In re Cortinas, H025526.

CourtCalifornia Court of Appeals
Writing for the CourtRushing
Citation118 Cal.App.4th 777,13 Cal.Rptr.3d 401
PartiesIn re Javier O. CORTINAS, on Habeas Corpus.
Docket NumberNo. H025526.,H025526.
Decision Date13 May 2004
13 Cal.Rptr.3d 401
118 Cal.App.4th 777
In re Javier O. CORTINAS, on Habeas Corpus.
No. H025526.
Court of Appeal, Sixth District.
May 13, 2004.
Rehearing Granted June 10, 2004.

[13 Cal.Rptr.3d 402]

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Frances T. Grunder, Senior Assistant Attorney General, Paul D. Gifford, Senior Assistant Attorney General, Allen R. Crown, Acting Senior Assistant Attorney General, Anya M. Binsacca, Supervising Deputy Attorney General, Diann Sokoloff, Deputy Attorney General, Jessica N. Blonien, Deputy Attorney General, Song Jin Hill, Deputy Attorney General, for Plaintiff and Appellant.

Law Offices of the Public Defender, Jose R. Villarreal, Public Defender, Barbara B. Fargo, Deputy Public Defender, for Defendant and Respondent.



The Board of Prison Terms (the Board) appeals from an order directing it to schedule a parole release date for defendant Javier O. Cortinas. (See Pen.Code, § 1506.)1 The procedural history of the case is as follows.

In 1986, defendant pleaded guilty to second degree murder with a knife and was sentenced to a term of 17 years to life. The California Department of Corrections set his minimum and maximum eligibility parole dates, respectively, at August 3, 1995, and December 6, 2000. In 1995 and in 1997, the Board conducted parole hearings and denied parole both times. On September 13, 2000, the Board conducted a third hearing and again found defendant unsuitable for parole. (See § 3041.) Defendant filed an administrative appeal, which was denied on June 12, 2001. Thereafter, on January 14, 2002, defendant sought a writ of habeas corpus from the superior court, challenging the Board's decision. On January 24, 2003, the court granted the writ, reversing the Board's decision.

In particular, the trial court found that there was no evidence to support the Board's decision. Moreover, it found that the decision was actually based on a no-parole policy for convicted murderers, and, in applying it, the Board violated the terms of defendant's plea bargain. Under

13 Cal.Rptr.3d 403

the circumstances, the court independently reviewed the record and found that defendant was entitled to parole. As noted, the court ordered the Board to set an immediate parole release date.

On appeal from the order, the Board claims the court erred in finding that there was no evidence to support its decision and that it was based on a no-parole policy. The Board further claims the trial court lacked the authority to order a parole release date.

We reverse the trial court's order.


I. The Commitment Offense and Other Criminal History

In 1985, defendant, then 19, and David Herena, then 17, were neighborhood friends. According to defendant, he tried to help guide Herena away from criminal and local gang influences. Over time, however, he felt that Herena was resisting his efforts, and, becoming discouraged, he started to shun Herena. Herena then became upset over the loss of friendship and support.

At some point during this time, defendant had an argument with one of Herena's friends. As a result, he believed that this person might attack him. Then, on August 9, 1985, Herena came by defendant's residence at around 11:00 or 11:30 p.m. and called for defendant. Defendant, who had been drinking earlier that afternoon, thought Herena might be setting him up to be attacked. When defendant came outside, Herena challenged him to a fight. They went into the front yard together, and then defendant went back inside the house, where he got a kitchen knife. He then returned to Herena and repeatedly stabbed him, at times in the back. Before fleeing the area, defendant stripped Herena, threw his clothes around, covered the body with a sheet, stuck a cross in the ground, and placed some pots around him. Defendant returned several hours later and was arrested.

At his parole hearing, defendant explained that he feared for his life that night because Herena often carried a weapon, and had his hands in his pocket. Defendant admitted that in addition to drinking that day, he was in a bad mood, he had had personal problems at home, and he was frustrated. He said he "overreacted" and took his rage out on Herena. He denied intending to kill Herena, saying he only wanted to hurt him.

Prior to the killing, defendant had no history of violence, and his criminal record comprised prior convictions for possession of alcohol and driving under the influence.

II. Additional Evidence Adduced at the Parole Hearing

In addition to defendant's commitment offense and criminal history, the Board considered defendant's history of substance abuse. Defendant explained that he started drinking at age 16. When asked about other drugs, defendant said he experienced marijuana and cocaine. He later admitted that he regularly used marijuana and snorted cocaine whenever it was available. (See fn. 16, post.)

The Board also considered defendant's overall programming and reviewed his file and prior transcripts. Defendant's record includes a 1989 psychological evaluation, which attributed Herena's murder to defendant's "long history of polysubstance abuse." The report opined, however, that defendant was motivated to explore in-depth "the psychogenesis of his commitment offense," commended him for his participation in group therapy and substance abuse programs, and predicted that he would become "conversant with those

13 Cal.Rptr.3d 404

subconscious forces which culminated in the murder of his best friend."

In a 1994 psychological report, the staff psychologist opined that defendant had insight into the factors that caused the killing. He noted that in 1992, defendant received a disciplinary notation, "CDC 115 for fighting," but has remained discipline free since then. He further noted that defendant has been "very active" in Alcoholics Anonymous (AA) and had profited from extensive therapy. He opined that "[defendant's] potential for violence in this controlled setting, particularly as he matures, is average to less than average. If he continues to remain abstinent of alcohol and drugs, I feel that this would continue after he paroles." Nevertheless, he believed defendant needed more education concerning his substance abuse and more understanding of the AA process. He recommended continued participation in an AA program and monitoring if and when he is granted parole. However, he found that overall, defendant's prognosis was "very good."

The Board expressly noted subsequent evaluations. In particular, it noted a "Life Prisoner Evaluation" by Richard Hawkins, a prison counselor, prepared in November 1999. Among other things, Hawkins opined that the murder was aggravated by the fact that defendant could have stopped after his initial confrontation with Herena and was on probation at the time of the offense. He reported that defendant had remained discipline free since his last hearing and had maintained his commitment to AA, for which he received a certificate of participation. Hawkins reported that defendant's job supervisor rated his performance as "`exceptional'" and lauded his professionalism and personal appearance. However, Hawkins pointed out that defendant did not "upgrade his Academic or Vocational skills since his last Board appearance." Given "the commitment offense, prior criminal behavior, adjustment to prison, the amount of time spent in preparation for the future release," Hawkins opined that "the prisoner represents an unpredictable degree of threat to the community, if release at this time." He recommended that defendant remain discipline free, expand his vocational and educational skills, and continue his participation in therapy and AA.

The record contains a "CDC-128-G" classification memorandum dated March 23, 2000, and signed by Hawkins, that reveals discipline notations for fighting in 1990, conduct that could lead to violence in 1991, fighting in 1992, and disrespectful conduct in 1997.

The Board also expressly noted a "Life-Term Mental Health Evaluation" prepared in March 2000, by O.S. Glover, Ph.D., a clinical psychologist at Folsom Prison. Glover reviewed defendant's developmental, educational, and family history, finding no abnormal experiences, intellectual deficiencies, or problematic relationships that might indicate abnormal behavioral responses. Concerning the killing, Glover opined that defendant was "genuinely remorseful" and noted that after it happened, defendant was so bothered, he started to hallucinate in jail and had to be medicated. Moreover, before entering his plea, defendant was diagnosed with schizophrenia and was later treated for psychosis and took anti-psychotic medication for 10 years. However, prison psychologists later rejected this diagnosis, and Glover believed the psychotic episode in jail was a manifestation of posttraumatic stress. Glover noted that defendant said he had been depressed as a teenager because his father was so strict, but he opined that defendant's depressive and paranoid ideations while related to his difficult relationship with his father were primarily the

13 Cal.Rptr.3d 405

result of his use of drugs, which can cause those types of symptoms.

Concerning defendant's current dangerousness, Glover believed defendant "has a violence potential lower than that of the average inmate in similar institutional settings," and "[h]is violence potential is expected to remain lower than the average person in the free society. His prognosis is good." Moreover, because defendant "has gained a fair amount of insight into his development and subsequent crime," Glover doubted "rather seriously that [defendant] will ever perpetrate such a crime again. His guilt is likely to control him in this regard."

Concerning defendant's prospects and plans, Glover noted that he graduated from high school and then worked for an electronics company. When released, defendant planned to join...

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