Paddock v. Mendoza-Powers, Case No. SACV 07-1247-JVS(RC).
| Citation | 674 F.Supp.2d 1123 |
| Decision Date | 02 December 2009 |
| Docket Number | Case No. SACV 07-1247-JVS(RC). |
| Parties | Michael PADDOCK, aka Michael Davis, Petitioner, v. Kathy MENDOZA-POWERS, Respondent. |
| Court | U.S. District Court — Central District of California |
Michael Paddock, Avenal, CA, pro se.
Jennifer L. Heinisch, Office of the Attorney General, Los Angeles, CA, for Respondent.
IT IS ADJUDGED that Judgment be entered denying the petition and dismissing the action with prejudice.
Pursuant to 28 U.S.C. Section 636, the Court has reviewed the petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, as well as petitioner's objections, and has made a de novo determination.
IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered denying the petition and dismissing the action with prejudice.
IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judgment's Report and Recommendation and Judgment by the United State mail on petitioner.
This Report and Recommendation is submitted to the Honorable James V. Selna, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On March 27, 1987, in Orange County Superior Court case no. C62387, a jury convicted petitioner Michael Paddock, aka Michael Davis, of first degree murder in violation of California Penal Code ("P.C.") § 187(a) and found it to be true that petitioner was vicariously armed.1 Lodgment nos. 1-2. On June 23, 1987, petitioner was sentenced to 25 years to life imprisonment. Id. The petitioner appealed his conviction to the California Court of Appeal, which affirmed the judgment in an unpublished opinion filed January 30, 1989. Petition, Exh. J. The petitioner sought review from the California Supreme Court, which denied his petition. Petition at 3.
On July 25, 2006, petitioner had his third parole suitability hearing, Petition, Exh. A; Lodgment no. 4, at which time a panel of the California Board of Parole Hearings ("Board") denied petitioner parole for one year, finding he is "not yet suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison." Lodgment no. 4 at 76. In reaching its decision, the Board made the following findings:
[W]e start[] with the commitment offense, and the panel note[s] that [1] the offense was carried out in an especially cruel and callous manner when the victim, Long Nguyen, was shot and killed defending his property after responding to a vehicle alarm. The offense was carried out in a very dispassionate and calculated manner such as an execution style murder in that two weapons were used, a .38 caliber revolver and a .22 caliber rifle. The victim was shot multiple times, and the indication in the record is that the victim—excuse me, [petitioner's] crime partners were lying in wait for Mr. Nguyen, and he was lured out of the house again by the activation of the automobile alarm. The offense was carried out in a manner that demonstrates exceptionally callous disregard for human suffering in that the victim was left at the scene. He managed to get himself to the doorway of his home where he died in front of his wife and his three-year-old and five-year-old child[ren]. Motive for the crime is very inexplicable. It appears from the record that it was retaliation for the victim's previous attempt to protect his property by firing a weapon at the perpetrators in what looked like to be an automobile burglary . . . . [2] The panel note[s] that [petitioner] did have a prior arrest as a juvenile and that [petitioner] failed from society's previous attempts to correct [his] criminality, and that attempt included the ten-day placement in the juvenile probation period. And the panel also note[s] that [petitioner] w[as] on probation at the time of the commitment offense. With respect to [petitioner's] prior criminality, it was a [P.C. § ] 496—it was possession of stolen property, it wasn't a person crime. The panel also note[s] that [petitioner] did drop out of school prior to graduating. [3] So far as [petitioner's] institutional behavior, the panel note[s] that in . . . the transcript . . . from your last Board [hearing] that there was a recommendation that to the degree that it's available and possible that [petitioner] either attend an Anger Management or a CALM program. And this panel is going to encourage [petitioner] to do the same thing again to the extent that the program is available. To the extent that the program is not available, we're going to encourage [petitioner] to do some selfstudy in the area of anger management. . . . . [4] To [petitioner's] credit, we note[] that [petitioner] ha[s] no 115s, and again, I'll reiterate, that's to [petitioner's] credit, sir. [However,] [petitioner] do[es] have a 128, the only 128 being on October 5 of 1999, and this is for violation of a lock-up procedure. [5] The panel . . . considered the Psychological Report that was prepared in December of 2001 by Dr. Giantonio. And the panel note[s] that it's favorable, but the fact that it's five years old makes it of limited value. This panel and future panels would need a report that has a more current risk assessment, and to that, we've ordered that a new psychological exam be completed before [petitioner's] next hearing. There's no need for [petitioner] to come back for another hearing with a five-year-old—it's five years old right now. [6] As far as [petitioner's] parole plans, [petitioner] do[es] have viable residential plans in the county of last residence, and that's in Santa Ana with [petitioner]'s family. [7] And the panel note[s] that [petitioner has] marketable skills. [Petitioner's] got some very good solid work chronos that [he's] received from the people here in the PIA. We would encourage [petitioner] to get [his] letters updated, and we always encourage [inmates] to start the process to get them updated sooner than [they] think [they] need to, because it takes a long time for things to make its way through here. So far as the [P.C. §] 3042 notices, the District Attorney from Orange County was here, a representative indicated an opposition to the granting of a date. We do want to commend [petitioner] for [his] work reports, and again, the panel noted and considered the fact that [petitioner is] a good worker, [petitioner] get[s] along well, and it appears that [petitioner] need[s] very minimal supervision, which I think is an asset that will serve [petitioner] well when [he] get[s][his] date to get out of here. We're denying [petitioner] for one year. I think the previous panel talked to [petitioner] a little bit about the matrix, and [petitioner] said [he] understood what that's all about. What we want [petitioner] to do is make sure that [he] stay[s] disciplinary-free, and I'm even going to put on the record, that includes 128s. We know that those are called counseling chronos, but they're indicators of behavior, and there's no need with all the progress and good work that [petitioner's] done in that area to go out and get . . . anything in that neighborhood. Certainly no 115s, but no more 128s either, because all those things make [petitioner] a better candidate, and that's the only reason we're reaffirming that. Again, the self-help issue, as the last panel indicated, the programs aren't available here—and we realize often times they're not—don't let that be a restriction. . . . [Petitioner should go] out and get creative and utilize [his] own skills in doing the independent study with verification, again, as to what [petitioner] achieved as a result of doing it. And with that, I've already indicated that we've ordered [petitioner] a new psych[ ological evaluation]. [¶] . . . The paralegal stuff, if that interests [petitioner], complete it. That's another real strong decent paying job skill. And with [petitioner's] background—fortunately, with [petitioner's] background that's actually an asset to [petitioner] . . . . [¶] . . . I would continue to encourage [petitioner] to try to utilize the tribal assets, the Tribal Nations in California have achieved a fair degree of significance and prominence now as a result of something completely unassociated with this Indian Center, but don't lose sight of that as being a very significant resource. . . .
Lodgment no. 4 at 76-82 (bracketed numbers inserted).
On or about April 9, 2007, petitioner filed a habeas corpus petition in the Orange County Superior Court challenging the Board's decision, Petition at 4, and on May 9, 2007, the Superior Court denied the petition, finding the Board:
noted the crime was cruel and callous and was carried out in a very dispassionate and calculated manner "such as an execution style murder." It noted the victim was shot multiple times with two different weapons, and there was some indication of lying-in-wait on the part of the perpetrators. The [Board] also noted Petitioner had a juvenile record and had dropped out of school. He had one counseling "chrono." . . . The [Board] acknowledged that Petitioner's psychological report was favorable, but it was five years old. It acknowledged he had no disciplinary problems in prison, and he had viable parole plans. Nevertheless, the [Board] concluded it would not grant parole. It requested an updated psychological report for the next hearing.
* * *
Here, the [Board] pointed out various circumstances of the offense: it was first degree...
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