Ledesma v. Marshall

• Decision Date: 05 August 2009
• Docket Number: Case No. 08cv0309-JTM(CAB).
• Court: U.S. District Court — Eastern District of California
• Parties: George LEDESMA, Petitioner, v. John MARSHALL, Warden, Respondent.

658 F.Supp.2d 1155

George LEDESMA, Petitioner, v. John MARSHALL, Warden, Respondent.

Case No. 08cv0309-JTM(CAB).

United States District Court, E.D. California, Fresno Division.

August 5, 2009.

COPYRIGHT MATERIAL OMITTED

Roger Sandberg Hanson, Law Office of Roger S. Hanson, Santa Ana, CA, for Petitioner.

Maria G. Chan, California Attorney General's Office, Sacramento, CA, for Respondent.

ORDER GRANTING 28 U.S.C. § 2254 HABEAS PETITION

JEFFREY T. MILLER, District Judge.

George Ledesma ("Ledesma"), a state prisoner proceeding with the assistance of counsel, petitions this Court for a 28 U.S.C. § 2254 writ of habeas corpus. Ledesma is serving an indeterminate sentence of seven years to life following his 1976 guilty plea for a murder he committed in the course of a grocery store robbery. His federal Petition alleges his due process rights were violated by the Board of Parole Hearings' ("BPH") denial of parole at his November 2006 suitability hearing. He seeks reversal of that decision and discharge from custody. Respondent filed an Answer (Dkt. Nos. 11, 12), and Ledesma filed a Traverse (Dkt. No. 13). By Order entered November 25, 2008, this matter was reassigned from the bench of the United States District Court for the Eastern District of California to visiting District Judge Jeffrey T. Miller, United States District Court for the Southern District of California. (Dkt. No. 25.) After consideration of the parties' arguments, pertinent portions of the record, and controlling authority, for the reasons discussed below, the Petition is GRANTED.

I. BACKGROUND

A. Factual Background

The Court reiterates the factual background presented by the Orange County Superior Court in its August 2007 decision to deny Ledesma state habeas corpus relief. (Pet. Exh. K, Doc. 2-4, pp. 54-61.)¹ This Court applies the statutory presumption of correctness to the undisputed portions of the state court's factual findings. 28 U.S.C. § 2254(e)(1).

On the evening of October 7, 1976, petitioner and two armed confederates entered a busy Albertsons grocery store in Anaheim intending to rob the same. Petitioner was personally armed with a double-barreled, sawed off shotgun. The assailants emptied a number of cash registers of their contents. When an unarmed 20 year old store clerk was unable to open a safe as requested by petitioner, petitioner intentionally and fatally shot the victim in the stomach at point blank range. The assailants fled the store.

Two days earlier, petitioner and his two confederates robbed a Ralphs grocery store in Costa Mesa. One of the victims was seriously injured when he was struck by one of the assailants with the barrel of a shotgun. Petitioner's motive for the crimes was financial gain to support his drug habit.

The record also reveals petitioner sustained multiple juvenile arrests and/or adjudications on charges of theft, possession of controlled substances, burglary, and robbery. Petitioner did not dispute the accuracy of his juvenile criminal record.

(Pet. Exh. K, Doc. 2-4, pp. 3-4 (emphasis added).)

The June 14, 1977 Abstract of Judgment and the June 13, 1977 change of plea and sentencing hearing transcript reflect Ledesma pled guilty to one count of first-degree murder (CAL. PEN.CODE § 187) with personal use of a firearm (CAL. PEN.CODE § 12022.5) and one count of first-degree robbery (CAL. PEN.CODE § 211). (Pet. Exh. B, Transcript pp. 3, 6; Pet. Exh. K, Doc. 2-4, p. 1.) The trial court found Ledesma "is not an habitual criminal" under either CAL. PEN.CODE §§ 644a or 644b. (Pet. Exh. B, Abstract p. 2, # 11.) He received "an aggregate sentence of 7 years-to-life with the possibility of parole." (Pet. P & A p. 3.) His earliest parole eligibility date was in 1983. (Pet. p. i.) "By the time of his 2006 parole hearing, his nineteenth, Mr. Ledesma had served 16 years in excess of the maximum aggregate prison term prescribed by the State's regulations for [the] commitment offenses." (Pet. p. i.)

B. November 2, 2006 Parole Suitability Hearing

1. Hearing Evidence

Presiding Commissioner Ed Martinez and Deputy Commissioner Diane Lushbough conducted the November 2, 2006 parole suitability hearing pursuant to CAL. PEN.CODE §§ 3041, 3043, and the Rules and Regulations of the Board of Prison Terms governing Parole Consideration Hearings for life inmates. After noting the panel had reviewed Ledesma's Central File ("C-File") and prior transcript, Commissioner Martinez stated, "The purpose of today's hearing is once again, to consider the number and the nature of the crimes that you were committed for, your prior criminal and your social history, and your behavior and programming since your commitment . . . for the sole purpose of determining your suitability for parole." (Pet. Exh. A, pp. 5-6.)

Among other preliminaries, Ledesma confirmed: he had never been included in any psychological programs for mental illness problems; he was in the 10th grade when he dropped out of school; while incarcerated, he had earned his GED, an Associate's degree, and needed just three classes to complete his Bachelor's degree. (Pet. Exh. A, pp. 3-5.) Ledesma stipulated to the previous record of his commitment offenses and prior criminality. As was his right, he declined to discuss the facts of the commitment offenses at the hearing because he had done so many times with the BPH, counselors, and psychologists. (Pet. Exh. A, p. 10-11.) He was, however, "willing to talk about his feelings about the crime, the feelings about the victim," and any other issues the panel might wish, preferring to "focus on what he's been doing the last 30 years" while incarcerated. (Pet. Exh. A, pp. 10-11.) The Presiding Commissioner overruled his counsel's anticipatory objection to the panel's consideration of any "115" disciplinary items due to their remoteness in time (the most recent was twelve years prior and all others were another ten years before), stating "all relevant, reliable information shall be considered in determining suitability." (Pet. Exh. A, pp. 9-10.) The Commissioner read into the record details of the crimes from the Investigating Officer's Report² and Ledesma's September 2006 response thereto:

"Ledesma states the account of the offense is accurate. However, he says the victim was unable to open the cash register and he never ordered the victim to open the safe. He admits he deliberately shot the victim. Ledesma understands what he did was wrong and his frustrations over things not going as planned got the best of him. Ledesma says he is not the same person and his whole philosophy of life has changed."

(Pet. Exh. A,16:10-19.)

Ledesma's criminal history was also read into the record "No documented juvenile history, but does acknowledge the following juvenile arrest history in a Diagnostic Unit Evaluation dated March 15th of 1985. First arrest occurred when he was about 13 years old, no specifics given. Ledesma also admitted to an arrest at age 14 for heroin . . . and burglary. He said he went to juvenile hall for it. Ledesma also said he committed two additional robberies, one at a gas station, and details were not provided on this."

(Pet. Exh. A, p. 18.)

The Presiding Commissioner extracted a "delinquency history" from Ledesma's case summary: "a '70 to '75 year bicycle theft, riding and abetting, a burglary, the possession of heroin, and a commitment to boys' ranch," with additional narcotics and drugs history recited to be "glue sniffing in 1972, barbiturates in 1971, claims at least one a week," and "'73, last habit 25 dollars a day." (Pet. Exh. Q, pp. 18-19). The Presiding Commissioner noted the record "[i]ndicates no adult convictions or arrests other than the commitment offense." (Pet. Exh. A, 19:4-11.) In the personal history category, the Presiding Commissioner read into the record:

"Ledesma was born on September 23rd of 1957 to George and Neives Ledesma . . . [as] their second child. Ledesma indicated his father was an alcoholic and he acted violently towards his wife and children. He died in 1967 and Ledesma's mother married another man who became an alcoholic two years later. When Ledesma was 15 years old his mother and stepfather divorced. He began drinking alcohol at the age of 12 and by the time he was 15 he was experimenting with several drugs. He quit school after the 10th grade and began to get in trouble with the law. By [the] time he was 18 years old Ledesma said he was spending approximately 150 dollars a day on heroin and committing crimes in order to support his habit. His younger brother Victor was also addicted to drugs at the time. Ledesma worked off and on for his uncles who were construction workers. While incarcerated, Ledesma has earned his high school diploma, AA degree, and is working toward his BS degree. In 1995 he married Annette Ledesma. According to him, approximately two and a half years ago his wife asked for a divorce" [and he indicated on the record that process had started].

(Pet. Exh. A, pp. 19-20 (emphasis added).)

His social network included two brothers and four sisters. His brother "Victor Ledesma, 46, was his crime partner in the incident offense." (Pet. Exh. A, p. 20.) His brother Marcello Reyes, age 33, lived with their mother in Westminster, California, had visited Ledesma two years before the hearing, and wrote him letters. His 49-year-old sister, Sally Ledesma, lived in Lakewood, California, wrote him letters and had visited him most recently five weeks before the hearing. His sisters Gloria Ledesma, aged 47, and Rosalea Reyes, aged 35, maintained no contact with him. (Pet. Exh. A, pp. 20-21.) When asked, Ledesma explained that Gloria had inherited their father's alcoholism, "has been struggling with the bottle ever since I've been in prison," and was homeless, despite their mother's efforts to keep her home, but he had spoken to her about six months earlier when she told him she still thought of him and loved him. (Pet. Exh. A, pp. 26-27.) He described his half-sister...