IN RE: HAROLD ZEIGLER

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Court of Appeal, Second District, California.

IN RE: HAROLD ZEIGLER, on Habeas Corpus.

B225907

Decided: February 24, 2011

Edmund G. Brown, Jr. and Kamala Harris, Attorneys General, Julie L. Garland, Assistant Attorney General, Julie A. Malone and Charles Chung, Deputy Attorneys General, for Appellant. Marilee Marshall & Associates and Marilee Marshall, for Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

The Warden of the Correctional Training Facility in Soledad, California appeals from the trial court's order granting the petition for writ of habeas corpus of defendant Harold Zeigler.   We vacate the trial court's order granting the writ and we reinstate the Governor's decision denying parole to defendant Zeigler.

FACTS AND PROCEEDINGS

In September 1987, William Abeytia stopped at a gas station to use its pay phone.   Abeytia left the keys to his van in the ignition.   Defendant Harold Zeigler climbed into the van and started to drive away.   Abeytia grabbed and held onto the van's passenger door to try to stop defendant.   Defendant accelerated the van to 60 miles per hour and swerved toward the curb.   Abeytia struck a street pole and fell to the ground, sustaining fatal injuries.   Defendant thereafter pleaded guilty to Abeytia's second-degree murder and received a state prison sentence of 15 years to life.

In 2008, the Board of Parole Hearings denied parole to defendant.   Defendant filed in Los Angeles Superior Court a petition for writ of habeas corpus.   The superior court found the habeas record did not contain “some evidence” to support the board's conclusion that defendant posed a current threat to public safety.   The court therefore vacated the denial of parole and directed the board to conduct a new parole hearing.   In June 2009 after a new hearing, the board set a date for defendant's release on parole.

In November 2009, the Governor exercised his legal authority to reverse the board's decision to grant parole.   In a written statement explaining his reversal, the Governor stated defendant's murder of Abeytia was “especially atrocious” because defendant's desire to steal Abeytia's van was an “exceedingly trivial” motive for the “magnitude of the crime he committed.”   The Governor also found defendant killed Abeytia “in a manner which demonstrates an exceptionally callous disregard for human suffering” because defendant could have slowed down when he saw Abeytia hanging onto the van's door, but instead he swerved at 60 miles per hour toward a street pole.   The Governor also noted that prison authorities had disciplined defendant in 2001 for unauthorized possession of prescribed morphine and in 2002 for unauthorized possession of tobacco.   The Governor expressed concern that defendant's possession of such banned substances raised doubts about defendant's ability to follow the law and his parole conditions if he were released from prison.   Finally, the Governor found defendant had “failed to obtain insight into his violent behavior.”   From defendant's lack of insight, the Governor concluded defendant continued to pose an unreasonable risk of danger to society.  (In re Lawrence (2008) 44 Cal.4th 1181, 1228 [defendant's lack of insight joined with aggravated circumstances of crime can be evidence of defendant's threat to public safety].)

Defendant filed in the trial court a petition for habeas corpus challenging the Governor's reversal of the board.   Defendant asserted the record did not contain “some evidence” to support the Governor's finding that he continued to pose an unreasonable risk to society.   The trial court agreed.   The court found the Governor wrongly concluded defendant's murder of Abeytia was especially heinous, atrocious, or cruel.   The court deemed defendant's crime to be no more egregious than typical for murder, noting that defendant did not torture or inflict prolonged pain on Abeytia.   And although the court agreed with the Governor that defendant's motive for stealing the van was trivial compared to his offense, the court characterized the motive as an immutable feature of defendant's crime that over time lost its value for predicting defendant's future dangerousness.   Additionally, the court found defendant had accepted full responsibility for Abeytia's murder, and concluded defendant's infractions of prison rules in 2001 and 2002 involving unauthorized possession of morphine and tobacco were too far in the past and inconsequential to suggest future dangerousness.   Accordingly, the court ordered reinstatement of defendant's parole date.   The Warden filed a notice of appeal.   The Warden also filed a petition for writ of supersedeas pending the appeal.   We granted the writ staying defendant's release, and set the matter for argument.

STANDARD OF REVIEW

When a trial court rests its findings solely on documentary evidence in the parole record, we independently review the trial court's ruling.  (In re Rosenkrantz (2002) 29 Cal.4th 616, 677.)   The Governor's decision to reverse the board's grant of parole must consider all relevant statutory factors in assessing a defendant's current risk of danger to society.  (In re Shaputis (2008) 44 Cal.4th 1241, 1258;  In re Lawrence, supra, 44 Cal.4th at p. 1219.)   We review the record to determine if it contains “some evidence” that supports the Governor's conclusion that the defendant poses an unreasonable risk that justifies denying parole;  we affirm the Governor's decision if such evidence exists.  (In re Smith (2009) 171 Cal.App.4th 1631, 1637;  In re Lawrence at p. 1212;  In re Shaputis at p. 1258.)

DISCUSSION

Defendant contends the parole record contained no evidence from which the Governor could conclude he posed an unreasonable threat to public safety if he were released from prison.   We disagree.

The Governor acknowledged defendant's commendable progress toward rehabilitation.   Defendant completed literacy courses in prison, earned a high school diploma, and acquired marketable job skills as a sewing machine operator and mechanic.   His prison work supervisors and other correctional professionals commented favorably on his behavior.   Although incarcerated, he maintained solid and supportive relationships with family and friends outside prison.   Additionally, he had participated in many educational and self-improvement programs targeting substance abuse, anger management, healthy living, and life skills.

Despite defendant's praiseworthy progress toward rehabilitation, the Governor identified troubling elements in defendant's record that led the Governor to conclude defendant continued to pose an unreasonable risk to the community.   The Governor deemed Abeytia's killing to be “especially atrocious” because defendant's desire to steal Abeytia's van was an “exceedingly trivial” motive for the “magnitude of the crime he committed.”   Defendant, the Governor concluded, “carried out [the crime] in a manner which demonstrates an exceptionally callous disregard for human suffering” because defendant accelerated, rather than slowed down, when he saw Abeytia hanging onto the van's door.  (See In re Lawrence, supra, 44 Cal.4th at p. 1228 [aggravated circumstances of crime can be evidence of risk when coupled with lack of insight].)

The Governor also found that defendant minimized his culpability in Abeytia's murder.  (In re Lawrence, supra, 44 Cal.4th at pp. 1219-1220 [incomplete acceptance of responsibility probative of future dangerousness].)   Defendant, for example, repeatedly changed what he told the parole board about his acts in the moments leading to Abeytia's death.   In 1996, defendant said Abeytia hit a pole when defendant swerved the van to avoid an oncoming car.   In 2002, defendant claimed Abeytia hit the pole as the van dropped from the curb after defendant drove onto it as he was exiting the gas station driveway.   In 2005, defendant told the board Abeytia hit the pole because defendant lost control of the van and ran onto the curb.   And in 2008, he told the board he over-steered the van toward the curb when he saw Abeytia hanging onto the van “and that's when [Abeytia] hit the pole.”   From defendant's varying accounts of how he caused Abeytia's death, the Governor concluded defendant “continues to minimize his actions [which] indicates that he still has not gained sufficient insight into or accepted full responsibility for” his crime.  (In re Shaputis, supra, 44 Cal.4th at p. 1260 [defendant's lack of insight can be some evidence of unsuitability for parole];  In re Smith, supra, 171 Cal.App.4th at p. 1639.)   The Governor explained:

“His lack of insight renders the murder still relevant to my determination that Zeigler continues to pose a current, unreasonable risk to public safety because Zeigler cannot ensure that he will not commit similar crimes in the future if he does not completely understand and accept full responsibility for his offense.”

Defendant's violation of prison rules was also some evidence that the Governor cited to support his decision denying parole to defendant.  (In re Reed (2009) 171 Cal.App.4th 1071, 1085 [inability to follow prison rules evidence defendant may violate law outside prison].)   In 1993, defendant schemed to get coffee from prison coffers without authorization, which he then bartered for cigarettes with other prisoners.   In 2001, he retained without authorization morphine prescribed to him and in 2002 possessed tobacco without authorization.   The Governor found especially troubling that defendant's violation of prison rules involved chemical substances because defendant was under the influence of alcohol, PCP, and cocaine when he killed Abeytia.   The Governor concluded that defendant's violation of prison rules raised concerns about defendant's ability to follow the law and parole conditions if he were released from prison.  (Id. at p. 1081 [ability to observe non-penal conditions of parole a factor in evaluating parole suitability].)

Defendant rejects the Governor's findings as unsupported by evidence that defendant continues to pose an unreasonable risk to society.   Defendant contends, for example, that no evidence supports the Governor's finding that he has not accepted full responsibility for Abeytia's death.   To the contrary, according to defendant, he acknowledged his responsibility when he pleaded guilty to Abeytia's second-degree murder.   A guilty plea is not always, however, strong evidence of one's full acceptance of responsibility.  (See In re Taplett (2010) 188 Cal.App.4th 440, 450 [guilty plea not inconsistent with lack of insight].)

Defendant also contends his violations of prison rules do not prove he is a current threat to society.   He asserts that his possession of morphine and tobacco was too far in the past to be probative of future dangerousness, especially because his possession did not involve violence.   We acknowledge that even the most recent of these events took place a decade ago.   The prison misconduct therefore comes close to being legally remote - and may be too stale to consider at the next series of parole hearings - but in the present setting we cannot say the Governor was not entitled to consider these events.   Defendant's violations of prison rules relating to drugs and other substances are “some evidence” of defendant's current dangerousness given defendant was under the influence of alcohol and controlled substances when he killed Abeytia.

Defendant also contends that his acts causing Abeytia's death were not sufficiently egregious to have predictive power more than 20 years later about his future dangerousness.   Given defendant's opportunities to avoid killing Abeytia even after he stole the van, the Governor reasonably could have concluded the circumstances were sufficiently unusual to constitute evidence of current dangerousness.

Finally, defendant contends the Governor ignored the evidence demonstrating his insight and acceptance of full responsibility for his crime.   In support, he cites his statement to the parole board during the 2009 hearing that resulted in the board setting a parole date for him.   He told the board:

“I am very sorry and do accept full responsibility for the tragic loss of Mr. Abieta's [sic] life.   I am truly sorry for the loss, pain, and suffering I have caused his family and my family and society as a whole.   I understand that his family and daughter was robbed of a husband and father as a direct result of my senseless act.   I apologize to all of Mr. Abieta's [sic] family for causing them so much pain.   Nothing I say or do can or will bring Mr. Abieta [sic] back or erase the pain I have caused his family.   When I committed this horrible crime I was fairly young, very immature, irresponsible, lacked real family guidance.   I was socializing with the wrong crowd, had recently been laid off from my job, and was homeless.   I was under a lot of stress and using alcohol and drugs.   Instead of swallowing my pride and asking my family and friends for help, I made some bad decisions, one of which cost Mr. Abrieta [sic] his life.   I am not making excuses for my behavior, I accept full responsibility for his death.   I chose to abuse alcohol and drugs, which led to more of the other problems in my life.   I understand that I made the decision to abuse these substances, and I am responsible for all of my actions.   Accepting I had problems with alcohol and drugs was the first step towards my recovery.   I have participated in AA and NA for the past 16 years and will continue to attend meetings upon my release.   I have taken self help and anger management courses and now have the tools necessary to deal with stress and conflicts in a nondestructive manner.   I realize saying I am sorry for all the pain I have caused is not enough.   I must demonstrate my sorrow through my actions and strive to be a better person every day of my life.”

Defendant's challenges to the Governor's findings are unavailing because they amount to reweighing the evidence of whether he continues to pose an unreasonable risk to society.   We may not join that reweighing.   That defendant's remorseful words may be more convincing to a future parole board or Governor due to the passage of time does not mean the Governor here was not entitled to discount those words now.   The Governor may judge evidence of defendant's future dangerousness more cautiously, and indeed harshly, against defendant than the board which voted to grant him parole.  (In re Prather (2010) 50 Cal.4th 238, 257 fn. 12;  In re Lawrence, supra, 44 Cal.4th at p. 1204.)   So long as “some evidence” in the record supports the Governor's finding of defendant's continued unreasonable risk to society, we must affirm the Governor's reversal of the board's decision.  (In re Lawrence at p. 1212;  In re Shaputis, supra, 44 Cal.4th at p. 1258.)

DISPOSITION

The trial court's order granting defendant Harold Zeigler's petition for writ of habeas corpus is reversed.   The trial court is directed to enter a new order affirming the Governor's reversal of the Board of Parole Hearings' decision to grant parole to Zeigler.   Our writ of supersedeas is dissolved.

WE CONCUR:

BIGELOW, P. J. FLIER, J.