as long as [he] can remember." The Board noted Maela had seven siblings and asked Maela why they never got involved in gangs although Maela did. Maela responded, "I think I'm a little embarrassed by my reply, but I think maybe I was a little more needy [sic] than they were emotionally." Maela further elaborated that h...