In re Perez

Decision Date29 December 2016
Docket NumberA145279,A148392
Citation212 Cal.Rptr.3d 441,7 Cal.App.5th 65
CourtCalifornia Court of Appeals Court of Appeals
Parties IN RE David PEREZ on Habeas Corpus.

Michael Satris, Bolinas, Law Office of Michael Satris, by appointment of the Court of Appeal, under the First District Appellate Project, for Petitioner.

Office of the Attorney General, Kamala D. Harris, Attorney General of California, Jennifer A. Neill, Senior Assistant Attorney General, Sara J. Romano, Supervising Deputy Attorney General, Amanda J. Murray, Deputy Attorney General, for Respondent.

Kline, P.J.Petitioner David Perez is a state prison inmate convicted of kidnapping during the commission of a carjacking and kidnapping to commit robbery, committed when he was 16 years old. He was sentenced to seven years to life in prison in 1999. He has petitioned for writs of habeas corpus, following the October 2014 and April 2016 decisions of the Board of Parole Hearings (the Board) denying him parole.1 He contends the Board's decision at the 2014 hearing, based on his purported lack of insight into his criminal conduct and his disciplinary history in prison, was arbitrary, in violation of due process, because it was unsupported by some evidence of his current dangerousness. He also contends the Board's failure to set a base term and an adjusted base term for him in accordance with the stipulated order in In re Butler (A139411) issued by this court on December 16, 2013, constituted a denial of both his right to due process and his right to be free from cruel and unusual punishment. Petitioner likewise challenges the Board's subsequent decision at the 2016 hearing to deny parole based on his failure to take responsibility for the life crime.

As we shall explain, because the evidence relied on by the Board at both the 2014 and 2016 hearings is not rationally indicative of current dangerousness, its decisions violate due process. We shall therefore grant the consolidated petitions and remand the matter to the Board for further proceedings as set forth in this opinion. (See In re Prather (2010) 50 Cal.4th 238, 244, 112 Cal.Rptr.3d 291, 234 P.3d 541 (Prather ).) However, because the Board recently set a base term and adjusted base term, we conclude petitioner's claim challenging the Board's failure to do so is moot.

BACKGROUND

In 1999, a jury found petitioner guilty of kidnapping during the commission of a carjacking (Pen. Code, § 209.5, subd. (a) ),2 and kidnapping to commit robbery (§ 209, subd. (b)), and found true the accompanying allegations that a principal in each offense was armed with a firearm. At the time the offenses took place, in 1997, petitioner was 16 years old. Petitioner was sentenced to a term of seven years to life in prison on the kidnapping during the commission of a carjacking count and a one-year consecutive term on the accompanying firearm enhancement.3 He became eligible for parole on April 29, 2005, and is currently serving his 18th year in state prison.

Following prior denials of release on parole, in 2014, the Board again denied petitioner parole and scheduled his next parole hearing to take place in three years.

On June 2, 2015, petitioner filed a habeas petition challenging the Board's denial of parole and its failure to set base and adjusted base terms. On September 9, 2015, we issued an order to show cause to the Department of Corrections and Rehabilitation, returnable before this court. Thereafter, petitioner filed a supplemental petition, real party in interest (respondent) filed a return, and petitioner filed a traverse.

Subsequently, on April 15, 2016, the Board again denied petitioner's parole request. On May 23, 2016, petitioner filed a second habeas petition, challenging the Board's 2016 denial of parole, directly with this court. On November 2, 2016, we issued an order to show cause to the Department of Corrections and Rehabilitation, returnable before this court, and consolidated the two cases. Respondent then filed a return to the second petition and petitioner filed a traverse.4

On October 20, 2016, the Board set a base term and an adjusted base term of 10 years for petitioner's life crime.

The Commitment Offense and Petitioner's Prior Juvenile Record

According to a 1999 probation report, about 7:30 p.m. on August 12, 1997, three individuals, one of whom was later identified as petitioner, were inside a white car in a Costco parking lot in Fairfield, five or six spaces away from a Mercedes Benz automobile. As the victim, the owner of the Mercedes Benz, pushed a shopping cart full of groceries from the store toward his car, two of the individuals, including petitioner, walked toward him. The second assailant pulled out a shotgun, pointed it at the victim, and said, " ‘I'm taking you and your car. Get inside.’ " The victim said, " ‘No, take the car,’ " to which petitioner responded, " ‘No, I'm taking you too.’ "

The victim offered his wallet to the suspects; the second assailant took the wallet and pushed the victim into the rear of the car. Petitioner then got into the driver's seat and the second assailant got into the front passenger seat and pointed the gun at the victim. The third individual remained in the white car and followed the victim's car as petitioner drove it out of the parking lot. The second assailant looked through the victim's wallet and, when he realized there was no money inside, he yelled at the victim. Petitioner said that they were going to "get" him and that "[w]e'll take him out to some quiet place."

The second assailant, however, said they were going to drop him off at the corner. The victim then gave the second assailant his watch.

The victim could smell alcohol on the breath of both assailants and he believed they were intoxicated. He thought they were going to kill him because petitioner "kept saying they were going to take him some place quiet and ‘take care of’ him." When petitioner slowed for a stop sign, the victim jumped out of the car and was able to get away. Later that night, the police received a call from a citizen who had observed three individuals wiping down the victim's car with rags and towels. They then got into a white car and drove away.

Latent prints subsequently recovered from outside of the driver's window of the victim's car were determined to be petitioner's. The police technician who recovered the prints stated that the prints were "pointed downward from the top of the window [and] that it appeared that whoever made the prints, grabbed the outside of the top of the driver's window from inside the car, while the window was partially rolled down." The victim also positively identified petitioner as the driver of his vehicle.

The probation report reflects that petitioner had a prior juvenile record. He was initially placed on informal probation in 1994, for two counts of theft. Probation was subsequently revoked after petitioner was twice arrested for battery. He was made a ward of the court in 1995 based on sustained counts of petty theft and battery. He was then arrested in 1996 for vandalism, and was arrested six more times during the court proceedings. After he admitted one count of vandalism and one count of felony residential burglary, he was continued as a ward. Two days after that disposition, a new petition was filed because petitioner violated a no contact order and had gang paraphernalia in his possession. He was then committed to a boy's ranch for 90 days. He committed the present offenses prior to completion of a 90-day furlough from the ranch.

The use of drugs and alcohol was not seen as a major factor in petitioner's background, although at least two of his arrests had involved possession of alcohol. Petitioner's probation had "included full gang orders. However, they did not appear to have been included because of his membership or association with an established gang, but due to his association with a group called the ‘Ridgeview Players.’ There was concern that this particular group would develop into an organized gang."

Petitioner's 2014 Psychological Evaluation

In petitioner's most recent psychological evaluation, prepared by Forensic Psychologist Kimberly Smith in May 2014, Dr. Smith reported that petitioner had described his childhood as "happy." His parents divorced when he was six years old and his father obtained custody two years later because his mother " ‘was not very stable.’ " He stated that he rebelled against his father and acknowledged a history of antisocial behavior beginning at age 12, which included stealing, vandalism, breaking into houses, fights, and running away from home.

Dr. Smith noted that, despite petitioner's occasional use of alcohol and marijuana between the ages of 13 and 14, "there was nothing in his record to suggest he had a problem with substances." Dr. Smith found that petitioner met the criteria for antisocial personality disorder

based on the fact that he "has failed to conform to social norms as evidenced by his criminal history and institutional disciplinary infractions. He has demonstrated a reckless disregard for the safety of others as evident in his life crime. Further, he has demonstrated a lack of remorse for his behavior and has been irresponsible."

With respect to petitioner's institutional adjustment and programming, Dr. Smith noted that his current classification score was 19 and he was assigned to fiber optics. He had earned his certification as a network cabling specialist and had completed three tiers of related training. He had also participated in numerous self-help groups while incarcerated. Since his last parole hearing in 2011, he had participated in, inter alia, "In-Building Self Help Program Associations as well as Criminal and Addictive Thinking Short-Term, CA New Start Transition Program, Employment Readiness Program, Victim's Awareness, Conflict Management, KATARGEO Going Home and Substance Abuse Program."

Dr. Smith reported that petitioner had ...

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  • In re Palmer
    • United States
    • California Court of Appeals Court of Appeals
    • April 5, 2019
    ...upon a similar lack of serious consideration of the diminished culpability of youth offenders by the Board. (In re Perez (2016) 7 Cal.App.5th 65, 93, 212 Cal.Rptr.3d 441 ["lip service" to consideration of statutory factors].) The Board’s published statistics raise some question as to how th......
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    ...86, 265 P.3d 253].)’ " ( In re Poole (2018) 24 Cal.App.5th 965, 972, 234 Cal.Rptr.3d 754, quoting In re Perez (2016) 7 Cal.App.5th 65, 84–85, 212 Cal.Rptr.3d 441 ( Perez ).)When the Board denied Shelton parole in 2016, it concluded he posed an unreasonable risk to public safety primarily be......
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    ...the latter at 12.2 The Attorney General argues that Palmer's claim is now moot, relying on our opinion in In re Perez (2016) 7 Cal.App.5th 65, 101–102, 212 Cal.Rptr.3d 441. While we held the issue moot in Perez , we did so against the background of our determination that there was not "some......
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