In re Viray

75 Cal.Rptr.3d 190

161 Cal.App.4th 1405

In re Nicomedes VIRAY on Habeas Corpus.

No. D050934.

Court of Appeal, Fourth District, Division 1.

April 15, 2008.

Rich Pfeiffer, under appointment by the Court of Appeal for Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L Garland, Senior Assistant Attorney General, Heather Bushman and Linnea D. Piazza, Deputy Attorneys General for Respondent.

McINTYRE, J.

Nicomedes Viray challenges Governor Arnold Schwarzenegger's reversal of a decision by the Board of Parole Hearings (the Board) finding him suitable for release on parole. We conclude there was no evidence to support the Governor's ultimate conclusion that Viray was unsuitable for parole because he currently posed an unreasonable risk to public safety and therefore grant the requested relief.

I. FACTS

A. The Offense, Trial and Appeal

The facts of Viray's offense, as derived from the Governor's reversal of the Board's decision, are as follows:

On the night of February 14, 1982, 27-year-old Viray went to a nightclub with several of his friends carrying a large knife in his waistband. While on the dance floor, Victor Gonzales Cacha bumped into Viray several times and kicked him. Viray felt intimidated, drew his knife and stabbed Cacha once or twice in the chest. Viray continued to stab Cacha after the men fell to the floor. Someone took the knife away from Viray, but one of Viray's friends grabbed the knife and fled the nightclub with Viray. Cacha suffered stab wounds to each arm, left thigh, heart and lung and died from his injuries.

Police arrested Viray the following day and discovered that he had no prior criminal record. A jury convicted Viray of second-degree murder with the use of a knife and the trial court later sentenced him to 15 years to life in prison for the murder, plus one year for the knife enhancement. We affirmed the judgment on appeal.

B. Viray's Performance in Prison

During his approximately 24 years in prison, Viray was disciplined once in 1983 for possessing marijuana and counseled four times for minor misconduct. Viray received his GED in 1985 and has taken biblical and learning improvement courses. He completed vocational training in air conditioning and refrigeration, sheet metal and data processing and held institutional jobs as a janitor, tool room attendant, wood machinist, porter and sole layer. Viray has taken part in extracurricular activities and participated in therapy and self-help activities, including, Alcoholics Anonymous, Anger Management, Communication Skills Training, Anger Control Group, The Way to Happiness, Reality and Decision-Making, and Self-Esteem and Assertiveness. He also received favorable reports from various correctional and mental-health professionals over the years and has maintained supportive relationships with family and others.

If released from prison, Viray is subject to deportation to the Philippines where he has family with whom he can live and employment offers. If not deported, Viray plans to live with is sister and brother-in-law in San Diego County.

C. The Present Proceedings

The present parole hearing was conducted in 2006. The Board noted that Viray had been drinking too much and had been provoked by the victim. It concluded that Viray was suitable for parole and would not pose an unreasonable risk to society if released from prison. The Governor reversed the Board's parole grant, noting that the offense "was especially aggravated because of the extremely violent nature of the attack, which involved multiple stab wounds, and because the motive was materially less significant than those which conventionally drive people to commit such a murder." The Governor also concluded that Viray's behavior of leaving the nightclub after the assault and going to other nightclubs "exhibit[ed] a callous disregard" for Cacha's suffering. He noted that the San Diego County District Attorney's Office opposed Viray's release based, in part, on the gravity of the offense and found that the gravity of the murder was alone sufficient to conclude that releasing Viray from prison would pose an unreasonable public safety risk.

Viray petitioned the San Diego County Superior Court for a writ of habeas corpus alleging that the Governor's finding that the gravity of the murder alone was sufficient to conclude that his release would cause an unreasonable risk to society was not supported by some evidence and contrary to the rehabilitative goals espoused by the prison system. The court denied the writ, concluding that the Governor's decision was supported by some evidence. Viray filed a writ petition in this court and we issued an order to show cause why the relief requested should not be granted.

II. DISCUSSION

A. The Statutory Framework and Judicial Review

The purpose of parole is to "help individuals reintegrate into society as constructive individuals as soon as they are able, without being confined for the full term of the sentence imposed." (Morrissey v. Brewer (1972) 408 U.S. 471, 477, 92 S.Ct. 2593, 33 L.Ed.2d 484.) Although parolees are no longer in physical custody, they remain under the legal custody of the Department of Corrections and Rehabilitation and can be returned to prison at any time. (Pen.Code, § 3056; People v. Denne (1956) 141 Cal.App.2d 499, 508, 297 P.2d 451 [parolees are permitted to serve the remainder of their term outside rather than within prison walls].) Parolees are also subject to conditions that govern their residence, associates, ability to travel, use of intoxicants and other aspects of their lives. (Cal.Code Regs., tit. 15, §§ 2512-2513.)

The granting of parole is an essential part of our criminal justice system and is intended to assist those convicted of crime to integrate into society as constructive individuals as soon as possible and alleviate the cost of maintaining them in custodial facilities. (Morrissey v. Brewer, supra, 408 U.S. at p. 477, 92 S.Ct. 2593; People v. Vickers (1972) 8 Cal.3d 451, 455, 458, 105 Cal.Rptr. 305, 503 P.2d 1313.) Release on parole is said to be the rule, rather than the exception (In re Smith (2003) 114 Cal.App.4th 343, 351, 7 Cal. Rptr.3d 655, citing Pen.Code, § 3041 subd. (a)) and the Board is required to set a release date unless it determines that "the gravity of the current convicted offense ... is such that consideration of the public safety requires a more lengthy period of incarceration...." (Pen.Code, § 3041 subd. (b).)

In determining whether an inmate is suitable for parole, the Board and the Governor must consider certain factors tending to show suitability and unsuitability for parole. (Cal. Const., art. V, § 8(b); Pen.Code, § 3041.2.) The specified factors are "general guidelines" (Cal.Code Regs., tit. 15, § 2402, subds. (c), (d)) and the Board is expected to consider "[a]ll relevant, reliable information available" because circumstances taken alone, while not establishing unsuitability for parole, may contribute to a pattern which results in a finding of unsuitability. (Id. at subd. (b).)

Circumstances tending to show suitability for parole include that the inmate: (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his life, especially if the stress had built over a long period of time; (5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use upon release; and (9) has engaged in institutional activities that suggest an enhanced ability to function within the law upon release. (Cal.Code Regs., tit. 15, § 2402, subd. (d).)

A prisoner may be considered unsuitable for parole based on six nonexclusive factors, including: (1) the nature of the commitment offense; (2) a previous record of violence; (3) an unstable social history; (4) a record of sadistic sexual offenses; (5) psychological factors; and (6) serious prison misconduct. (Cal.Code Regs., tit. 15, § 2402, subd. (c).) The only factor at issue in this case is the nature of Viray's offense, specifically, whether it was committed in an "especially heinous, atrocious or cruel manner." (Id. at subd. (c)(1).) Some aspects of the crime to consider in deciding this particular factor include whether: (1) there were multiple victims; (2) the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (3) he abused, defiled or mutilated the victim during or after the offense; (4) he carried out the offense in a manner demonstrating an exceptionally callous disregard for human suffering; and (5) the motive for the crime was inexplicable or very trivial in relation to the offense. (Ibid.)

The Governor has the authority to review the Board's decision to parole an inmate convicted of murder. (Cal. Const., art. V, § 8(b); Pen.Code, § 3041.2.) The Governor's decision to reverse a grant of parole by the Board is governed by the same factors that guide the Board's decision (Cal. Const., art. V, § 8(b)), and is based on "materials provided by the parole authority." (Pen.Code, § 3041.2, subd. (a).) The judicial branch is authorized to review the factual basis of the Governor's decision. (In re Rosenkrantz (2002) 29 Cal.4th 616, 667, 128 Cal.Rptr.2d 104, 59 P.3d 174 (Rosenkrantz).) Although due process requires that the Governor's decision be supported by "some evidence" in the record, only a modicum of evidence is required and the Governor has the authority to resolve any conflicts in the evidence and to decide the weight to be given the evidence. (Id. at p. 677, 128 Cal.Rptr.2d 104, 59 P.3d 174.)

"[T]he precise manner in which the specified factors relevant to...