Sanchez v. Curry

• Decision Date: 25 August 2010
• Docket Number: No. C 07-3599 VRW (PR),C 07-3599 VRW (PR)
• Citation: 735 F.Supp.2d 1178
• Parties: Jorge SANCHEZ, Petitioner, v. Ben CURRY, Warden, Respondent.
• Court: U.S. District Court — Northern District of California

735 F.Supp.2d 1178

Jorge SANCHEZ, Petitioner,

v.Ben CURRY, Warden, Respondent.

No. C 07-3599 VRW (PR).

United States District Court, N.D. California.

Aug. 25, 2010.

Jorge Sanchez, Soledad, CA, pro se.

Amber Nicole Wipfler, Office of the Attorney General, San Francisco, CA, for Respondent.

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

VAUGHN R. WALKER, Chief Judge.

Petitioner Jorge Sanchez, a state prisoner incarcerated at the Correctional Training Facility in Soledad, California, seeks a writ of habeas corpus under 28 USC § 2254 challenging the denial of parole by the California Board of Parole Hearings ("BPH"). BPH's denial of parole challenged here followed the governor's reversal of BPH's earlier decision that found petitioner suitable for parole. Following the governor's reversal, BPH held petitioner's third parole suitability hearing and found him unsuitable for parole. Doc. # 6-2 at 2, 94-100. Petitioner unsuccessfully challenged BPH's decision in the state superior and appellate courts. Doc. # 6-4 at 2-3; Doc. # 6-5 at 2. After the Supreme Court of California denied his petition for review, Doc. # 6-6 at 2, petitioner filed the instant federal petition for writ of habeas corpus. Doc. # 1.

The court found petitioner's claim that BPH violated his due process rights, when liberally construed, colorable under 28 USC § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Doc. # 2. Respondent filed an answer, Doc. # 6; petitioner did not file a traverse.

On April 28, 2009, while the instant petition was pending, petitioner had a subsequent parole suitability hearing at which time BPH again found petitioner suitable for parole. Doc. # 7-2 at 2. And again the governor subsequently reversed and denied petitioner a parole date. Doc. # 7-3 at 2-6.

On April 22, 2010, the Ninth Circuit issued its decision in Hayward v. Marshall, 603 F.3d 546 (9th Cir.2010) (en banc), which addressed important issues relating to federal habeas review of BPH decisions denying parole to California state prisoners. On May 6, 2010, the court ordered the parties to file supplemental briefing explaining their views of how the Hayward en banc decision applies to the facts presented in petitioner's challenge to BPH's decision denying him parole. Doc. # 8. Respondent filed supplemental briefing on May 28, 2010; petitioner filed his briefing on June 25, 2010. Doc. 9 & 10.

For the reasons set forth below, the court finds that the state courts' endorsements of BPH's decision denying petitionerparole at his September 2005 parole suitability hearing "was an 'unreasonable application' of the California 'some evidence' requirement and was 'based on an unreasonable determination of the facts in light of the evidence.' " See Hayward, 603 F.3d at 562-63 (citations omitted). The petition will be granted.

I

On January 13, 1990, petitioner, while driving at a high rate of speed in Los Angeles County, failed to stop for a red light, swerved through an intersection and hit two pedestrians as they were crossing the street. Doc. # 6-2 at 10. One of the victims at the scene died and the other suffered major injuries. Id. at 10-11. Petitioner's blood alcohol level was .24 percent. Id. at 11. Petitioner pled guilty to second degree murder in Los Angeles County Superior Court and, on August 3, 1990, was sentenced to fifteen-years-to-life in state prison. Doc. # 6-1 at 2.

II

The Ninth Circuit's recent en banc decision in Hayward clarified the scope of federal habeas review of BPH decisions denying parole to California state prisoners. Hayward, 603 F.3d 546. The court first explained the law in California as it relates to parole suitability determinations:

The California parole statute provides that the Board of Prison Terms "shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual." The crucial determinant of whether the prisoner gets parole in California is "consideration of the public safety."

In California, when a prisoner receives an indeterminate sentence of fifteen years to life, the "indeterminate sentence is in legal effect a sentence for the maximum term, subject only to the ameliorative power of the [parole authority] to set a lesser term." Under the California parole scheme, the prisoner has a right to a parole hearing and various procedural guarantees and rights before, at, and after the hearing; a right to subsequent hearings at set intervals if the Board of Prison Terms turns him down for parole; and a right to a written explanation if the Governor exercises his authority to overturn the Board of Prison Terms' recommendation for parole. Under California law, denial of parole must be supported by "some evidence," but review of the [decision to deny parole] is "extremely deferential."

Hayward, 603 F.3d at 561-62 (footnotes and citations omitted). The court further explained that:

[s]ubsequent to Hayward's denial of parole, and subsequent to our oral argument in this case, the California Supreme Court established in two decisions, In re Lawrence [44 Cal.4th 1181, 82 Cal.Rptr.3d 169, 190 P.3d 535, 549 (Cal.2008) ] and In re Shaputis, [44 Cal.4th 1241, 82 Cal.Rptr.3d 213, 190 P.3d 573, 582 (Cal.2008) ] that as a matter of state law, "some evidence" of future dangerousness is indeed a state sine qua non for denial of parole in California. We delayed our decision in this case so that we could study those decisions and the supplemental briefs by counsel addressing them. As a matter of California law, "the paramount consideration for both the Board [of Prison Terms] and the Governor under the governing statutes is whether the inmate currently poses a threat to public safety." [Lawrence, 82 Cal.Rptr.3d 169, 190 P.3d at 552.] There must be "some evidence" of such a threat, and an aggravated offense "does not, in every case, provide evidence that the inmate is a current threat to public safety." [ Id., 82 Cal.Rptr.3d 169, 190 P.3d at 554.] The prisoner's aggravated offense does not establish current dangerousness "unless the record also establishes that something in the prisoner's pre- or post-incarceration history, or his or her current demeanor and mental state" supports the inference of dangerousness. [ Id., 82 Cal.Rptr.3d 169, 190 P.3d at 555.] Thus, in California, the offense of conviction may be considered, but the consideration must address the determining factor, "a current threat to public safety." [ Id., 82 Cal.Rptr.3d 169, 190 P.3d at 539.]

Hayward, 603 F.3d at 562 (footnotes omitted).

After providing this background on California law as it applies to parole suitability determinations, the court then explained the role of a federal district court charged with reviewing the decision of either BPH or the governor in denying a prisoner parole. According to the Ninth Circuit, this court must decide whether a decision "rejecting parole was an 'unreasonable application' of the California 'some evidence' requirement, or was 'based on an unreasonable determination of the facts in light of the evidence.' " Hayward, 603 F.3d at 562-63 (citations omitted); see also Cooke v. Solis, 606 F.3d 1206, 1208, n. 2 & 1216 (9th Cir.2010) (applying Hayward and explicitly rejecting the state's argument that "the constraints imposed by [the Antiterrorism and Effective Death Penalty Act ("AEDPA") ] preclude federal habeas relief" on petitioner's claim; noting that in Hayward, the court "held that due process challenges to California courts' application of the 'some evidence' requirement are cognizable on federal habeas review under AEDPA").

III

When assessing whether California parole board's suitability determination was supported by "some evidence," the court's analysis is framed by the "regulatory, statutory and constitutional provisions that govern parole decisions in California." Cooke, 606 F.3d at 1213 (citing In re Rosenkrantz, 29 Cal.4th 616, 128 Cal.Rptr.2d 104, 59 P.3d 174 (2002)); see Hayward, 603 F.3d at 561-62. Under California law, prisoners serving indeterminate life sentences, like petitioner, become eligible for parole after serving minimum terms of confinement required by statute. In re Dannenberg, 34 Cal.4th 1061, 1069-70, 23 Cal.Rptr.3d 417, 104 P.3d 783 (2005). Regardless of the length of the time served, "a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison." Cal. Code Regs. tit. 15, § 2402(a). In making this determination, BPH must consider various factors, including the prisoner's social history, past and present mental state, past criminal history, the base and other commitment offenses, including behavior before, during and after the crime, past and present attitude toward the crime and any other information that bears on the prisoner's suitability for release. See Cal. Code Regs. tit. 15, § 2402(b)-(d).

In considering the commitment offense, BPH must determine whether "the prisoner committed the offense in an especially heinous, atrocious or cruel manner." Cal. Code Regs. tit. 15, § 2402(c)(1). The factors to be considered in making that determination include: "(A) Multiple victims were attacked, injured or killed in the same or separate incidents; (B) The offensewas carried out in a dispassionate and calculated manner, such as an execution-style murder; (C) The victim was abused, defiled or mutilated during or after the offense; (D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering; (E) The motive for the crime is inexplicable or very trivial in relation to the offense." Id.

According to the California Supreme Court, "the core statutory determination entrusted to the Board and the...