In re Calderon

• Decision Date: 13 October 2010
• Docket Number: No. A125831.,A125831.
• Court: California Court of Appeals Court of Appeals
• Parties: In re Joseph CALDERON, on Habeas Corpus.

184 Cal.App.4th 670

109 Cal.Rptr.3d 229

In re Joseph CALDERON, on Habeas Corpus.

No. A125831.

Court of Appeal, First District, Division 2, California.

May 12, 2010.

As Modified on Denial of Rehearing May 18, 2010.

Ordered Not Officially Published Oct. 13, 2010.^*

Michael E. Beckman, Santa Monica, for Petitioner.

Edmund G. Brown Jr., Attorney General, Julie L. Garland, Sr. Asst. Attorney General, Anya M. Binsacca, Super. Deputy Atty. Gen., Brian C. Kinney, Deputy Attorney General, for Respondent.

KLINE, P.J.

On June 28, 1994, based on his plea of guilty, Joseph Calderon was convicted of murder in the second degree with the use of a firearm. He was sentenced to state prison for the indeterminate term of 18 years to life, became eligible for parole on October 18, 2005, and was denied parole earlier that year. About three years later, on June 19, 2008, the Board of Parole Hearings (Board) found Calderon suitable for parole and granted him a release date.

The Governor reviewed the Board's decision and, on November 10, 2008, reversed it. Calderon challenged the Governor's decision in a petition for writ of habeas corpus filed in the San Francisco Superior Court, which was denied by that court on July 14, 2009.

On August 21, 2009, Calderon filed a petition for writ of habeas corpus in this court, and we issued an order to show cause. Finding that the Governor's reversal of the parole date granted Calderon by the Board is not supported by any evidence, we shall grant the petition.

BACKGROUND

The Commitment Offense

At approximately two in the morning on October 11, 1993, Calderon and two friends, William Glasgow and Sergio Alarcon, were driving through the Mission district of San Francisco after leaving a night club where they had been drinking. While on their way home, the group decided to rob Mission News, an adult bookstore near the corner of 17th and Mission Streets. Calderon and Alarcon entered the bookstore while Glasgow remained in the car outside. ¹ Calderon presented a gun and ordered the clerk to remove the money in the register. John Ybarra, a security guard seated behind a counter, arose and fired two shots at Calderon and Alarcon. The two fled and Ybarra chased them while he and Calderon exchanged gun fire. All three suffered bullet wounds and Ybarra died from his. Calderon and his friends drove to St. Luke's Hospital where they were apprehended by the police.

All three were arrested for the attempted robbery and murder of Ybarra. Calderon was charged with attempted robbery and special circumstances murder, both with allegations of use of a firearm. He pled guilty to second degree murder with personal use of a firearm and, on July 27, 1994, was sentenced to 18 years to life. The charges against Alarcon and Glasgow were dismissed.

The 2008 Parole Hearing

Calderon testified at the June 19, 2008 parole hearing that he and his friends did not plan the robbery, but acted on the spur of the moment. "We were on our way home from a club. We were talking, and we had decided to do this robbery, which I now know ... was very foolish. It just—everything kind of—like I said, it wasn'tplanned. It went kind of quick, and you know, today I realize, you know, if I would have thought through the consequences or what could have been, it wouldn't have happened. To speak in the mind frame of back then, as opposed to now, back then we weren't thinking. We weren't thinking."

Describing the events leading up to the murder, Calderon told the Board he and his friends had been "out drinking" and had smoked marijuana earlier in the day. Asked if he was "under the influence" at the time of the offense, Calderon said, "[a]t the time, yes, but I don't—I don't minimize my action. I accept full responsibility." Calderon repeatedly acknowledged that due to his "stupid choice," "a man was killed that night" and "[t]here's no going around that." At one point, after a member of the Board inquired about Calderon's current understanding of the consequences of his mistake and Calderon had reiterated his remorse, Calderon stated: "[E]ver since that day, all's I have done is try to grow and learn and what, you know, I ask myself, why did I do what I did, and when I found out what I did what I did [ sic ], then it's just like—I just feel like—a man was killed because of this? Because I was struggling with issues?" Asked what these issues were, Calderon said they had their roots in the fact that he grew up in "a dysfunctional family." Acknowledging that "none of this is an excuse," Calderon added that he was about to get married, did not understand what having a normal life would be at the time, and "was dealing with a lot of insecurities and fears about both success and failure."

Calderon also recounted at some length the role alcohol played in the commission of his offense, and the extent to which alcohol and drugs negatively shaped his life. In addition to 1990 misdemeanor convictions of possession and sale of a controlled substance (cocaine and PCP), for which he was sentenced to 15 days in county jail, Calderon was convicted in 1992 of driving under the influence of alcohol or drugs, for which he was granted probation. After he was convicted of reckless driving about a month later, Calderon's probation was revoked and he was sentenced to 90 days in county jail. Following his first conviction, Calderon participated in a drug diversion program that failed, according to Calderon, because it addressed "the effect of the problem" but not the source. Calderon now feels that at the time of his offenses he was using drugs and alcohol "to cover up [his] insecurities and fears." To overcome these problems, he said, "I had to do a lot more searching, and I had to find out about why I feel the way I feel and why I do the things I do." Calderon felt he had engaged in this self-examination fairly consistently while in prison and wished "I would have done it prior to this, but I had to go through life since then asking myself the whys. Why did I make that decision. Why did I do that. Why was I selfish." By asking those questions, he said, " I've come up with a way of identifying issues and my own weaknesses and not covering them up with alcohol or drugs but addressing them and recognizing them."

After the death of his father and the loss of other relatives, Calderon's life "started to have more meaning" and he "started to learn more" about himself: "[A]s each person that's close to me died, ... I thought about my victim.... I wonder how my victims feel. You know, I wonder how [Ybarra's] mom feels, and I know he had a sister and a brother, and I understand that even though they died and it hurt me and I cried, I understand that their loved one didn't die. He was killed, and [the loss] has to be intensified."

When asked by a friend "if somebody killed your daughter, how would you feel," Calderon initially refused to consider such a possibility because it "scared" him, but it also made him realize that such fear "[was] the Ybarra's family reality." Calderon compared the effect of his actions to the ripple effect of throwing a stone in a pond. "[Y]ou know it has waves.... I've thought about, you know, Ms. Egu [the clerk at the store] ... [S]he wasn't physically harmed, but I know I harmed her. You know, anybody that was in that place, I know they were harmed."

Calderon also acknowledged to the Board the role anger had played in his life: "In terms of the crime itself, I don't know if I could say I was angry that night, but anger itself is one of the many things that I've dealt with, when I was young, especially. Now, over the years, I've learned to deal with anger, and I understand anger in itself isn't wrong. Anger in itself is just an emotion or feeling. In itself, it isn't wrong. What we decide to do with that anger can be wrong. And anger—I know today, can be both positive or negative. I can use anger to change and do things better, to avoid situations, and I can always—I can—it can actually be a positive emotion. You know, there's the thing they call 'Righteous Anger,' but even with anger, and I don't know if I'm answering your question fully. It's something I've thought about. Something I've dealt with along the path is I know that anger doesn't take away your decision, and anger in itself, as a feeling, isn't a wrong thing. People get angry."

This personal "searching," as Calderon repeatedly referred to his attempts to understand the causes of his criminal conduct, is evident throughout the hearing, on topics ranging from the abuse he suffered as a child to his brief membership in a prison gang. Asked about his relationship with his father, Calderon prefaced his answer by saying, "I don't have a problem speaking about any of my childhood, but please don't see that I'm making in any way making excuses.... I accept responsibility for what I did.... There was a point in my life where I really knew what was right and wrong, and I chose wrong that night, and it ended [with] a man being killed." He then explained that while he "loved [his] dad," he "understand[s] that you're only a parent one time" and "sometimes you're going to make mistakes." In answering his own hypothetical question "did I have the best childhood," he answered "probably not," and explained that there was "physical and verbal abuse" in the family, "not only amongst them to me, but them amongst themselves."

Asked whether he had been a member of a gang before entering prison, Calderon stated he had not, but that he did belong to a "graffiti crew" that called itself "Here Comes Trouble." The difference, he explained, was that "a gang represents a neighborhood," but a graffiti crew is "into art." Calderon conceded, however, that "[s]ome of the belief systems are the same." Calderon joined the graffiti crew when he was 14 or 15 and remained "associated" with it for "a couple of years."

It was not until he entered prison in 1994 that Calderon first became associated with a gang—the "Northern...