Opinion
H036364
12-19-2011
In re FELIX A. SALCIDO, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. B9842667)
Respondent Felix A. Salcido has been incarcerated since 1998 for the 1994 killing of William Justice. In 2009, the Board of Parole Hearings (the Board) concluded he was unsuitable for parole because he would pose an unreasonable risk of danger or a threat to public safety if released from prison. Salcido challenged that decision in the superior court, which granted his petition for a writ of habeas corpus "because of procedural errors only" (i.e., prejudicial violations of Penal Code section 5011, subdivision (b) and California Code of Regulations, title 15, section 2236 ) and ordered the Board to conduct a new hearing.
Subsequent statutory references are to the Penal Code unless otherwise noted.
Subsequent references to "Regs." will be to this title.
The Warden urges us to reverse the superior court's order because (1) "the Board did not base its unsuitability finding on Salcido's refusal to admit guilt" in violation of section 5011, subdivision (b) and section 2236 of the regulations, and (2) some evidence supports the Board's decision. We agree with the Warden's contentions.
Salcido argues that application to his case of the 2008 amendments that Marsy's Law made to section 3041.5 violated the ex post facto clauses of the federal and California Constitutions because he committed his crime before Marsy's Law was enacted. We disagree with his contention. We reverse the superior court's order.
The Marsy's Law amendments to section 3041.5 went into effect on November 5, 2008, after voters approved Proposition 9, otherwise known as the "Victims' Bill of Rights Act of 2008: Marsy's Law." (§ 3041.5; Cal. Const., art. I, § 28.)
I. Background
A. The Murder
In January 1994, sheriff's deputies discovered a man's body by the side of a road in Los Altos Hills. Hoping to find witnesses, they began stopping traffic, and when they stopped Salcido, they saw blood on his steering wheel and clothing. Salcido, who was 21 at the time, identified the dead man as Justice and said he had driven him to East Palo Alto to buy cocaine. He told deputies several men had "jumped" Justice when he got out of the car. Stabbed multiple times, Justice fell back into the car. Salcido was forced at gunpoint to unlock the car's rear doors, and one of the men got in and shot Justice in the back of the head. Salcido drove around looking for a hospital until he realized Justice was already dead. Not wanting to increase his "legal difficulties," he "dumped" the body by the side of the road, then returned to see if Justice was still alive and could be saved.
The forensic evidence contradicted Salcido's version of events, but he was not arrested until December 1998, after police "found traces of gunpowder" on some clothing and "had statements from at least one person that said that I got rid of somebody." A jury convicted him of second degree murder but found an allegation that he had personally used a firearm not true. He was sentenced to 15 years to life in prison.
B. Salcido's Prior History
Salcido was the third of four children raised by "good parents," and his "family life was great." He attended "one of the more prestigious high schools in the area" until he "rebelled and . . . ended up going to a public school." His attendance "wasn't bad," but he "goofed off," got "poor" grades, and dropped out in the 10th grade. He worked at his father's auto repair business for a while after he dropped out, then "at labor jobs," at a body shop, and at a "gentlemen's club." He, his girlfriend, and their three children lived with his parents. Domestic violence eventually ended the relationship, and Salcido moved out. He lived with a new girlfriend and their two children until his arrest in 1998 for Justice's murder. He was 28 years old when he was arrested.
The record does not reveal whether Salcido moved out of his parents' house before or after the murder.
Salcido has "never done drugs in [his] life," but his attorney noted "he did drink sometimes more than he should have." He has no juvenile record.
Salcido was arrested as an adult in 1993 for assault with a deadly weapon and carrying a loaded firearm. His record during the five years between the commitment offense and his eventual arrest for that crime includes arrests in January 1994 for exhibiting a firearm and battery and in October 1994 for inflicting corporal injury on a spouse/cohabitant. He was convicted of inflicting corporal injury on a spouse/cohabitant in 1995. Placed on probation, he failed to comply with domestic violence counseling orders until he was threatened with jail, and his record reflects three probation violations.
Salcido was arrested in March 1998 for fighting and using offensive words in a public place. He was arrested in July 1998 for driving under the influence. In December 1998, he was arrested for Justice's murder. He told the Board, "I never felt like I was going to get away with this forever."
C. Postincarceration Record
Salcido obtained his G.E.D. in prison and enrolled in the Coastline Community College Distance Learning Program. He completed vocational courses in machine shop and auto mechanics and is certified by the National Institute for Automotive Service Excellence as a master mechanic. He has participated in various self-help programs, including creative conflict resolution, anger management, stress management, success from the inside out, and skills for the workplace. He attended Narcotics Anonymous in 2005 and 2006 and continues to participate in Alcoholics Anonymous and a "lifer's group" therapy program. His file contains laudatory chronos describing him as "an excellent student" and a hard worker and commending him for his positive attitude, his "mature, respectful manner of interacting with others," and his "ability to diffuse [sic] tense situations."
Salcido has multiple serious rules violations, including one in 2002 for mutual combat and one in 2008 for manipulation of staff. He has no CDC 128-A counseling chronos.
"In prison argot, [CDC 128-A] 'counseling chronos' document 'minor misconduct,' not discipline. . . . [Citation.]" (In re Smith (2003) 109 Cal.App.4th 489, 505.) A "CDC 115" rules violation report documents serious misconduct that is believed to be a violation of law or otherwise not minor in nature. (In re Gray (2007) 151 Cal.App.4th 379, 389.)
D. October 2009 Parole Consideration Hearing
Salcido first became eligible for parole in 2008, and this was his initial parole consideration hearing. He was 37 years old. As was his right, he declined to discuss the commitment offense (§ 5011, subd. (b).) It was noted for the record that he told the Board in 2007 that he "agree[d] with the [probation officer's] version of the crime," felt "he was treated fairly by the court system," and accepted responsibility "for the mistakes that place[d] him in prison."
The statement of facts from the probation report was read into the record: "On January 18, 1994 . . . sheriff's deputies . . . discovered the body of William Herald Justice lying by the side of the road. [D]eputies . . . stopped the defendant. [The] inmate was driving a vehicle in which there was blood on the steering wheel as well as blood on his clothing. After wa[i]ving his Miranda rights[,] the inmate told officers that the body was that of . . . a friend of his. He further admitted that he had dumped the body . . . after the victim had been murdered in East Palo Alto during an illegal drug purchase. While making the purchase[,] . . . Justice was robbed and stabbed numerous times and then shot at the back of the head. The inmate said he did not know who had committed the offense and could not identify them. He said after the victim was stabbed and shot he attempted to take him to the hospital . . . but realized that he was dead. The inmate stated he was presently having legal difficulties and did [not] want to create more trouble for himself and therefore dumped the body by the side of the road. He subsequently returned to the area to see if the victim was still alive and could be treated for his injuries. . . . A search of the vehicle revealed cartridge casings identified as manufactured . . . for a 9-millimeter Berretta [sic] Ruger. Marks made by the firing pin were consistent with marks left by a Beretta pistol. A friend of the inmate . . . had purchased a Beretta model 9-millimeter automatic pistol in 1993 . . . [a]pproximately nine months before the murder and stated that it was stolen . . . . He . . . had seen a Beretta at the inmate's residence within weeks of the murder. Another witness . . . had seen a 9 millimeter Beretta at the inmate's home on a shelf in the inmate's bedroom two weeks before the murder."
Salcido read his letter of apology into the record: " 'To the family and friends of Mr. Justice, I offer my sincere condolences . . . . I apologize for my actions and omissions that are responsible for the senseless crime. I am deeply ashamed to have caused you so much pain.' "
The Board reviewed Salcido's social history, questioned him extensively about his criminal activities before and during the five years after the murder, and discussed his postincarceration record and parole plans.
Noting that it had been 15 years since the murder, "so obviously you've had some time to think about this crime," the Board asked Salcido if he had "any idea" why he was "involved in this, why [he] committed" the crime. "It was a time in my life when I was morally bankrupt," Salcido responded. He was working at what he called "a gentlemen's club but r[e]ally it was a strip club." He made "decent money," and it was "a legitimate income," which he supplemented by procuring drugs and prostitutes for people. "[I]n that nightlife lifestyle," he "hung out with people for profit." He "got caught up in a world that has no moral values." Pressed to explain why he got caught up in that lifestyle, he said he "didn't have a real trade" or a high school diploma, and "[i]t was an opportunity, you know." "I supplemented my income . . . ."
The Board found Salcido unsuitable for parole and issued a five-year denial. Articulating its reasons, the Board first noted that the offense was especially heinous: the victim was stabbed six times in the back and shot execution style, and he was still alive when he was removed from the car. There was no known motive for the crime, and it was difficult to gauge Salcido's level of responsibility. His conduct "before, during, and after the crime" also weighed against suitability; he admittedly never thought about turning himself in but instead continued to participate in crime for five years after the murder. He had been disciplined for violent conduct in prison, moreover, and his CDC 115 for "mutual combat" in 2002, which was "not that long ago," evidenced "the same continuing [criminal] behavior that you had after the commitment offense when you were out in free society."
Salcido's statement at the hearing that he had tried to be a law-abiding citizen after the crime called his credibility into question, the Board told him, since the record "clearly indicate[d] that you were not." He had "numerous contacts with law enforcement," and his choice of employment "was basically pimping and providing narcotics for easy money." His conflicting statements about his past gun ownership and his "evasive" answers to questions about his domestic violence offenses and probation violations raised additional credibility issues. "[I]f you can't be honest with the Panel and forthright," the Board told him, "we cannot say that you would be safe to be released out into society today."
"[T]he most significant factor" weighing against suitability, however, was Salcido's "past and present mental attitude towards the crime." Asked what he did during the five years after the murder, he "never once mentioned the commitment offense or the victim," which suggested he had not thought about either during that time. It also indicated that, while he appeared to be developing "some remorse," he was "a long ways from getting there." "We need to know for sure that you have an understanding of what occurred on that day[,] . . . what brought you to that point then, so that if . . . circumstances close to that arose again . . . you would know and be able to check yourself. That's what insight is about. You were not able to articulate any factors in terms of how you got to that point in your life. When asked[,] . . . you said . . . you were morally bankrupt. . . . Well, if you don't know why you got to that point[,] we don't know if you were released that you wouldn't get to that point again and not even know it because you're totally unaware. You used words like I was selfish, I was irresponsible, and I was morally bankrupt, but why were you that way? What made you that way? If you don't know the steps that [led] up to your getting involved and committing this murder then there's no guarantee that you would know those same factors today that would put you in the same type of situation." It had "only been five years" since he started self-help, the Board said—"not much time when you yourself admit that you were morally bankrupt."
II. Superior Court Proceedings
Salcido challenged the Board's decision in the superior court, which granted his habeas corpus petition and ordered the Board to conduct a new hearing. The court faulted the Board for violating section 5011, subdivision (b) by "requiring a showing of 'insight and remorse' which could only be made if [Salcido] relinquished his right not to admit guilt or discuss the crime." "[T]he error cannot be deemed harmless," the court stated, "because the Board also violated the Lawrence[]'nexus' rule more generally" by, in the court's view, stating that " '[t]he finding of unsuitability is based on weighing the considerations provided in the California Code of Regulations, Title 15,' " and that " '[t]he first consideration' having 'weight against suitability is the commitment offense itself.' " Those statements made it "evident," the court wrote, that "the Board proceeded pursuant to the now disapproved Dannenberg[] formula which allowed them to deny parole based on 'weight' assigned to Title 15 regulations -- not based on the required nexus between the static factors and the inmate's present dangerousness."
In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence).
In re Dannenberg (2005) 34 Cal.4th 1061.
The Warden filed a timely notice of appeal and petitioned for a writ of supersedeas. We granted the petition and stayed the superior court's order pending resolution of the appeal.
III. Discussion
A. Standard of Review
Our standard of review is well established. "[T]he judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law, but . . . in conducting such a review, the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation. If the decision's consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner's petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law." (In re Rosenkrantz (2002) 29 Cal.4th 616, 658 (Rosenkrantz).)
The general standard for a parole unsuitability decision is that "a life prisoner shall be found unsuitable for and denied parole if in the judgment of the [Board] the prisoner will pose an unreasonable risk of danger to society if released from prison." (Regs., § 2402, subd. (a).)
"[C]ircumstances tending to establish unsuitability for parole are that the prisoner (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) previously has sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (Cal. Code Regs., tit. 15, § 2402, subd. (c).)" (Rosenkrantz, supra, 29 Cal.4th at pp. 653-654, fn. omitted.) An offense is considered "especially heinous, atrocious, or cruel" if it "was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering" or "[t]he motive for the crime is inexplicable or very trivial in relation to the offense." (Regs., § 2402, subd. (c)(1).)
"[C]ircumstances tending to establish suitability for parole are that the prisoner: (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his life, especially if the stress has built over a long period of time; (5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use upon release; and (9) has engaged in institutional activities that indicate an enhanced ability to function within the law upon release. (Cal. Code Regs., tit. 15, § 2402, subd. (d).)" (Rosenkrantz, supra, 29 Cal.4th at p. 654.)
"[T]he underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when there is strong evidence of rehabilitation and no other evidence of current dangerousness." (Lawrence, supra, 44 Cal.4th at p. 1211.) The nature of the commitment offense "does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or postincarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety." (Id. at p. 1214.) "[W]hen there is affirmative evidence, based upon the prisoner's subsequent behavior and current mental state, that the prisoner, if released, would not currently be dangerous, his or her past offense may no longer realistically constitute a reliable or accurate indicator of the prisoner's current dangerousness." (Id. at p. 1219.) Where, on the other hand, there is a history of domestic abuse and, "despite years of therapy and rehabilitative 'programming,' " the prisoner has been demonstrably "unable to gain insight into his antisocial behavior," the Board may properly conclude that the prisoner "remains dangerous and is unsuitable for parole." (In re Shaputis (2008) 44 Cal.4th 1241, 1259-1260 (Shaputis).)
B. Section 5011
The superior court ruled that the Board's parole denial violated section 5011, subdivision (b) and section 2236 of the regulations because it "was based on a purported lack of insight, remorse, and acceptance of responsibility which in turn was based on [Salcido's] assertion of his right to not admit the crime." Finding the violation of section 5011 prejudicial, the court reversed the Board's decision "for procedural errors only," noting that it was "expressing no opinion on the merits of [Salcido's] parole suitability." The Warden argues that the court "drew improper conclusions from the record" to reach its decision. We agree.
That section provides that "[t]he Board of Prison Terms shall not require, when setting parole dates, an admission of guilt to any crime for which an inmate was committed." (§ 5011, subd. (b).)
Section 2236 of the regulations provides that "[t]he facts of the crime shall be discussed with the prisoner to assist in determining the extent of personal culpability. The [B]oard shall not require an admission of guilt to any crime for which the prisoner was committed. A prisoner may refuse to discuss the facts of the crime[,] in which instance a decision shall be made based on the other information available and the refusal shall not be held against the prisoner." (Regs., § 2236.)
We reject Salcido's contention that the record reflects "an improper insistence that [he] fully admit his guilt for the charged crime." There was no need to "insist" that he admit guilt, because he had for all intents and purposes already done so. He told the Board in 2007 that he felt he had been "treated fairly by the court system"—a statement no reasonable person unjustly convicted of second degree murder and sentenced to life in prison would have made. When that statement was read into the record at his 2009 hearing, Salcido did not deny it but instead asked to read his letter of apology. He had a second opportunity to challenge the statement when it was repeated later during the hearing. He did not do so.
Salcido's counsel underscored his de facto admission of guilt, telling the Board that this was not a case where the inmate denied committing the offense. In her closing statement, counsel argued that under section 5011, "[y]ou can deny that you committed the offense. Mr. Salcido has not done that. . . ." (Italics added.) Earlier, Salcido had been asked whether he wanted "to clarify for the record whether or not the victim was already dead." "Well," the commissioner continued, "you said you agreed with the probation officer's report." When Salcido replied, "I believed he was dead at the time I put him on the side of the road," his counsel interjected, "I believe the probation officer's report actually says . . . the victim was killed at the place where the body was found . . . . [¶] . . . [T]he probation report is the opposite of what the psychological evaluation[] said and that's what Mr. Salcido agrees to." (Italics added.) When the district attorney asked Salcido if he acknowledged taking Justice away from his family, counsel again interrupted, stating that her client "says he's taking responsibility and he agrees with the probation officer's report, which contains various statements, various versions, and various circumstances of the offense." "I'm responsible for this," Salcido told the Board. "I've placed myself in prison. It's what I've done that has got me here."
At the beginning of the hearing, defendant's counsel pointed out numerous factual errors in the psychological report and argued that it would be "simply a violation of due process to proceed" with it. "If the Board is going to go ahead with a hearing today[,] then I request they not consider this evaluation," she argued. The Board took a break to consider her request, sustained the objection, and ruled that it "w[ould] not be using the psychological evaluation at today's hearing."
Salcido's reliance on In re McDonald (2010) 189 Cal.App.4th 1008 (McDonald) is misplaced. In McDonald, unlike here, the inmate denied any involvement in planning or carrying out his friend's murder, "maintaining] his version of events despite plea offers from the district attorney and two prior reversals by the Governor of the Board's grants of parole." (Id. at pp. 1016-1017.) The Board granted McDonald parole a third time, and the Governor again reversed, based on only two factors: the circumstances of the commitment offense and McDonald's lack of insight into his crime. (Id. at p. 1023.) The first reason was insufficient, standing alone (Lawrence, supra, 44 Cal.4th at p. 1214), and the second was expressly based on the inmate's denial of involvement in the crime— evidence on which the Governor could not legally rely. (McDonald, at pp. 1018 [" ' "I do not accept Mr. McDonald's claim of limited responsibility. And his lack of insight . . . ." ' "], 1023; § 5011, subd. (b).) Here, unlike in McDonald, Salcido has not denied culpability for the murder. More importantly, the Board's lack of insight finding was not expressly or even implicitly based on Salcido's decision not to discuss the details of the crime. In McDonald, the Governor "suggest[ed] no other basis on which to find a lack of insight." (McDonald, at p. 1023.) Here, by contrast, there was another basis: Salcido's inability to explain how he "got to that point in [his] life."
Salcido's reliance on In re Jackson (2011) 193 Cal.App.4th 1376 is similarly misplaced. Jackson denied involvement in his former girlfriend's murder and told the psychologist who evaluated him that he did not believe that his sentence was fair. (Id. at p. 1380.) He said he took responsibility, however, " „ "because I put all of us in the situation. I didn't have the maturity to walk away from infidelity." ' " (Id. at p. 1381, fn. 2.) At his eighth parole suitability hearing, Jackson exercised his right not to discuss the crime. The Board denied parole based on his lack of insight and remorse and failure to take responsibility for his crime. (Id. at p. 1391.) Granting Jackson's petition for a writ of habeas corpus, the Court of Appeal explained that the Board's denial violated section 5011 because "the only basis for the Board to conclude that Jackson lacked insight, failed to take responsibility, and lacked remorse was his refusal to admit guilt for the commitment offense." (Ibid., italics added.) In re Jackson is distinguishable. Here, unlike in that case, Salcido's decision not to discuss the details of his crime was not the only basis for the Board's lack of insight finding.
Asked if he had "any idea" why he committed the crime, Salcido said he was "morally bankrupt." Asked if he had any idea what effect his crime had had, he replied that his actions were "selfish" and "irresponsible." His inability to demonstrate a deeper insight into the causative factors of his crime is what the Board relied on. "You used words like I was selfish, I was irresponsible, and I was morally bankrupt," the Board told him, "but why were you that way? What made you that way?" (Italics added.) How can you "guarantee the community," the district attorney asked him, that you will not "go back into that morally bankrupt condition and not reoffend?" These were questions about Salcido's character and background, not about the facts of the crime. These questions probed his insight into the root causes of his criminal actions, and as such, they were highly relevant. (Shaputis, supra, 44 Cal.4th at pp. 1259-1260.) "While it is improper to rely on a prisoner's refusal to address the circumstances of the commitment offense in denying parole, evidence that demonstrates a prisoner's insight, or lack thereof, into the reasons for his commission of the commitment offense is relevant to a determination of the prisoner's suitability for parole. [Citation.]" (In re Rozzo (2009) 172 Cal.App.4th 40, 62, fn. 9, italics added.) The Board's finding that Salcido lacked insight did not violate section 5011.
Salcido asserts that "[t]he Panel's comment that 'we . . . don't know . . . your level of responsibility' " was "plainly an indirect reference to [his] exercise of his protected right to 'refuse to discuss the facts of the crime' at the Board hearing, in violation of the rule requiring that the Board not hold such a refusal against a prisoner." We cannot agree. The Board's mere acknowledgment of Salcido's decision not to discuss the crime does not, without more, demonstrate that it held his decision against him. Here, the Board simply noted that it was "a little difficult to try and ask you questions when you're not discussing the crime. And I'm trying not to put you in that position but I don't understand when you agree with the probation officer's report, so you have culpability regarding Mr. Justice's death." Salcido responded, "Yes," and the commissioner immediately moved on to another line of questioning, asking whether he had "just live[d] life normally" for the next five years. The Board's comment was not a "barely- veiled . . . criticism" of Salcido's decision not to discuss the crime, and it did not violate section 5011. (See In re Lazor (2009) 172 Cal.App.4th 1185, 1202, fn. 13 ["Consideration of whether an inmate accepts responsibility for the commitment offense does not conflict with section 5011, subdivision (b) . . . ."].)
We note that when the district attorney asked Salcido whether he killed Justice, the Board was quick to remind him that Salcido "doesn't have to admit or deny the commitment offense at this hearing and he's chosen not to discuss the commitment offense." When the district attorney persisted, the presiding commissioner told him again, "[H]e has decided not to talk about the commitment offense and that's his right." When the district attorney asked whether it was the Board's position that he could not ask any questions about Salcido's position vis-a-vis the probation report, the presiding commissioner replied, "You can ask him anything you like [but] it's up to him whether or not he wants to answer it." After a few more questions, which Salcido's counsel advised him not to answer, the presiding commissioner told the district attorney, "I think that at this point . . . you should move on." When the district attorney nonetheless persisted, the commissioner told him again, "Again I think you need to move on. He's not going to discuss anything."
C. "Some Evidence"
Finding no violation of section 5011, we next consider the Warden's contention that the superior court erred in granting Salcido's petition because some evidence supports the Board's decision to deny parole.
The Board's conclusion that Salcido would pose an unreasonable risk of danger or a threat to public safety if released from prison was based primarily on findings that he "had no intentions on ever turning [himself] in" but had instead continued his pattern of violent criminal conduct in the five years following the murder, had been unsuccessful on probation, had been disciplined relatively recently in prison for fighting, lacked credibility, and lacked insight into the causative factors of his crime. Some evidence supports these findings.
Salcido's many arrests before and after the murder were well-documented. In addition to arrests for assault with a deadly weapon, brandishing a firearm, challenging to fight in a public place, and resisting arrest, he had been arrested and released once and convicted another time for domestic violence, and his girlfriend told police about two additional incidents that occurred when she was pregnant. Salcido conceded that what she said was "probably true," because the assault he was convicted of "was not the first time that I behaved like that."
Salcido also admitted that he "procured prostitutes for profit" and "introduced people into purchasing drugs with each other." He volunteered that he also "made money at [his] dad's shop without filing [his] taxes." "For every shortcut that was a profit I would weigh the risk," he told the Board, "and the majority of the time . . . , without concern, I broke the law." The Board could reasonably have found, based on Salcido's own statements, that he had established a pattern of criminal behavior in the years preceding his arrest for the murder.
His admissions about breaking the law "without concern" during those years also called his credibility into question, given his assertion earlier during the hearing that the murder "affected me and I changed my lifestyle." His credibility was further called into question when he admitted he owned the loaded gun he had been arrested for brandishing in 1994, because that statement contradicted his prior statement to the probation officer that "the only gun that he ever owned was a hand BB gun." Salcido's credibility was further undermined by his "evasive" answers to the Board's questions about his domestic violence and probation violations. He initially told the Board he "only remember[ed] having one [domestic violence] altercation . . . where the police were involved." When challenged, he said "[m]aybe there's a second one where I have a conviction . . . ." Asked about the two additional incidents when his girlfriend was pregnant, he said, "You know, I don't remember . . . ." Eventually, he admitted that what she said was "probably true." He was equally evasive about his probation violations, "guessing" that he had once been jailed, not for a probation violation, but "because I think one time I turned myself in because I had so many parking tickets or not parking tickets I had driving tickets. I thought I was going to do like a month or something and I was only in jail for like three or four days." Salcido's own statements provided more than a "modicum of evidence" that his credibility could not be counted on. (Rosenkrantz, supra, 29 Cal.4th at p. 677 ["Only a modicum of evidence is required."].)
There was also more than a modicum of evidence that he lacked insight into the causative factors of his crime. Asked what he did during the five years before his arrest for the murder, he described his various jobs and "never once mentioned the commitment offense or the victim," which could reasonably have led the Board to conclude that he had "never thought about" either during those five years. He blamed his criminal behavior on "moral bankruptcy" and the "nightlife lifestyle" that he "got caught up in," but he was unable to explain how he had arrived at that point in his life. When pressed, he could only say he "didn't have a real trade" and lacked a high school diploma. Lacking a trade or a diploma, however, is not the same as being "morally bankrupt," and the Board could reasonably have interpreted his response as evidencing a lack of insight. The Board could reasonably have drawn the same conclusion from Salcido's response when the district attorney asked how he could "guarantee the community that he is not going to go back into that morally bankrupt condition and reoffend." "I'm not that person no more," Salcido replied, stressing his master mechanic qualification and job possibilities. Those skills would help him "be a better citizen," the Board responded, but "in terms of who you are as a person internally it doesn't help you to have mechanic skills."
Salcido was similarly unable to explain why, despite "awesome" parents who "really did try to help" him and "really tried to get [him] tutored," he had remained "indifferent," "goofed off," and dropped out of high school.
The next question is whether Salcido's criminal conduct before, during, and after the murder, his serious rules violations in prison, his questionable credibility, and his lack of insight provided some evidence to support the Board's conclusion that he remained currently dangerous. It did. This is not a case like Lawrence, where the record was replete with evidence of the inmate's rehabilitation and "devoid of any evidence supporting a finding that she continue[d] to pose a threat to public safety. . . ." (Lawrence, supra, 44 Cal.4th at p. 1227.) Here, there was very little evidence of rehabilitation. Although Salcido claimed he "changed his lifestyle" immediately after the murder, he was arrested repeatedly over the next five years and violated probation three times. During his relatively short incarceration, moreover, he was cited for two serious rules violations, one violent. These facts alone are some evidence that he remains currently dangerous. (E.g., Rosenkrantz, supra, 29 Cal.4th at pp. 673-674, 677 [conduct while inmate remained a fugitive "demonstrated the danger of violence that would arise from [his] release"].) Salcido's lack of insight into the causative factors underlying his crime, which was amply supported by his statements at the hearing and by his failure to provide any indication about what he had learned from his participation in self-help programming, provided additional evidence that he remains currently dangerous. (Shaputis, supra, 44 Cal.4th at pp. 1259-1260.) The Board's decision to deny parole was neither arbitrary nor capricious. (Rosenkrantz, supra, 29 Cal.4th at p. 677.)
The Board noted a third CDC 115, for battery, in Salcido's file, but he claimed it had been voided. His file reflected his placement in administrative segregation since he "appear[ed] to be the victim of a slashing assault," but described the circumstances as "unclear at this time." The CDC 115 remained in Salcido's file. "Yes, you may have been the victim," the Board told him, "but it doesn't tell me it was dismissed so you need to get . . . some sort of dispositional documentation in here . . . ." Ultimately, however, the Board decided "we'll just not count the [slashing] 115 that we note is still in the C-File."
D. Marsy's Law
Salcido contends that application to his case of the 2008 amendments to section 3041.5 violated the ex post facto clauses of the federal and California Constitutions because he committed his crime before Marsy's Law was enacted.
The California Supreme Court is currently considering this issue. (In re Vicks (2011) 195 Cal.App.4th 475, review granted July 20, 2011, S194129; In re Russo (2011) 194 Cal.App.4th 144, review granted July 20, 2011, S193197.)
Both the federal and state Constitutions prohibit ex post facto laws. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) The prohibition is based on the principle that "persons have a right to fair warning of that conduct which will give rise to criminal penalties____" (See Marks v. United States (1977) 430 U.S. 188, 191.) Thus, laws that "retroactively alter the definition of crimes or increase the punishment for criminal acts" are unconstitutional. (Collins v. Youngblood (1990) 497 U.S. 37, 43; People v. Alford (2007) 42 Cal.4th 749 (Alford).) However, "[a] change in the law that merely operates to the disadvantage of the defendant or constitutes a burden is not necessarily ex post facto. [Citations.]" (People v. Bailey (2002) 101 Cal.App.4th 238, 243.) California's ex post facto law is analyzed in the same manner as the federal prohibition. (Alford, supra, 42 Cal.4th at p. 755.)
Pre-Marsy's Law versions of section 3041.5 provided for annual parole suitability hearings for inmates who had been denied parole, but gave the Board discretion to defer subsequent hearings for two years (and up to five years for life term inmates convicted of more than one murder) if it was not reasonable to expect parole would be granted before that. (See In re Brown (2002) 97 Cal.App.4th 156, 158 [relating the history of section 3041.5].) The 2008 amendments gave the Board discretion to schedule subsequent suitability hearings 15, 10, seven, five, or three years after a parole denial. (§ 3041.5, subd. (b)(2).) This means that instead of issuing one- to five-year denials, as in the past, the Board now issues three- to 15-year denials. Salcido argues that applying the new law to him is unconstitutional, because it "create[s] a significant risk of increased punishment." We disagree.
In pertinent part, amended section 3041.5 provides that "(b) . . . [¶] (2) Within 20 days following any meeting where a parole date has not been set, the board shall send the prisoner a written statement setting forth the reason or reasons for refusal to set a parole date, and suggest activities in which he or she might participate that will benefit him or her while he or she is incarcerated. [¶] (3) The board shall schedule the next hearing, after considering the views and interests of the victim, as follows: [¶] (A) Fifteen years after any hearing at which parole is denied, unless the board finds by clear and convincing evidence that the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim's safety does not require a more lengthy period of incarceration for the prisoner than 10 additional years. [¶] (B) Ten years after any hearing at which parole is denied, unless the board finds by clear and convincing evidence that the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim's safety does not require a more lengthy period of incarceration for the prisoner than seven additional years. [¶] (C) Three years, five years, or seven years after any hearing at which parole is denied, because the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim's safety requires a more lengthy period of incarceration for the prisoner, but does not require a more lengthy period of incarceration for the prisoner than seven additional years. [¶] (4) The board may in its discretion, after considering the views and interests of the victim, advance a hearing set pursuant to paragraph (3) to an earlier date, when a change in circumstances or new information establishes a reasonable likelihood that consideration of the public and victim's safety does not require the additional period of incarceration of the prisoner provided in paragraph (3). [¶] . . . [¶] (d)(1) An inmate may request that the board exercise its discretion to advance a hearing set pursuant to paragraph (3) of subdivision (b) to an earlier date, by submitting a written request to the board, with notice, upon request, and a copy to the victim which shall set forth the change in circumstances or new information that establishes a reasonable likelihood that consideration of the public safety does not require the additional period of incarceration of the inmate. [¶] (2) The board shall have sole jurisdiction, after considering the views and interests of the victim to determine whether to grant or deny a written request made pursuant to paragraph (1), and its decision shall be subject to review by a court or magistrate only for a manifest abuse of discretion by the board. The board shall have the power to summarily deny a request that does not comply with the provisions of this subdivision or that does not set forth a change in circumstances or new information as required in paragraph (1) that in the judgment of the board is sufficient to justify the action described in paragraph (4) of subdivision (b). [¶] (3) An inmate may make only one written request as provided in paragraph (1) during each three-year period. Following either a summary denial of a request made pursuant to paragraph (1), or the decision of the board after a hearing described in subdivision (a) to not set a parole date, the inmate shall not be entitled to submit another request for a hearing pursuant to subdivision (a) until a three-year period of time has elapsed from the summary denial or decision of the board." (§ 3041.5, subd. (b).)
The United States and California Supreme Courts have previously held that statutes amending procedures to decrease the frequency of parole suitability hearings do not violate the ex post facto clause when applied to inmates convicted preamendment. (California Dept. of Corrections v. Morales (1995) 514 U.S. 499 (Morales); In re Jackson (1985) 39 Cal.3d 464 (Jackson).)
In Morales, the United States Supreme Court rejected an ex post facto challenge to the constitutionality of a 1981 amendment to section 3041.5. (Morales, supra, 514 U.S. at p. 514.) The 1981 amendment authorized the Board to defer parole suitability hearings for up to three years for prisoners convicted of more than one murder if the Board found it was not reasonable to expect parole to be granted before that and stated the bases for its findings. (Ibid.) The court reasoned that there was no ex post facto violation because the amendment did not increase the statutory punishment for the defendant's crime of second degree murder, which was 15 years to life both before and after the amendment. (Morales, at p. 507.) The amendment left the defendant's indeterminate sentence and the substantive formula for securing any reductions to that sentence untouched. (Ibid.) It did not affect the setting of his minimum eligible parole date, nor did it change the standards for determining his suitability for parole. (Morales, at p. 507.) It simply " 'alter[ed] the method to be followed' in fixing a parole release date under identical substantive standards." (Morales, at p. 508.)
Rejecting the defendant's view that the ex post facto clause "forbids any legislative change that has any conceivable risk of affecting a prisoner's punishment," the Morales court held that the relevant inquiry was whether the amendment "produce[d] a sufficient risk of increasing the measure of punishment attached to the covered crimes" to fall within the constitutional prohibition. (Morales, supra, 514 U.S. at pp. 508-509, italics added.) The 1981 amendment did not do so. It applied only to prisoners "for whom the likelihood of release on parole [was] quite remote" (id. at p. 510) and only if the Board concluded, after a hearing, that " 'it [was] not reasonable to expect that parole would be granted . . . during the following years.' [Citation.]" (Morales, at p. 511.) Moreover, the Board "retain[ed] the authority to tailor the frequency of subsequent suitability hearings to the particular circumstances of the individual prisoner" (id. at p. 511), and inmates given two- or three-year denials were not precluded from asking, based on changed circumstances, for earlier hearings. (Morales, at pp. 513-514.) Thus, the amendment created "only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes . . . ." (Id. at pp. 509, 512-513.)
In Jackson, the California Supreme Court rejected an ex post facto challenge to the constitutionality of a 1982 amendment to section 3041.5 that authorized the Board to schedule biennial rather than annual parole suitability hearings. (Jackson, supra, 39 Cal.3d at p. 472.) The court held that the amendment effected only "a procedural change outside the purview of the ex post facto clause." (Ibid.) The amendment "did not alter the criteria by which parole suitability [was] determined . . . [n]or did it change the criteria governing an inmate's release on parole." (Jackson, at p. 473.) "Most important," the court emphasized, "the amendment did not entirely deprive an inmate of the right to a parole suitability hearing." (Ibid.) It simply "changed only the frequency with which the Board must give an inmate the opportunity to demonstrate parole suitability." (Jackson, at p. 473.) That there was a "hypothetical" chance that an inmate's suitability for parole might "drastically improve during the period of the postponement" did not undermine the Jackson court's conclusion that it was unlikely, in general, that a longer postponement would affect an inmate's right to an early parole release, since it was "conceivable that the Board could advance the suitability hearing and order immediate release." (Jackson, at p. 475.)
Jackson and Morales are controlling here. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.) The 2008 amendments to section 3041.5, like the amendment at issue in Morales, did not increase the statutory punishment for defendant's crime. (Morales, supra, 514 U.S. at p. 507.) The amendments left his indeterminate sentence and the substantive formula for securing credits untouched, did not affect his minimum eligible parole date, did not change the standards for determining his suitability for parole, and did not "entirely deprive [him] of the right to a parole suitability hearing." (Jackson, supra, 39 Cal.3d at p. 473; Morales, at p. 507.) Marsy's Law simply " 'alter[ed] the method to be followed' in fixing a parole release date under identical substantive standards." (Morales, at p. 508.) Such procedural changes are outside the purview of the ex post facto clause. (Jackson, at p. 472.)
Attempting to distinguish Morales, Salcido argues that "Marsy's Law has tripled the maximum denial period for those convicted of murder, compared to the mere two-year increase at issue in Morales" That argument ignores the United States Supreme Court's holding in Garner v. Jones (2000) 529 U.S. 244 (Garner) that application of an administrative regulation increasing the parole denial period from three years to eight years (a five-year increase—two years longer than the increase Salcido complains of here) did not violate the ex post facto clause of the federal Constitution where the regulation at issue vested the parole board with discretion and also permitted expedited reviews in the event of a change in circumstances " 'or where the [b]oard receive[d] new information that would warrant a sooner review.' " (Garner, at p. 254.) The Marsy's Law amendments to section 3041.5 include similar qualifications. (§ 3041.5, subds. (b)(4) & (d)(3).)
Attempting to distinguish Garner, Salcido argues that section 3041.5, subdivision (d)(3) prohibits prisoners from petitioning for an advanced hearing until three years after any denial, thus "prevent[ing him] and others like him from ever again receiving a hearing one or two years after the Board finds him unsuitable for parole." (Italics added.) Stated another way, he contends that section 3041.5, subdivision (d)(3) imposes "a three-year blackout period" after an inmate is denied parole after any suitability hearing, whether regularly scheduled or advanced at the inmate's written request. We do not read section 3041.5, subdivision (d)(3) so expansively.
We think section 3041.5, subdivision (d)(3) means exactly what it says. There are three possible outcomes when an inmate requests an advanced hearing. One is positive— granting of the request and a decision, after the advanced hearing, to set a parole date. The other two are negative—"either a summary denial of" the request for an advanced hearing or granting of the request and "the decision of the [B]oard after a[n advanced] hearing . . . to not set a parole date." (§ 3041.5, subd. (d)(3), italics added.) An inmate who obtains "either" of the two negative outcomes "shall not be entitled to submit another request . . . until a three-year period of time has elapsed from the summary denial or decision of the [B]oard." (§ 3041.5, subd. (d)(3), italics added.) Section 3041.5, subdivision (d) does not impose a three-year blackout period when an inmate is denied parole after a regularly scheduled suitability hearing, but only when he or she is denied parole after a hearing advanced at his or her written request.
Further attempting to distinguish Garner, Salcido argues that "the Board does not „retain[] the authority to tailor the frequency of subsequent suitability hearings to the particular circumstances of the individual prisoner,' " and "Marsy's Law deprives the Board of any individualized discretion when setting minimum denial periods." Those arguments ignore section 3041.5, subdivision (b)(4), which gives the Board discretion, sua sponte, to "advance a hearing . . . to an earlier date, when a change in circumstances or new information establishes a reasonable likelihood that consideration of the public and victim's safety does not require the additional period of incarceration of the prisoner provided in paragraph (3)." (§ 3041.5, subd. (b)(4).) This procedural safeguard is similar to those the California Supreme Court held "provide[d] an inmate with a meaningful opportunity to argue for a finding of suitability . . . ," reducing the likelihood that a longer postponement would affect his or her right to an early parole release, since it was "conceivable that the Board could advance the suitability hearing and order immediate release." (Jackson, supra, 39 Cal.3d at pp. 473, 475.)
We reject Salcido's ex post facto claim.
IV. Disposition
The superior court's November 16, 2010 order is reversed, and the court is directed to enter a new order denying Salcido's habeas corpus petition.
Mihara, Acting P. J.
WE CONCUR:
Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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