In re MIGUEL PEREZ on Habeas Corpus

Petition summarily denied by order

07/05/2012

Final
The petition for writ of habeas corpus has been read and considered by Justices McIntyre, O'Rourke and Irion. In 1988 petitioner and another member of his gang participated in a murder. In 1989 he was convicted of first degree murder with use of a firearm. The court sentenced him to a prison term of 27 years to life. At his initial parole hearing on January 10, 2011, the Board of Parole Hearings (the Board) denied a parole date for five years. Petitioner contends the Board did not have evidence showing he is currently dangerous, and the fact that he had only recently gained insight into the crime and made progress in substance abuse treatment programming does not show he is unsuitable for parole. He argues he had only one recent rule violation, and the Board did not cite any other reasons for its finding. He also claims amendments to Penal Code section 3041.5 violate prohibitions against ex post facto laws. The petitioner bears the burden of stating a prima facie case entitling him to relief if true. (In re Bower (1985) 38 Cal.3d 865, 872.) "[T]he burden is on the petitioner to establish grounds for his release." (People v. Duvall (1995) 9 Cal.4th 464, 474.) Vague or conclusory allegations do not warrant habeas relief. (Ibid.) Due process requires there be "some evidence" in the record to support a decision by the Board to deny parole. (In re Rosenkrantz (2002) 29 Cal.4th 616, 652; In re Rozzo (2009) 172 Cal.App.4th 40, 49.) "[W]hen a court reviews a decision of the Board . . . , the relevant inquiry is whether some evidence supports the decision of the Board . . . that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings." (In re Lawrence (2008) 44 Cal.4th 1181, 1212.) Some evidence supports the Board's decision that petitioner presents an unreasonable danger to public safety. The Board considered the evidence before it and made an individualized inquiry into petitioner's suitability for parole. The Board based the denial of parole on the fact that petitioner did not admit until the parole hearing that he was the actual shooter. Although he had also made this admission during his probation interview, in the past he had also claimed he was only the second gunman and had fired random shots that injured bystanders. Petitioner's work in substance abuse rehabilitation also was recent, and the Board noted he was making good progress, but needed more time to develop. In addition, the Board pointed out that petitioner had had one recent disciplinary violation which factored into its decision. Some evidence supports the denial of a parole date for five years. As to petitioner's claim the amendment to Penal Code section 3041, subdivision (b)(3), increasing the parole denial interval violates ex post facto principles, we disagree. (See California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 501-502, 507-508; Garner v. Jones (2000) 529 U.S. 244, 254-255.) Even were we to assume that the amendment creates a risk of prolonged incarceration, any such concern is ameliorated by the Board's ability, on its own or at the request of the inmate, to conduct an advance hearing if circumstances have changed such that the inmate is suitable for parole at an earlier time. (Pen. Code, § 3041, subds. (b)(4) & (d)(1).) Justices McIntyre, O'Rourke and Irion deny the petition. Justice McIntyre would have issued an order to show cause as to the ex post facto claim. The petition is denied.

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