In re Varelas

In re ESTEBAN VARELAS, on Habeas Corpus.

B233050

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Filed: February 16, 2012

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA102365)

PETITION for writ of habeas corpus. Michael J. Farrell, Judge. Petition denied.

Michael Satris, under appointment by the Court of Appeal, for Petitioner.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Phillip Lindsay, Gregory J. Marcot and Charles Chung, Deputy Attorneys General, for Respondent.

In 1995, petitioner Esteban Varelas was convicted by a jury of second degree murder with a personal use of a firearm enhancement. He was sentenced to a term of 15 years to life in prison, plus a determinate term of 4 years. In May 2010, a panel of the Board of Parole Hearings (Board) conducted Varelas's initial parole suitability hearing, found him unsuitable, and deferred his next parole hearing for seven years pursuant to Proposition 9, the "Victim's Bill of Rights Act of 2008: Marsy's Law (hereinafter "Marsy's Law"), Penal Code section 3041.5, subdivision (b)(3).¹ Varelas challenged the Board's decision in a petition for a writ of habeas corpus filed in the superior court, which was denied. He then petitioned this court for relief, urging that various procedural flaws in the hearing violated his due process rights, the Board's decision was not supported by "some evidence" he poses a current threat to public safety, and application of Marsy's Law to his case violates ex post facto principles. We issued an order to show cause and requested the appointment of counsel for petitioner. We now conclude the conduct of the hearing comported with due process; some evidence supported the Board's unsuitability finding; and application of amended section 3041.5 did not offend ex post facto principles.

FACTUAL AND PROCEDURAL BACKGROUND

1. May 2010 parole suitability hearing.

In May 2010, the Board conducted Varelas's initial parole hearing, at which the following information was considered.

a. Commitment offense, conviction, and incarceration.

A probation report prepared in 1995 described the commitment offense as follows. On October 2, 1994, Varelas, victim Roberto Palomo, and others were drinking beer outside Varelas's residence. Varelas went inside. Palomo began arguing with another man, Dominguez Ballardes. Varelas became annoyed about the argument and came back outside. He and Palomo fought, and Palomo punched Varelas in the eye, knocking himto the ground. Varelas pulled a .22-caliber pistol from his person and shot at Palomo, hitting him in the torso. Varelas left shortly thereafter. The victim was initially expected to survive his wound, but died early the next morning. Police officers learned Varelas had fled to his sister-in-law's residence in Cambria, where they found him hiding in a closet the day after the murder. Varelas was 28 years old at the time of the crime.

A jury convicted Varelas of second degree murder and found he had personally used a firearm in commission of the offense. (§§ 187, subd. (a), 12022.5.) The trial court sentenced him to 15 years to life in prison for the murder, plus a determinate term of 4 years for the firearm enhancement. Varelas was received by the California Department of Corrections (CDC) on July 17, 1995. His minimum parole eligibility date was June 13, 2011. At the time of the 2010 parole hearing, his first, he had been in prison for almost 15 years, and was 43 years old.

b. Social history.

Varelas was born in Mexico in 1966, the youngest of 10 children.² The family was poor, and Varelas worked on his parents' small ranch from a very young age, picking produce and tending cattle. He attended school for only a few months in his youth. His family was "close and loving" and, at the time of the hearing, his parents remained married. Varelas married when he was 17 or 18 years old. In 1987, he entered the United States illegally to find better paying work. He worked in agriculture in the San Luis Obispo area for several years, returning to Mexico every few months to work with his father. Eventually Varelas moved to Los Angeles. His wife came to the United States at an unspecified time after Varelas's arrival. The couple have three children together and remain married. At the time of the murder, Varelas was employed as a painter and was making $800 per month. Other than the commitment offense, Varelashas no criminal history either in the United States or in Mexico. He is subject to an active immigration hold.

c. Institutional record.

(i) Disciplinary history.

While incarcerated, Varelas has incurred three "CDC 115s"³ and two "CDC 128-A's."⁴ The three serious rules violations were for his involvement in fights, which CDC officials suspected were related to prison gang activity. The first serious rules violation occurred on August 19, 1997, after a fight involving Varelas broke out during a soccer game. The violation was originally charged as "Mutual Combat" but was reduced to "Behavior Which Could Lead to Violence." A correctional officer reported observing a fight; three other witnesses stated that no fight had actually occurred. Varelas explained at the hearing that a group of inmates had been playing soccer and an officer in the control tower mistakenly thought they were fighting.

The second serious rules violation occurred on September 29, 2002. Correctional officers observed Varelas and another man chasing a third inmate. When the victim inmate turned around, Varelas and his cohort punched him. Varelas was charged with battery on an inmate without serious injury; the violation was subsequently reduced to the lesser charge of attempted battery without serious injury. Varelas explained at the hearing that other inmates had asked him to "go and beat up another inmate," and threatened to beat him up if he refused. When asked why he had been associating withthe men in the first place, Varelas explained that he thought they "were people from [his] hometown." He denied that the other inmates were gang members. He explained, "before . . . I didn't know how to handle myself . . . with different groups in prison. Now I do." "I try to do my program. I have to say hi to the other ones."

The third serious rules violation occurred on December 29, 2003, for participation in a race riot. In that incident, Varelas and a peer were observed striking another inmate with their fists. Several other inmates were also involved in the melee. Varelas pleaded guilty to the violation. He claimed he had been unaware of what was happening. At the hearing he explained, "I went to say hi to another inmate. And then a riot started."

Varelas stated at the hearing, "I take responsibility for those fights. I didn't know how the life in prison was and that's [why] I got three 115s." He denied that any of the three incidents were gang-related and denied being a gang member. Nothing in the record suggests he was involved with gangs prior to his incarceration.

(ii) Institutional programming and education.

Varelas speaks no English, but can converse and express himself well in Spanish. According to a "Comprehensive Risk Assessment" prepared by a licensed psychologist in December 2009 (hereinafter "CRA"), Varelas had "attempted to upgrade educationally by attending Adult Basic Education courses but ha[d] made little progress despite his efforts" and being enrolled for approximately 10 years. Varelas reads, writes, and spells poorly in both Spanish and English.⁵ He informed the psychologist that no matter "how hard he tries, he is unable to understand English"; he is also unable to speak "even simple words in English." The psychologist opined that Varelas's "general fund of knowledge" appears poor. "TABE" testing⁶ showed a language score of 1.4 and an overall score of 0.However, developmental disability screening "indicated normal cognitive functioning" when given in Spanish, and Varelas does not suffer from an overall developmental disability (mental retardation). The psychologist opined that "the exact nature of his learning problems is unclear." He received average grades while attending Adult Basic Education and certain of his teachers noted his efforts; other teachers opined that Varelas does not appear motivated, or that his interest in education has waned. As of 2009, his teachers indicated he was no longer benefitting from the educational program and had reached a " 'plateau.' "

Varelas is employed as a cook in the institution, and his supervisor rated him as "an exceptional worker and . . . very professional." His evaluations in other positions have always been average or above average, and he is described as " 'very motivated.' " As a result of his inability to speak English, he has been unable to complete vocational training programs while incarcerated.

Varelas attended a Life Support Group from 1997 through 2001, and participated in sections on anger management, preparation for a Board appearance, survival in prison, control over your life, spousal and child abuse, and stress management, among others. He also participates in sports and weekly Catholic services.

(iii) Alcohol use and participation in Alcoholics Anonymous.

Varelas began drinking when he was 16 years old, but reportedly did not drink regularly. On the night of the murder, a relative encouraged him to drink and he complied to be social, imbibing six to seven beers, more than usual. Varelas admitted that his consumption of alcohol was related to his commitment of the murder. The psychologist concluded that because the crime was committed when Varelas was under the influence, his...