Sanchez v. Kane

• Citation: 444 F.Supp.2d 1049
• Decision Date: 01 August 2006
• Docket Number: No. CV 04-9403-AHS(RC).,CV 04-9403-AHS(RC).
• Court: U.S. District Court — Central District of California
• Parties: Fernando SANCHEZ, Petitioner, v. A.P. KANE, Respondent.

444 F.Supp.2d 1049

Fernando SANCHEZ, Petitioner, v. A.P. KANE, Respondent.

No. CV 04-9403-AHS(RC).

United States District Court, C.D. California.

August 1, 2006.

The petitioner is appearing pro se.

Heather Bushman, Deputy Attorney General, Office of Attorney General of the State of California, San Diego, CA, for The respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

STOTLER, Chief Judge.

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, 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; (3) finding the Governor's reversal of the Board's decision to grant parole to petitioner is not supported by "some evidence" in the record, and petitioner was, thus, denied due process of the law; and (4) Judgment shall be entered granting petitioner's petition for writ of habeas corpus and discharging petitioner from custody and ordering petitioner to be released on parole forthwith.

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on the parties.

REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE

CHAPMAN, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Alicemarie H. Stotler, Chief United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 01-13 of the United States District Court for the Central District of California.

BACKGROUND

I

On March 13, 1989, in Los Angeles County Superior Court case no. A969690, a jury convicted petitioner Fernando Sanchez of one count of second degree murder in violation of California Penal Code ("P.C.") § 187(a) (count 1) and also found it true that petitioner was armed with a firearm during commission of the murder within the meaning of P.C. § 12022(a). Lodgment, Exh. 1; Second Lodgment, Exh. 8. On April 10, 1989, petitioner was sentenced to 16 years to life in state prison. Lodgment, Exh. 1; Second Lodgment, Exh. 8.

The California Court of Appeal, in affirming petitioner's conviction and sentence, set forth the following factual summary underlying petitioner's offense:¹ On May 15, 1988, at about 4 p.m., Martha Calderon (Martha) parked across the street from her mother's residence at 5722% Camerford Street, Los Angeles. As she crossed the street, petitioner drove by in a blue 510 Datsun and honked to get her attention. When she turned around, he and another man, neither of whom she knew, asked her to come towards the car. She continued towards the house.

At that moment, Gonzalo Ruiz (Gonzalo), Martha's boyfriend arrived in a friend's car. Gonzalo was a member of the T.M.C. gang, an acronym for "The Magicians Club." Jealous, he approached petitioner. After arguing with petitioner he got a steel bat from his friend's car and swung the bat at petitioner and his car window, which shattered. Martha went inside the house. After petitioner drove away, Gonzalo also drove away.

At 5:30 to 6:00 p.m., petitioner told Jose Sandoval (Jose) and everyone present at a Crazy Rider gang hangout that he wanted revenge against the T.M.C. gang, because he had been hit with a bat by a member. Petitioner was upset and his arm was swollen. Petitioner talked about going back to the location to beat up his attacker. Jose was a member of the Crazy Riders and there were other Crazy Rider members there. T.M.C. and the Crazy Riders did not get along.

Petitioner then got into his car with "Lazy" and another male and drove to Third and Alvarado. Petitioner and the male went to an upstairs apartment where Frank, another Crazy Rider lived, and when they emerged one carried a bag. The cut off butt end of a 30/30 Winchester rifle stuck out of the bag. Petitioner, Lazy, Frank and the other male left in petitioner's car after Lazy announced they were going to Hollywood to kill or beat somebody from T.M.C.

Jorge Madrid (Jorge) was driving to his home on Camerford when he saw a guy get out of petitioner's car, which was driving by very slowly, and "shoot [a] boy" with the sawed off rifle. He fired two shots at the victim who was seated in his own car and then jumped back into petitioner's car, which fled.

Another witness, Juan Gutierrez, identified Lazy as the shooter from a photo lineup.

The shooting occurred only 20-30 minutes after Gonzalo's assault on petitioner with the bat. Both the victim and Gonzalo had mustaches. The victim was Palmor Vittorio (victim). He lived in the unit directly in front of Martha's mother's residence at 5725½ Camerford Street. He was not a T.M.C. member.

The victim's wife heard two gun shots and saw a young man run and jump in the back seat of petitioner's car with a sawed off rifle. As it sped away, she noticed the license plate. She then found her husband dead in his car. The victim had been killed as the result of a gun shot wound to the head.

On May 25, 1988, ten days later, petitioner was arrested and his car seized. He had repainted the car from blue to red, which operated to change its appearance.

II

On December 4, 1997, petitioner had his initial parole suitability hearing before a panel of the California Board of Prison Terms ("Board"),² which found petitioner unsuitable for parole for two years due to the nature of his commitment offense, because he was on summary probation and associating with gang members at the time of the offense, and because he needed additional time to find available therapy. Second Lodgment, Exh. 6 at 29-31.

Petitioner had a second parole suitability hearing on June 7, 2000, following which a Board panel found him unsuitable parole for one year due to the nature of his commitment offense, because he had "somewhat of an unstable social history," he had not yet sufficiently participated in beneficial self-help and therapy programming, and had two recent counseling chronos. Second Lodgment, Exh. 6 at 19-25. Petitioner appealed this decision to the full Board, which affirmed the decision on December 12, 2000. Second Lodgment, Exh. 9 at 61-65, 118-22.

Petitioner had a third parole suitability hearing on December 3, 2001, following which a Board panel again found him unsuitable for parole for one year due to the nature of his commitment offense and because he needed further therapy "to face, discuss, understand and cope with stress in a non-destructive manner." Second Lodgment, Exh. 6 at 2-5. Petitioner also appealed this decision to the full Board, which affirmed the decision on April 8, 2003. Second Lodgment, Exh. 9 at 13-17, 55-58.

On December 5, 2002, petitioner had his fourth parole suitability hearing before a Board panel, which found petitioner suitable for parole. Lodgment, Exh. 2 at 43. In reaching this conclusion, the Board stated:

Our responsibility is to establish whether or not you're suitable for parole based upon whether you're going to be a threat to public safety. Okay. Now we don't believe you are going to be a threat to public safety. And once again, although the crime is never going to change, you put yourself 13-14 years behind that, and we have found you suitable for parole today. The Panel has reviewed all the information received from the public, has relied on the following circumstances in concluding that the prisoner is suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The inmate has no juvenile record. He has a stable social history as exhibited by reasonable stable relationships with others[.] [W]hile in prison [he] has enhanced his ability to function within the law upon release through participation in educational programs, receiving his GED and an AA, self-help and therapy, vocational programs [and] institutional job assignments. He's been involved in the yard crew. He's also been involved in the Fatherhood and Beyond program, entrepreneur and development classes, [and] Impact workshop. His—[h]e lacks a significant criminal history of violent crime. In fact, his criminal history is quite minor in the first place, dealing as an adult, an arrest for petty theft, which was a shoplift back in 1987. So he lacks .... a major crime or violent crime, and has a very insignificant arrest [for] shoplifting. Because of maturation, growth, greater understanding, and advanced age, he's reduced his possibility of recidivism. He has realistic parole plans, which include job offers, family support, and places to live, both in his country of origin, Guatemala, and in the Los Angeles area. He has maintained close family ties while in prison by way of letters, visits, and phone calls, has maintained positive institutional behavior, which indicates ... a significant and proven self-control. Not a single 115 during his incarceration. He has received three 128(a)s, the last one being in 1999, others in 1991[and] 1990. He does show signs of remorse, indicates that he understands the nature and magnitude of the offense and accepts responsibility for the criminal behavior. He has a desire to change toward good citizenship. Psychological evaluation was dated 10/14/99 by Steven Terrini .... is in favor and support [of] parole, in that the doctor states,

"If released to the community, his violence potential is estimated to be no more than the average citizen in the community. In consideration of several factors, including his lack of any CDC 115 violations, and his relative lack of a criminal history and lack of violen[t] criminal history, his violence potential within a controlled setting is estimated to be considerably below average relative to the ... Level II inmate population."

It...