IN RE: DAVID PLATA (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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In April 2009, after serving 13 years in prison on an indeterminate life sentence for his attempted first degree murder of N.O. (with a three-year enhancement for the use of a firearm), David Plata was denied parole for the fourth time by the Board of Parole Hearings (Board).   The trial court granted Plata's petition for a writ of habeas corpus, vacating the Board's decision and ordering a new hearing, concluding there was no evidence of Plata's current dangerousness.   The People appeal, contending the trial court exceeded its authority by substituting its judgment for that of the Board on the issue of Plata's suitability for parole.   We conclude the trial court applied the correct standard of review and properly discharged its duties in granting Plata's petition.   We therefore affirm.

BACKGROUND

In 1995, at the time of the life crime, Plata was 15 years old, had been using marijuana and alcohol for several years, and had already suffered an adjudication for a home invasion robbery committed when he was just 13 years old.   Although Plata had a stable home life, he fell in with the wrong crowd and was a self-described “gang wannabe.”

Plata committed the 1993 robbery with the victim of the life crime, N.O., Oscar Arrosco, and several others.   N.O. later cooperated with police who were investigating the robbery, and Plata and Arrosco were arrested.   Plata, who acted as a lookout with N.O., was placed at home on probation, and Arrosco (who was older and had masterminded the crime) was sent to the California Youth Authority (now the Division of Juvenile Justice).   Plata admired Arrosco, and the two stayed in contact.   In a letter to Plata, Arrosco asked him to “beat [N.O.'s] ass again.”   Plata wrote Arrosco that he was getting a “quete” (gun) and was thinking about “making some holes on the stupid white boy for starting all this” (referring to N.O. and his cooperation with police).   There were other problems between Plata and N.O., in addition to N.O.'s cooperation with police.   In 1994, Plata and N.O. played high school football together, and N.O. bullied Plata, roughed him up on the field, and publicly ridiculed Plata's football skills.

On the morning of November 17, 1995, Plata and three of his friends lured N.O. to a park under the pretense they were going to smoke marijuana.   Plata then shot N.O. four times at point blank range.   N.O. collapsed, and as Plata and his friends were fleeing, N.O. started to cry out in pain.   Plata returned and shot N.O. two more times, and left only after N.O. pretended to be dead.   N.O. was later discovered by a hiker and survived.

Plata was a model prisoner during his incarceration, first with the Division of Juvenile Justice and then at Avenal State Prison.   He had no disciplinary problems and was well liked by staff.   He participated in Alcoholics and Narcotics Anonymous (AA and NA, respectively), several vocational programs (including one in electronics), obtained his GED, and completed many college-level courses.

A 2004 psychological evaluation set forth the following facts:  Plata was diagnosed in 1996 with a conduct disorder and a developing antisocial personality disorder, for which he participated in anger management courses.   By 2004, Plata had no need for mental health treatment;  his primary clinical issue was identified as polysubstance abuse (alcohol and marijuana), which was in remission.   The psychologist noted that Plata's conduct disorder and antisocial personality disorder had “significantly improved.”   During the evaluation, Plata discussed his belief that N.O. had “informed on him and his other crime partners,” and that he had “badgered” Plata during football practice, causing Plata's “animosity [to] buil[d] up towards the victim over the next two years.”   Plata admitted that he purchased a gun about a month before the crime and smoked marijuana before the shooting.   Based on his institutional conduct, his potential for dangerousness was rated “below average” when compared to other inmates, but was “above average” when compared to the “average unconfined citizen.”   The psychologist concluded that Plata had good insight into the causes of the crime.

In a 2007 psychological evaluation, it was observed that Plata behaved “in the same exemplary fashion that has characterized his entire imprisonment.”   He completed independent study courses in “Anger,” “Self–Worth,” and a professional bookkeeping and accounting program.   Plata displayed a “firm understanding of the underlying dynamics (i.e., poor anger control, criminal life style, immaturity—age 15, and substance abuse) related to his violent behavior.”   He had parole plans of living with his parents, and had written to various electrical companies in the Los Angeles area about employment.   Plata “admitted his guilt” of the crime and said he “acted impulsively and was high on marijuana.”   Plata stated that he had wanted to “ ‘get even’ ” with N.O. and “ ‘get back at him’ ” for belittling Plata's football skills.   Plata did not discuss N.O.'s involvement in the 1993 robbery or N.O.'s cooperation with the police during the 2007 evaluation.   Plata expressed remorse for his actions and acknowledged the suffering he caused N.O. and N.O.'s family.   The psychologist determined that Plata “appears to have adequate insight and self-understanding into the underlying dynamics of his violent offense.”   The psychologist found no evidence of current mental illness, and assessed Plata to be in the low risk range for psychopathy and for future violence.

After consideration of the 2004 and 2007 psychological evaluations, letters from Plata's family offering him housing and support, and new evidence of correspondence between Plata and Arrosco and two laudatory “chronos,” parole was denied.   The Board based its decision on the severity of the commitment offense, Plata's unstable social history (his prior robbery adjudication, drug use, and dishonesty with his parents), “lack of insight” (his proffered motive of football heckling), and his minimization of his role in the crime (that he was under the influence of drugs and acted impulsively).   The Board concluded that Plata was dishonest during his 2007 psychological evaluation when he characterized the attempted murder as revenge for football heckling, instead of the Board's belief that the crime resulted from N.O.'s cooperation with the police following the 1993 robbery.   The Board also concluded that Plata had a history of dishonesty, based on his testimony that he concealed his drug use and criminal activity from his parents.   The Board therefore discounted Plata's exemplary prison record, noting that “in high school and at home he was [also] absolutely discipline free and thought to be a wonderful young person” before committing the 1993 robbery.

Plata challenged the denial by habeas petition, which was granted by the trial court.   The court concluded that “the record does not contain ‘some evidence’ to support the determination that the Petitioner currently presents an unreasonable risk of danger to society and is, therefore, not suitable for release on parole.”   The court found that Plata had not minimized his role in the crime and had adequate insight, based on his testimony that he blamed himself for the crime, instead of any external factor, because he “ ‘should have known anger management skills.’ ”   The People filed this timely appeal, as well as a petition for a writ of supersedeas.   We granted a stay of the trial court's order pending further order of this court.

DISCUSSION

Pursuant to Penal Code sections 3040 and 5075 et seq., the Board is the agency generally authorized to grant parole and set parole release dates.   The Board enjoys substantial discretion in exercising these functions.  (In re Lawrence (2008) 44 Cal.4th 1181, 1204 (Lawrence ).)   It has the discretion to decline to fix a firm date for an inmate's release on parole and to continue the inmate's indeterminate status, if it finds that the inmate's crime or social history continues to reflect that he presents a risk to public safety.   (Id. at pp. 1227–1228.)   In determining an inmate's suitability for parole, the Board “must consider all relevant statutory factors, including those that relate to postconviction conduct and rehabilitation.  [Citation.]”  (Id. at p. 1219.)   The presumption is that parole must be granted unless public safety requires a lengthier period of incarceration.  (In re Shaputis (2008) 44 Cal.4th 1241, 1257.)

Where, as here, the trial court's habeas order concerning a parole decision by the Board is based solely on documentary evidence, we independently review the record to determine whether there is some evidence to support the decision.   (In re Rosenkrantz (2002) 29 Cal.4th 616, 677.)   In reviewing the Board's parole suitability determination, we examine whether “some evidence” in the record demonstrates that the inmate poses a current threat to public safety (rather than whether some evidence supports the Board's characterization of the facts contained in the record).  (Lawrence, supra, 44 Cal.4th at p. 1191;  In re Prather (2010) 50 Cal.4th 238, 251–252 (Prather ).)   The “some evidence” standard of review is “ ‘exceedingly deferential,’ ” but “certainly is not toothless,” for it “requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision—the determination of current dangerousness.”  (Lawrence, supra, 44 Cal.4th at pp. 1210–1212, italics added.)

In determining whether an inmate is suitable for release on parole (e.g., the inmate's current dangerousness) the Board must apply the factors found in California Code of Regulations, title 15, section 2402, subdivisions (c) and (d).  The factors tending to show unsuitability for parole are:  “(1) Commitment Offense.   The prisoner committed the offense in an especially heinous, atrocious or cruel manner.   The factors to be considered include:  [¶] (A) Multiple victims were attacked, injured or killed in the same or separate incidents.  [¶] (B) The offense was 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.  [¶] (2) Previous Record of Violence.   The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age.  [¶] (3) Unstable Social History.   The prisoner has a history of unstable or tumultuous relationships with others.  [¶] (4) Sadistic Sexual Offenses.   The prisoner has previously sexually assaulted another in a manner calculated to inflict unusual pain or fear upon the victim.  [¶] (5) Psychological Factors.   The prisoner has a lengthy history of severe mental problems related to the offense.  [¶] (6) Institutional Behavior.   The prisoner has engaged in serious misconduct in prison or jail.”  (Cal.Code Regs., tit. 15, § 2402, subd. (c).)

The factors showing suitability are:  “(1) No Juvenile Record.   The prisoner does not have a record of assaulting others as a juvenile or committing crimes with a potential of personal harm to victims.  [¶] (2) Stable Social History.   The prisoner has experienced reasonably stable relationships with others.  [¶] (3) Signs of Remorse.   The prisoner performed acts which tend to indicate the presence of remorse, such as attempting to repair the damage, seeking help for or relieving suffering of the victim, or indicating that he understands the nature and magnitude of the offense.  [¶] (4) Motivation for Crime.   The prisoner committed his crime as the result of significant stress in his life, especially if the stress has built over a long period of time.  [¶] (5) Battered Woman Syndrome.   At the time of the commission of the crime, the prisoner suffered from Battered Woman Syndrome, as defined in section 2000(b), and it appears the criminal behavior was the result of that victimization.   [¶] (6) Lack of Criminal History.   The prisoner lacks any significant history of violent crime.  [¶] (7) Age. The prisoner's present age reduces the probability of recidivism.  [¶] (8) Understanding and Plans for Future.   The prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release.”  (Cal.Code Regs., tit. 15, § 2402, subd. (d).)

The Board based its denial of parole on the seriousness of the commitment offense, concluding that it was “especially heinous, atrocious and cruel” and the motive was “very trivial.”   The Board believed Plata had not taken full responsibility for the crime, based on his failure to discuss N.O.'s cooperation with the police as a motive during his 2007 psychological evaluation.   The Board also was concerned that Plata minimized his culpability by characterizing his conduct as “impulsive” and resulting from being high on drugs, notwithstanding the significant evidence of premeditation.

The gravity of Plata's commitment offense, alone, is insufficient to support the finding he currently presents a risk to public safety if released.   (Lawrence, supra, 44 Cal.4th at p. 1211 [even especially heinous murder will not automatically establish unsuitability in perpetuity (id. at pp. 1217–1211) ].)   Nevertheless, a denial-of-parole decision may properly be based on consideration of the circumstances surrounding the commitment offense, but only if those circumstances rationally lead to a conclusion the inmate still poses a current risk to public safety.  “[T]he relevant inquiry for a reviewing court is not merely whether an inmate's crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board.”  (Lawrence, supra, 44 Cal.4th at p. 1221.)   “[W]here the record ․ contains evidence demonstrating that the inmate lacks insight into his or her commitment offense or previous acts of violence, ․ the aggravated circumstances of the crime reliably may continue to predict current dangerousness even after many years of incarceration.  [Citations].”  (Lawrence, supra, 44 Cal.4th at p. 1228.)

There is no doubt that Plata's crime was heinous.   Plata contemplated the murder for at least a month in advance, in retaliation for events occurring over the course of the two preceding years.   After luring N.O. to a remote area and shooting him four times, Plata did not seek help when he heard N.O. cry in pain;  instead, he shot him two more times, and left only when he believed N.O. to be dead.   The motive for the attempted killing—revenge for cooperating with the police and belittling Plata's football skills—is indisputably trivial.   There is no doubt this was a horrible crime, perpetrated with chilling callousness.   That being said, the Board's decision failed to articulate how the circumstances of a 14–year–old crime that Plata committed when he was just 15 years old was probative of his current dangerousness, other than to state, without evidentiary support, that he lacked adequate insight and minimized his conduct.

There is simply no support for the finding that Plata lacked adequate insight, and did not accept responsibility for his crime.   Plata's failure to discuss one aspect of his motive to kill N.O. during his 2007 psychological evaluation does not indicate any lack of insight.   Plata freely discussed N.O.'s cooperation with police (as well as N.O.'s heckling) as a motive during his 2004 evaluation and, when questioned during the 2009 parole hearing, admitted without hesitation that N.O. talking to the police was one of several factors leading to the crime.   The Board ignored Plata's overarching assessment of the causative factors leading to the crime—his immaturity, poor anger management and a gang “wannabe” lifestyle—all which had been addressed during his rehabilitation.

Also, Plata's 2007 statement that his crime was “impulsive[ ]” and that his judgment was impaired by drugs did not minimize his responsibility for the crime, and must be viewed in the context of Plata's other statements.   Plata denied that his marijuana use caused the crime, instead positing that his poor anger management skills were responsible.   Despite the characterization of his conduct as impulsive (again, during one psychological evaluation), Plata has never denied his guilt for the crime, or the advance planning that preceded it.

The Board also based its denial on Plata's “unstable social history,” such as his juvenile robbery conviction, gang involvement, drug use, and his concealment of these behaviors from his parents.   However, the Board failed to identify any reason that this stale history outweighs Plata's rehabilitative efforts in the years that followed, such as his abstention from gang culture, lack of any discipline, and participation in NA and AA. We can hardly infer (as the Board apparently did) that a teenager's concealment of his illicit activities from his parents is probative of any present dishonesty or current dangerousness in a nearly 30–year–old adult.   These stale factors, which Plata has no capacity to change, have “diminishing predictive value” for Plata's future conduct, rendering them insufficient to show that Plata continues to pose a serious public danger.   Reliance on these factors, without identifying how they show a risk of current or future dangerousness, can violate the statutory and constitutional requirements of the parole-determination process.  (In re Roderick (2007) 154 Cal.App.4th 242, 277;  In re Scott (2005) 133 Cal.App.4th 573, 594–595 [reliance on immutable factor without regard to later circumstances may violate due process].)   After a long period of positive rehabilitation these factors cannot alone support a determination that Plata remains dangerous to public safety many years later after he has matured into an adult.  (Lawrence, supra, 44 Cal.4th at pp. 1191, 1211.)

The balance of the record contains ample evidence of factors establishing Plata's suitability for parole, none of which the People contest, and all of which were acknowledged by the Board.   Plata is remorseful, has remained free from discipline during his entire incarceration, and has regularly and successfully participated in AA, NA, anger management courses, and other self-improvement programs at the prison designed to facilitate his re-entry into society and to maintain his sobriety.   Plata has obtained his GED, is well on his way to completing a college degree, and has acquired marketable vocational skills.   Additionally, Plata has solid parole plans, with offers of housing and support from several family members, and plans to continue his education and participation in AA and NA.

We conclude the Board's decision failed to articulate how Plata presents a current threat to public safety if released, and therefore affirm the trial court's order vacating the Board's decision and ordering a new hearing.

DISPOSITION

The order of the trial court granting Plata's petition for a writ of habeas corpus and vacating the Board's decision of April 13, 2009, is affirmed.   The order of this court imposing a stay of the trial court's order is lifted.   The Board is directed to conduct a new parole-suitability hearing in accordance with due process of law as set forth in In re Prather, supra, 50 Cal.4th 238.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

RUBIN, Acting P.J. FLIER, J.