In re Vasquez

Filed 4/18/08 In re Vasquez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL - FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re DAVID VASQUEZ
on
Habeas Corpus.
D051015
(San Diego County
Super. Ct. No. CR126443)
Petition for Writ of Habeas Corpus. George W. Clarke, Judge. Relief granted.
David Vasquez challenges Governor Arnold Schwarzenegger's reversal of a
decision by the Board of Parole Hearings (the Board) finding him suitable for release on
parole. We conclude there was no evidence to support the Governor's ultimate
conclusion that Vasquez was unsuitable for parole because he currently posed an
unreasonable risk to public safety and therefore grant the requested relief.
I. FACTS
A. The Offense
The facts of Vasquez's offense, as derived from our earlier appellate decision
(People v. Vasquez (D016853), filed May 12, 1994 [unpub. opn.]), are as follows:

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Maria Roth and the victim, Miguel Alarcon, were involved in a volatile romantic
relationship and lived together for nine years. In September 1990, the couple had a fight
and Alarcon eventually moved out of Roth's apartment two months later. Meanwhile,
Roth started seeing Vasquez and agreed to become his girlfriend.
In November 1990, Alarcon became angry after discovering that Roth was
Vasquez's girlfriend and told Roth he would "take a bat and beat the fuck out of
[Vasquez]." Alarcon later confronted Vasquez and beat him up, causing Vasquez two
black eyes and a swollen nose as well as a broken right wrist. Vasquez tried to avoid
Alarcon by staying at his brother's house, but his car was broken into, rigged so that it
would not start and items (later found in Alarcon's garage) were taken. Vasquez and
Roth then moved to his sister's house, which Vasquez believed Alarcon would not be able
to find.
Roth warned Vasquez that Alarcon was crazy enough to go after him and that he
tended to get violent when he was drunk or on drugs. Roth related one incident in which
Alarcon had been caught by the police with a rifle when he had been getting ready to hurt
someone because of jealousy. The warnings scared Vasquez, who obtained a .22
derringer from a friend, but later returned it. During December 1990, Roth met with
Alarcon and had sex with him twice, but by New Year's Eve, she was back with Vasquez.
On January 1, 1991, Alarcon stole Roth's car and later agreed to return it after Roth again
stated she would not see Vasquez any more.
Five days later, Alarcon confronted Roth about her relationship with Vasquez and
told her he would see her and Vasquez later that night and shoot them. After Roth told

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Vasquez what Alarcon had said about shooting them, they drove to a friend's house and
borrowed a two-shot derringer. When Alarcon later found the couple, Vasquez had Roth
get out of the car to hide and then drove off.
Alarcon drove after Vasquez and rear-ended Vasquez's car. Vasquez stopped, got
out and started pacing in front of his car. Alarcon also stopped and Vasquez went to the
driver's side door of his car. As Alarcon opened the door and started to get out, Vasquez
fired his gun. A few seconds after Alarcon got out of the car, Vasquez fired a second
shot and the men immediately started fighting. At some point, Alarcon stopped fighting,
but Vasquez continued to hit and kick him.
Alarcon died from a gunshot wound to his chest and suffered another wound from
a bullet that was fired into his side at a downward 40-degree angle. Alarcon's blood and
urine had traces of methamphetamine and a 0.20 blood alcohol content at the time of his
death.
After the shooting, Vasquez left town, but returned a few days later and
voluntarily went to the police station, waived his Miranda rights and gave a tape-
recorded interview. (Miranda v. Arizona (1966) 384 U.S. 436.) During the interview,
Vasquez recounted his fight with Alarcon in November and the ensuing harassment. As
to the fatal confrontation, Vasquez claimed that Alarcon was holding a gun as Alarcon
got out of the car and that he knocked it out of Alarcon's hand. Vasquez then picked up
the gun and pointed it at Alarcon as Alarcon advanced towards him. Vasquez told
Alarcon to stop, but Alarcon continued to advance. Vasquez said he fired one shot as he
backed away but Alarcon was still moving toward him. Vasquez then fired the second

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shot. Vasquez claimed that Alarcon knocked the gun out of his hand and they fought
until Alarcon slumped down. The police did not arrest Vasquez.
Four months later, Roth contacted the police after quarreling with Vasquez and
told a detective that she learned Vasquez had not shot Alarcon in self-defense, but had
murdered him. The police arrested Vasquez in September 1991.
B. The Trial and Appeal
At trial, Vasquez claimed he was attempting to leave the area to avoid Alarcon
when Alarcon rear-ended Roth's car. Vasquez parked the car and got out to look at the
damage when Alarcon pulled up behind him. Vasquez claimed that after Alarcon opened
the door and put his left foot out, Vasquez took the gun out of his pocket, pointed it at
Alarcon through the window and told Alarcon to stay in his car and leave him alone.
Alarcon then swung the car door open and the gun "just went off." Vasquez claimed that
he reflexively fired a second shot as Alarcon rushed towards him, but that the second shot
had no apparent effect on Alarcon. The men fought until Alarcon slumped down.
A jury convicted Vasquez of second-degree murder and found that he had
personally used a firearm. The probation report noted that the crime may have been
committed out of great provocation because Alarcon had continually forced
confrontations with Vasquez and that Alarcon's family had forgiven Vasquez and did not
believe he should go to prison. The probation officer indicated he had no alternative but
to recommend a 15 years to life prison term for the murder, plus an additional three years
for the firearm use. The trial court followed this recommendation and we affirmed the
judgment on appeal.

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C. Vasquez's Performance in Prison
Since entering prison in 1992, Vasquez was disciplined four times in 1998 for
violating grooming standards and counseled two times that year for less serious
misconduct. Vasquez attended adult literacy classes, worked to obtain his GED and
availed himself of an array of self-help and therapy. Vasquez also received vocational
training in auto painting, received a certificate in food service and held eleven different
institutional jobs. A prison staff member noted that Vasquez was an "exceptional
worker" and "would be a productive member of society if given a second chance."
Another staff member indicated that Vasquez was "competent and eager to take on new
tasks" and demonstrated maturity. Vasquez has maintained contact with his mother and
others over the years and made post-release plans to live with this mother and work
nearby.
D. The Present Proceedings
The present parole hearing was conducted in 2006 and the Board concluded that
Vasquez was suitable for parole and would not pose an unreasonable risk of danger to
society if released from prison. After citing Vasquez's positive prison behavior, the
Board noted that Vasquez had committed the offense as a result of "significant stress" in
his life after suffering from the victim's harassment, intimidation and assault. The Board
believed that Vasquez was more mature now that he was 43-years old and that his prison
misconduct related to a ponytail he wore as a Native American and that such behavior
was no longer considered a disciplinary matter.

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On August 3, 2006, the Governor reversed the Board's parole grant because he
believed that Vasquez posed an unreasonable risk of danger to society and that the
gravity of the murder outweighed any positive factors supporting parole suitability. The
Governor concluded that the murder involved some level of premeditation, that Vasquez
demonstrated exceptionally callous disregard for human suffering when he continued to
hit and kick Alarcon after Alarcon stopped fighting and that any stress he was under,
given the nature and circumstances of the murder, did not tip the scales in favor of parole
suitability.
Vasquez petitioned the San Diego County Superior Court for a writ of habeas
corpus, alleging that the Governor's decision was arbitrary and capricious. The court
denied the writ, concluding the Governor's decision was supported by some evidence.
Vasquez filed a writ petition in this court and we issued an order to show cause why the
relief requested should not be granted.
II. DISCUSSION
A. The Statutory Framework and Judicial Review
The purpose of parole is to "help individuals reintegrate into society as
constructive individuals as soon as they are able, without being confined for the full term
of the sentence imposed." (Morrissey v. Brewer (1972) 408 U.S. 471, 477.) Although
parolees are no longer in physical custody, they remain under the legal custody of the
Department of Corrections and Rehabilitation and can be returned to prison at any time.
(Pen. Code, § 3056; People v. Denne (1956) 141 Cal.App.2d 499, 508 [parolees are
permitted to serve the remainder of their term outside rather than within prison walls].)

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Parolees are also subject to conditions that govern their residence, associates, ability to
travel, use of intoxicants and other aspects of their lives. (Cal. Code Regs., tit. 15,
§§ 2512-2513.)
The granting of parole is an essential part of our criminal justice system and is
intended to assist those convicted of crime to integrate into society as constructive
individuals as soon as possible and alleviate the cost of maintaining them in custodial
facilities. (Morrissey v. Brewer, supra, 408 U.S. at p. 477; People v. Vickers (1972) 8
Cal.3d 451, 455, 458.) Release on parole is said to be the rule, rather than the exception
(In re Smith (2003) 114 Cal.App.4th 343, 351, citing Pen. Code, § 3041 subd. (a)) and the
Board is required to set a release date unless it determines that "the gravity of the current
convicted offense . . . is such that consideration of the public safety requires a more
lengthy period of incarceration . . . ." (Pen. Code, § 3041 subd. (b).)
In determining whether an inmate is suitable for parole, the Board and the
Governor must consider certain factors tending to show suitability and unsuitability for
parole. (Cal. Const., art. V, § 8(b); Pen. Code, § 3041.2.) The specified factors are
"general guidelines" (Cal. Code Regs., tit. 15, § 2402, subds. (c), (d)) and the Board is
expected to consider "[a]ll relevant, reliable information available" because
circumstances taken alone, while not establishing unsuitability for parole, may contribute
to a pattern which results in a finding of unsuitability. (Id. at subd. (b).)
Circumstances tending to show suitability for parole include that the inmate: (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

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significant stress in his life, especially if the stress had 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 suggest
an enhanced ability to function within the law upon release. (Cal. Code Regs., tit. 15,
§ 2402, subd. (d).)
A prisoner may be considered unsuitable for parole based on six nonexclusive
factors, including: (1) the nature of the commitment offense; (2) a previous record of
violence; (3) an unstable social history; (4) a record of sadistic sexual offenses; (5)
psychological factors; and (6) serious prison misconduct. (Cal. Code Regs., tit. 15,
§ 2402, subd. (c).) The only factor at issue in this case is the nature of Vasquez's offense,
specifically, whether it was committed in an "especially heinous, atrocious or cruel
manner." (Id. at subd. (c)(1).) Some aspects of the crime to consider in deciding this
particular factor include whether: (1) there were multiple victims; (2) the offense was
carried out in a dispassionate and calculated manner, such as an execution-style murder;
(3) he abused, defiled or mutilated the victim during or after the offense; (4) he carried
out the offense in a manner demonstrating an exceptionally callous disregard for human
suffering; and (5) the motive for the crime was inexplicable or very trivial in relation to
the offense. (Ibid.)
The Governor has the authority to review the Board's decision to parole an inmate
convicted of murder. (Cal. Const., art. V, § 8(b); Pen. Code, § 3041.2.) The Governor's

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decision to reverse a grant of parole by the Board is governed by the same factors that
guide the Board's decision (Cal. Const., art. V, § 8(b)), and is based on "materials
provided by the parole authority." (Pen. Code, § 3041.2, subd. (a).) The judicial branch
is authorized to review the factual basis of the Governor's decision. (In re Rosenkrantz
(2002) 29 Cal.4th 616, 667 (Rosenkrantz).) Although due process requires that the
Governor's decision be supported by "some evidence" in the record, only a modicum of
evidence is required and the Governor has the authority to resolve any conflicts in the
evidence and to decide the weight to be given the evidence. (Id. at p. 677.)
"[T]he precise manner in which the specified factors relevant to parole suitability
are considered and balanced lies within the discretion of the Governor, but the decision
must reflect an individualized consideration of the specified criteria and cannot be
arbitrary or capricious. It is irrelevant that a court might determine that evidence in the
record tending to establish suitability for parole far outweighs evidence demonstrating
unsuitability for parole. As long as the Governor's decision reflects due consideration of
the specified factors as applied to the individual prisoner in accordance with applicable
legal standards, the court's review is limited to ascertaining whether there is some
evidence in the record that supports the Governor's decision." (Rosenkrantz, supra, 29
Cal.4th at p. 677.)
Although the nature of the prisoner's offense, standing alone, may be a sufficient
basis to deny parole, "[i]n some circumstances, a denial of parole based upon the nature
of the offense alone might rise to the level of a due process violation--for example where
no circumstances of the offense reasonably could be considered more aggravated or

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violent than the minimum necessary to sustain a conviction for that offense."
(Rosenkrantz, supra, 29 Cal.4th at p. 683, italics added.) Accordingly, a life term offense
must be "'particularly egregious to justify the denial of a parole date.'" [Citation.] (Ibid.)
In In re Dannenberg (2005) 34 Cal.4th 1061, 1071 (Dannenberg), our high court
explained that its "use of the phrase 'particularly egregious,' conveyed only that the
violence or viciousness of the inmate's crime must be more than minimally necessary to
convict him of the offense for which he is confined. [Citation.]" (Id. at p. 1095, italics
omitted.) The Dannenberg court also emphasized that "the determination of suitability
for parole involves a paramount assessment of the public safety risk posed by the
particular offender, without regard to a comparative analysis of similar offenses
committed by other persons." (Id. at p. 1084.) Stated differently, "the Board must point
to factors beyond the minimum elements of the crime for which the inmate was
committed, [but] it need engage in no further comparative analysis before concluding that
the particular facts of the offense make it unsafe, at that time, to fix a date for the
prisoner's release." (Id. at p. 1071.) In the case before it, the Dannenberg court
concluded that the Board had proceeded lawfully when it found the inmate unsuitable for
release because it had pointed to some evidence that the particular circumstances of the
crime, circumstances beyond the minimum elements of the conviction, indicated
exceptional callousness and cruelty with trivial provocation and suggested the inmate
remained a danger to public safety. (Id. at p. 1098.)
A number of appellate courts have discussed the standard for reviewing the
Governor's reversal of a Board decision and our high court is currently considering the

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question of the extent that the Board and the Governor should consider an inmate's
current dangerousness in making a parole suitability determination, and at what point, if
ever, the gravity of the commitment offense and prior criminality are insufficient to deny
parole when an inmate otherwise appears rehabilitated. (See In re Lawrence (2007) 150
Cal.App.4th 1511, review granted Sept. 19, 2007, S154018 (Lawrence); In re Shaputis
2007 WL 2372405, review granted Oct. 24, 2007, S155872 (Shaputis); In re Cooper
(2007) 153 Cal.App.4th 1043, review granted Oct. 24, 2007, S155130 (Cooper); In re
Jacobson (2007) 154 Cal.App.4th 849 review granted Dec. 12, 2007, S156416
(Jacobson); In re Dannenberg (2007) 156 Cal.App.4th 1387, review granted Feb. 13,
2008, S158880; In re Montgomery (2007) 156 Cal.App.4th 930, review granted Feb. 20,
2008, S159141 (Montgomery); In re Staben 2007 WL 3257191, review granted Feb. 27,
2008, S159042.)
Some appellate courts have held that "[t]he test is not whether some evidence
supports the reasons the Governor cites for denying parole, but whether some evidence
indicates a parolee's release unreasonably endangers public safety. . . . [In other words,]
[s]ome evidence of the existence of a particular factor does not necessarily equate to
some evidence the parolee's release unreasonably endangers public safety." (In re Lee
(2006) 143 Cal.App.4th 1400, 1408-1409, fns. omitted, italics omitted (Lee); followed by
Lawrence, supra, 150 Cal.App.4th at p. 1544; Shaputis, supra, at p. 6; Cooper, supra,
153 Cal.App.4th at p. 1060; Montgomery, supra, 156 Cal.App.4th at p. 947; Dannenberg,
supra, 156 Cal.App.4th at p. 1398.) Other courts or dissenting justices have rejected this
standard, concluding that a parole unsuitability decision must be upheld if the offense

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was particularly heinous in that the violence or viciousness of the crime was more than
minimally necessary to convict the inmate of the offense without regard to whether there
is a connection between this finding and the conclusion that the inmate currently poses an
unreasonable risk of danger to society if released. (See e.g., Jacobson, supra, 154
Cal.App.4th at pp. 853, 860-861.) We question whether such a standard amounts to
meaningful judicial review as the facts of the crime will never change and second degree
murder convictions will almost always involve some facts showing violence or
callousness that can be considered out of proportion to any provocation.
Until our high court resolves this uncertainty, we believe the appropriate inquiry is
not whether there is some evidence to support the individual suitability or unsuitability
factors, but whether there is some evidence supporting the ultimate decision that the
prisoner will pose an unreasonable risk of danger to society if released from prison. (See
Rosenkrantz, supra, 29 Cal.4th at p. 664 [the Governor's decision is subject to judicial
review to ensure due process compliance]; Cal. Code Regs., tit. 15, § 2402, subd. (a) [an
unsuitability decision is a conclusion that "the prisoner will pose an unreasonable risk of
danger to society if released from prison"].) We agree that it is appropriate to consider
the nature of the crime as this has a bearing on whether the individual is likely to reoffend
and thereby pose a risk to society of released. However, it is not helpful for courts to
simply review the crime to ascertain whether the facts were more than minimally
necessary to convict the inmate of the offense as the facts are subject to differing
interpretations and it diverts attention from whether the crime was more than a typical
second degree murder. Accordingly, we independently review the record (Rosenkrantz,

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supra, 29 Cal.4th at p. 677) to determine whether some evidence supported the
Governor's decision that Vasquez's release currently posed an unreasonable risk of danger
to the public. (We note that in In re Singler (March 26, 2008, C054634) --- Cal.Rptr.3d -
--- [2008 WL 788471] which is not yet final, the Third Appellate District somewhat
similarly interpreted the current standard as requiring a showing that the crime was so
heinous, atrocious or cruel so as to undermine the inmate's rehabilitative efforts
demonstrating that he is no longer a danger to society if released on parole.)
B. Analysis
1. The Governor's Decision
In reversing the grant of parole, the Governor stated that "[t]he gravity of the
second-degree murder perpetrated by Mr. Vasquez alone provides a sufficient basis on
which to conclude presently that his release from prison would pose an unreasonable
public-safety risk." Specifically, the Governor referred to evidence suggesting an
exceptionally callous disregard for human suffering. (Cal. Code Regs., tit. 15, § 2402,
subd. (c)(1)(D).) The Governor also found that the evidence "involved some level of
premeditation," suggesting that Vasquez's conduct was more than necessary to commit
his crime and that he was actually guilty of first degree murder. (Dannenberg, supra, 34
Cal.4th at p. 1098.)
We must determine whether these two reasons, both based on the nature of the
commitment offense, support the Governor's unsuitability determination. The Attorney
General argues that the Governor did not rely solely on the commitment offense to
reverse the grant of parole and suggests he also relied on Vasquez's "evasive conduct"

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after the crime and a "pattern" of circumstances establishing Vasquez's unsuitability for
parole. We reject this assertion as unsupported by the Governor's reversal. (Cf. In re
DeLuna (2005) 126 Cal.App.4th 585, 593-594 ["we must confine our review to the stated
factors found by the Board . . . not to findings that the Attorney General now suggests the
Board might have made"].)
2. Exceptionally Callous Disregard for Human Suffering
"Second degree murder is defined as the unlawful killing of a human being with
malice aforethought, but without the additional elements -- i.e., willfulness,
premeditation, and deliberation -- that would support a conviction of first degree murder.
[Citations.]" (People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.) All second degree
murders, by definition, involve callousness or an indifference to the feelings and
suffering of others. (In re Smith, supra, 114 Cal.App.4th at p. 366.) Because parole is
the rule, rather than the exception (id. at p. 351), the inquiry must be whether the
particular crime was "exceptionally callous," so as to be described as "especially heinous,
atrocious or cruel." (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1).)
Here, the Governor found that Vasquez demonstrated an exceptionally callous
disregard for human suffering when he continued to hit and kick Alarcon after Alarcon
had stopped fighting. (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1)(D).) Although not
expressly stated, we presume the Governor concluded that this conduct rendered the
crime especially heinous, atrocious or cruel. (Cal. Code Regs., tit. 15, § 2402, subd.
(c)(1).)

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Any murder is atrocious and hitting and kicking an unconscious opponent shows a
callous disregard for human suffering, but the regulation requires some evidence of
exceptional callousness. Here, there is no evidence showing how long or vigorously
Vasquez beat Alarcon after Alarcon stopped fighting. Standing alone, the evidence cited
by the Governor does not show exceptional callousness and was insufficient to show that
this particular crime was especially heinous, atrocious or cruel. (Cal. Code Regs., tit. 15,
§ 2402, subd. (c)(1).) (Compare, Rosenkrantz, supra, 29 Cal.4th at p. 678 [after a week
of planning and rehearsal, defendant killed the victim by firing ten shots at close range
and at least three or four shots into the victim's head as he lay on the pavement]; In re
Van Houten (2004) 116 Cal.App.4th 339, 346, 351, 366 [defendant participated in the
premeditated and "gratuitous mutilation" of a married couple in which the wife was
stabbed 42 times while hearing her husband meet a similar fate].)
3. Premeditation
The Governor found that the evidence in the record revealed that Vasquez's
offense "involved some level of premeditation." The Governor may permissively
conclude that Vasquez was guilty of a more serious offense (Rosenkrantz, supra, 29
Cal.4th at pp. 678-679) and we must uphold that decision as long as he considered all
relevant circumstances and factors. (Id. at p. 626.) In concluding that Vasquez had
committed premeditated murder, the Governor noted that on the evening of the murder,
Vasquez borrowed a gun and had Roth leave the car when Alarcon drove up. After
Alarcon crashed into the rear of Vasquez's car, Vasquez pulled over and paced in front of
the car. When Alarcon pulled over, Vasquez approached, pointed the gun and told

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Alarcon to stay in the car. Vasquez shot as Alarcon was getting out of the car and shot
Alarcon again after Alarcon got out of the car. Standing alone, these facts are suggestive
of premeditated first degree murder because Vasquez had motive for the killing,
obtaining the gun could be interpreted as planning activity and Vasquez's pacing could be
interpreted as reflection on a course of action. (People v. Jurado (2006) 38 Cal.4th 72,
118-119 [reviewing court considers evidence of preexisting motive, planning activity and
manner of killing to determine if finding of premeditation and deliberation is adequately
supported].)
With that said, we note that the Governor's recitation of the crime omitted
undisputed facts that he previously acknowledged – that on the day of the murder
Alarcon struck Roth and threatened to shoot her and Vasquez later that evening. His
recitation of the evidence also took the crime out of context and completely ignored the
significant events leading to the deadly confrontation. Vasquez committed the crime as a
result of significant stress building over a two-month period. Alarcon assaulted Vasquez,
giving him two black eyes, a swollen nose as well as a broken arm. Despite Alarcon's
continued acts of intimidation and harassment, Vasquez moved twice to avoid further
conflict. Roth warned Vasquez that Alarcon was crazy enough to go after him and
related an incident in which Alarcon had been caught by the police with a rifle when he
had been getting ready to hurt someone because of jealousy. Scared by these warnings,
Vasquez earlier armed himself with a gun, but later returned it. We believe these facts
are significant and that the evidence is more indicative of a fearful person planning to
defend himself against a threatened shooting.

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Nonetheless, the Governor's decision shows an understanding of Vasquez's
circumstances because he later mentioned the Board's findings that Vasquez committed
the crime as a result of significant stress, noting that Alarcon harassed, intimidated and
used physical threats and force against Vasquez. The Governor concluded: "Regardless
of whether and to what [extent] he may have been under stress, given the nature and
circumstances of the murder he committed, the existence of this factor does not now tip
the scales in favor of Mr. Vasquez's parole suitability." Accordingly, the Governor
appears to have taken into account the extenuating circumstances leading to the shooting
before concluding that Vasquez posed an unreasonable risk to public safety. (Evid. Code,
§ 664 [it is presumed that official duty has been regularly performed].)
While we do not agree with the Governor's assessment that this crime amounts to a
first degree murder, we cannot reweigh the evidence (Rosenkrantz, supra, 29 Cal.4th at p.
679) and are forced to concede that there is some evidence, albeit tiny, that the
circumstances of this crime went beyond the minimum necessary to sustain a second
degree murder conviction; however, there is no evidence indicating that Vasquez's release
would unreasonably endanger public safety. (Cal. Code Regs., tit. 15, § 2402, subd. (a).)
But for the nature of the crime, all the applicable regulatory criteria indicate that
Vasquez is suitable for parole. (Cal. Code Regs., tit. 15, § 2402, subd. (d).) Vasquez
lacked a juvenile record and his two adult convictions did not involve violence. Vasquez
has reasonably stable relationships as demonstrated by support letters from several
relatives and frequent contact with his parents during his incarceration. He has very
marketable job skills and post-release plans to live with this mother and work nearby.

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Vasquez has performed well in prison and received accolades for his work ethic. He has
never refused a drug test and has been clean from illegal drugs for 14 years and from
alcohol for 11 years. A psychological evaluator described Vasquez as "bright, courteous
and high functioning" with no apparent mental health deficits or emotional problems and
concluded that Vasquez felt a tremendous amount of regret for his actions and posed little
risk to society. Vasquez's probation report indicated that he asked the victim's family for
forgiveness and that the family forgave him and blamed the crime on Vasquez's and
Alarcon's relationship with Roth. Additionally, Vasquez committed the crime as a result
of significant stress.
The denial of parole based solely on the gravity of the commitment offense
warrants especially close scrutiny as the nature of the offense is a factor that will never
change. (In re Scott (2005) 133 Cal.App.4th 573, 595.) Over sixteen years have passed
since Vasquez committed the crime and he has made commendable rehabilitative gains
during that time showing that he is ready to be reintegrated into society and serve the
remainder of his sentence outside prison walls. (Morrissey v. Brewer, supra, 408 U.S. at
p. 477; People v. Vickers, supra, 8 Cal.3d at p. 458.) While we agree that there are
certainly some crimes so heinous that the nature of the commitment offense may render
the inmate unsuitable for parole (Rosenkrantz, supra, 29 Cal.4th at p. 682), this is not one
of those crimes and the evidence suggestive of premeditation does not show that Vasquez
currently poses an unreasonable risk to public safety. The record contains no evidence
supporting the Governor's conclusion that, due to the nature of his commitment offense,
Vasquez posed an unreasonable risk of danger to society if released and it serves no

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purpose to remand this matter to the Governor to permit him to reconsider his decision.
(In re Scott, supra, 133 Cal.App.4th at pp. 603-604.)
DISPOSITION
The Governor's decision to reverse the Board's order granting parole to Vasquez is
vacated, and the Board's parole release order is reinstated.
McINTYRE, J.
I CONCUR:
McDONALD, J.

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HALLER, Acting P. J.
Based on the current state of the law, I respectfully dissent.
In deciding whether to grant or deny parole, the primary consideration to be made
is whether "the prisoner will pose an unreasonable risk of danger to society if released
from prison." (Cal. Code Regs., tit. 15, § 2402, subd. (a); see Pen. Code, § 3041, subd.
(b).) A governor is entitled to base that decision solely on the circumstances of the crime.
(In re Rosenkrantz (2002) 29 Cal.4th 616, 682-683.) In evaluating the crime, the
Governor is not bound by the evidence credited by the fact finder at trial and may
independently evaluate the evidence to determine whether, in his judgment, the
circumstances of the crime dictate denial of parole. (Id. at p. 679.)
When the Governor's decision is based solely on the circumstances of the crime,
the offense must be "particularly egregious." (In re Rosenkrantz, supra, 29 Cal.4th at p.
683.) In defining this phrase the Supreme Court has required that the "violence or
viciousness of the inmate's crime must be more than minimally necessary to convict him
of the offense for which he is confined." (In re Dannenberg (2005) 34 Cal.4th 1061,
1095, italics omitted.) It has also observed that "[i]n some circumstances, a denial of
parole based upon the nature of the offense alone might rise to the level of a due process
violation—for example where no circumstances of the offense reasonably could be
considered more aggravated or violent than the minimum necessary to sustain a
conviction for that offense." (In re Rosenkrantz, supra, 29 Cal.4th at p. 683.)
Judicial review of the Governor's decision is "extremely deferential" and is limited
to ascertaining whether "some evidence," also referred to as a "modicum of evidence,"

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supports the Governor's conclusion. When the denial is based on the circumstances of
the commitment offense, there must be some evidence supporting the Governor's
conclusion that the crime was "particularly egregious." (In re Rosenkrantz, supra, 29
Cal.4th at pp. 677, 679, 683.)
The majority correctly sets forth these standards, but, in my view, departs from
them. At page 17 of the opinion, the majority states that it disagrees with the Governor's
"assessment that this crime amounts to a first degree murder," recognizes that it "cannot
reweigh the evidence," and acknowledges that it is "forced to concede that there is some
evidence, albeit tiny, that the circumstances of this crime went beyond the minimum
necessary to sustain a second degree murder conviction. . . . " Despite these
observations, it ultimately concludes the Governor erred in denying parole. In doing so,
it takes umbrage with the Supreme Court's holding defining a crime as "particularly
egregious" if the circumstances go "beyond the minimum necessary to sustain a
conviction" of the underlying crime. (Rosenkrantz, supra, 29 Cal.4th at p. 683.)
Although persuasive, the majority's criticism does not, at this point, conform with the
current state of the law. Accordingly, because there is "some evidence" to support the
Governor's decision, I decline to join the majority's opinion.
In dissenting, I also note that the majority proposes a new test by which to review
the Governor's parole decisions. At page 12, it asserts that "the appropriate inquiry is not
whether there is some evidence to support the individual suitability or unsuitability
factors, but whether there is some evidence supporting the ultimate decision that the

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prisoner will pose an unreasonable risk of danger to society if released from prison."
(Maj. opn., p. 12.)
As commendable as this test may be, it implicitly rejects the high court's
determination that "particularly egregious" crimes are a reliable predictor of whether a
prisoner will pose an unreasonable risk of danger to society and its holding that the
Governor can deny parole relying solely on the circumstances of the crime so long as
there is "some evidence" supporting the finding of egregiousness. Until the Supreme
Court holds otherwise, I will adhere to the directives set forth in Rosenkrantz and
Dannenberg.
HALLER, Acting P. J.

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