In re JOSEPH ROZZO









Filed 3/16/09; on transfer from Supreme Court






CERTIFIED FOR PUBLICATION

OPINION AFTER TRANSFER FROM THE
CALIFORNIA SUPREME COURT

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re JOSEPH ROZZO on Habeas Corpus.

D049704 (Super. Ct. No. CRN 6465)

Petition for writ of habeas corpus following Governor's reversal of a grant of parole. Don Martinson, Judge. Petition denied.

Roger S. Hanson for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Anya M. Binsacca and Linnea D. Piazza, Deputy Attorneys General, for Respondent.
I.
INTRODUCTION
Joseph Rozzo murdered Richard Heggie in 1980. In 1982, a jury found Rozzo guilty of second degree murder, and he is currently serving a sentence of 16 years to life. Rozzo filed this petition for writ of habeas corpus challenging the Governor's reversal of a decision of the Board of Parole Hearings (Board) granting Rozzo parole. Rozzo's primary claim is that the Governor's decision violates his right to due process because there is not sufficient evidentiary support for the decision.
In our initial opinion in this matter, we concluded that there was sufficient evidence to support the Governor's decision. (In re Rozzo (2008) 159 Cal.App.4th 1089, 1106.) We rejected the remainder of Rozzo's claims and denied the petition. (Id. at pp. 1110-1113.) The Supreme Court granted Rozzo's petition for review (In re Rozzo, review granted May 14, 2008, S161469), and subsequently issued two companion decisions, In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), in which the court clarified the law governing judicial review of parole decisions. The Supreme Court then transferred Rozzo's case back to this court with directions to vacate our earlier decision and reconsider the case in light of Lawrence and Shaputis.
We now vacate our prior decision and reconsider the matter, as directed by the Supreme Court. Upon reconsideration, we again conclude that there is sufficient evidence to support the Governor's decision, and reject the remainder of Rozzo's claims. Accordingly, we deny the petition.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The commitment offense
At Rozzo's November 2005 parole suitability hearing before a panel of the Board, the presiding commissioner recited the following summary of the facts of Rozzo's commitment offense into the record:^[1]
On July 30, 1980[,] at approximately 9:30 a.m.[,] a motorist driving on [H]ighway 79 near [Warner] Springs California discovered the body of Richard Heggie. . . . [A] sheriff[']s deputy was summoned and upon arrival determined the victim was dead. The sheriff[] observed signs of a scuffle near the body [and] the coroner determined that Heggie had deep abrasions in the front throat area and both left and right sides of his neck. The abrasions were inflicted on a downward slant as though caused by fingernails. Numerous other bruises were presented on the victim[']s temple, eyebrow, cheekbones, and on the left side of the torso and chest. Small amounts of blood [were] oozing from the victim[']s mouth. An autopsy [was performed and] the coroner discovered blood in the chest cavity and [a] large . . . hematoma on the right temple area of the victim's head. The throat was noted to have a crushed larynx, and a broken neck. The cause of death was [c]ited as substantial injuries to the neck and head areas.
A subsequent investigation revealed that on July 29, 1980, Joseph Rozzo, Ronald Talamantez, Kenneth Jorman, Glenn Duro, John Cassell, and other individuals were driving to an Indian reservation when they observed a [B]lack man[,] Rich Heggie[,] walking on the side of the road. . . . [Rozzo and other members of the group began] beating him with their fists and making racially derogatory statements. Heggie was then thrown in the back of the truck and continued to be beaten by his assailants. Heggie apparently did not actively resist the beating but plead[ed] to be left alone. [Heggie] was then removed from the truck bed and forced into the tru[n]k of one of the other vehicles. The group took Heggie to a turnaround along the side of the road.
Removing [Heggie] from the tru[n]k [the group] . . . continued beating him. Rozzo and Talamantez hit and kicked the victim repeatedly while saying, "you are going to die now nigger." Heggie screamed while the beating continued, begging them to let him go and not to kill him. Talamantez and Rozzo ceased beating him and drank beer while Heggie crawled into a ditch. They [Talamentez and Rozzo] followed [Heggie] and proceeded to beat him again. Upon returning to the truck Rozzo and Talamantez told the group that Heggie was dead. Rozzo stated that he [wa]s sure [that Heggie was dead] because [Rozzo] shoved [his] thumb into [Heggie's] [A]dam[']s apple and it burst.
B. Rozzo's jury trial, conviction, and appeal
Rozzo was charged with first degree murder and three special circumstances: murder by torture (Pen. Code,^[2]§ 190.2, subd. (a)(18)); racially motivated killing (§ 190.2, subd. (a)(16)); and murder committed during a kidnapping (§ 190.2, subd. (a)(17)). The jury found Rozzo guilty of second degree felony murder, with kidnapping as the underlying felony. On appeal, this court affirmed Rozzo's conviction. (People v. Rozzo, supra, D000422.) In a concurring opinion, Justice Staniforth stated the following, "The evidence here warrants a first degree (premeditated or torture) murder finding. I concur in a second degree holding only because I know of no way to raise ─ even on a retrial ─ the degree of guilt to first degree murder." (People v. Rozzo, supra, D000422 (conc. opn. of Staniforth, J.).)
C. Rozzo's parole suitability hearings
In 1990, Rozzo attended his first parole suitability hearing. Hearings were subsequently held on nearly a yearly basis. In all hearings prior to 2005, Board panels determined that Rozzo was unsuitable for parole. A Board panel held an 11th parole suitability hearing for Rozzo in November 2005. At the conclusion of that hearing, the panel determined that Rozzo was suitable for parole, concluding that he would no longer pose an unreasonable risk to society or a threat to public safety if released from prison.
In support of its decision, the Board panel noted that Rozzo had no juvenile record nor any record of assaulting others while in prison. In addition, Rozzo has enhanced his ability to function within the law by participating in educational programs, and has received his GED. Further, Rozzo has been involved in self-help programs and vocational programming while in prison. Rozzo has received excellent job performance ratings. The panel also stated that because of maturation and his advanced age, Rozzo has a reduced probability of recidivism.^[3] The Board affirmed the panel's decision in March 2006.
D. The Governor's reversal of the Board's grant of parole
In March 2006, the Governor reversed the Board's decision to grant Rozzo parole. In his accompanying statement of reasons, the Governor described the circumstances of the murder in a manner similar to the description in part II.A., ante. In evaluating these circumstances, the Governor agreed with Justice Staniforth's observation that the evidence warranted a first degree murder finding with premeditation or torture. The Governor stated that he agreed with the statement made by a commissioner in Rozzo's 2002 parole hearing that, relative to other cases involving second degree murder, Rozzo's offense was " 'the worst one, or one of the worst ones we've ever seen.' " The Governor further stated:
"The facts of this crime ─ Mr. Talamantez's suggestion that the group go 'hunting,'[^[4]] the prolonged and horrific beating inflicted by Mr. Rozzo and his crime partner, and the racial slurs used by both men during the attack ─ go well beyond that required to sustain a second-degree murder conviction. The gravity of this shocking crime alone is sufficient for me to conclude that Mr. Rozzo's release from prison would pose an unreasonable public-safety risk."

In addition to his description of the murder, the Governor detailed Rozzo's criminal history prior to the murder as follows:
"Mr. Rozzo was 30-years-old at the time of the offense, and has an adult criminal history that escalated in severity. In November of 1969 he was arrested for disturbing the peace and received a 30-day suspended sentence and one year of probation. In 1971 he was arrested for possession of marijuana for sale in July and sentenced to 180 days in jail and 36 months of formal probation; according to him, he violated probation by participating in a robbery, and was sent to prison. In October of 1971 he was arrested for possession of marijuana and sentenced to one year of probation. In 1973 he was arrested for possession of dangerous drugs in February and possession of drug paraphernalia in September; neither arrest led to a conviction. In February of 1974 he was arrested for robbing an avocado orchard owner with a sawed-off shotgun and was found guilty of second-degree robbery and was sentenced to one year-to-life in prison plus a concurrent sentence of two-to-ten years for violating probation; he served two years and was paroled, but he violated his parole and was sent back to state prison. In 1976 he was arrested for petty theft in January, violating parole in July for which he was sentenced to four days in jail, and misdemeanor hit and run in December for which he was sentenced to 30 days in jail."

The Governor determined that "Rozzo's history of serious criminal misconduct weighs against parole suitability."
The Governor also noted that Rozzo had been disciplined four times for various prison rules violations, including falsifying state documents, attempting to introduce contraband into his unit, possessing dangerous contraband in his cell, and refusing to submit to a urinalysis. The Governor noted that Rozzo had remained discipline free for 20 years and found this fact "encouraging," but stated, "nevertheless [Rozzo] engaged in serious misconduct in prison."
The Governor also stated that "Rozzo . . . has demonstrated a growing sense of remorse for his crime, as he initially told the probation officer that he was innocent . . . yet in 2002 attempted to send a letter to Mr. Heggie's family describing how sorry he was for his involvement in the crime." In addition, the Governor noted, "during his 2004 mental health evaluation [Rozzo] stated that he committed 'a terrible crime' and could not express how deeply sorry he was." However, the Governor stated that Rozzo continued to blame his commission of the crime on his consumption of alcohol and to deny that the crime had been racially motivated. The Governor noted that Rozzo stated during the 2005 parole hearing that the crime would not have happened if he had not been under the influence of alcohol.
During Rozzo's 2005 parole hearing, the deputy district attorney requested that the commissioners ask Rozzo whether the murder had been racially motivated. Thereafter, the following colloquy occurred:
"[Commissioner]: Was this a[] racially motivated offense‌

"[Rozzo's counsel]: I am sorry that gets into the fact[s] Commissioner.

"[Commissioner]: He asked the question I am only asking Mr. Rozzo. You don't wish to answer the question‌

"[Rozzo's counsel]: I think he took his right to not speak about the crime today, thank you Commissioner."

"[Deputy District Attorney]: So my question[] cannot be answered."

Although the Governor did not specifically refer to this exchange in his statement of reasons, the Governor concluded that Rozzo "still seems to lack insight into why he committed such a terrible crime."
The Governor also considered factors that supported a grant of parole. The Governor noted that while incarcerated, Rozzo had earned a GED, become highly skilled in welding, held numerous jobs within the prison, and participated in an array of self-improvement groups. The Governor noted that Rozzo had received numerous commendations for his performance in various prison jobs and his participation in self-help programs. The Governor stated that these factors supported Rozzo's release from prison, and also noted that Rozzo had made "realistic, confirmed plans upon parole."
The Governor concluded by stating, "[T]he especially grave and atrocious crime committed by Mr. Rozzo, his history of misconduct both inside and outside of prison, and his lack of insight into why he committed the crime presently outweigh[] the factors tending to support his parole suitability." The Governor continued, "The gravity of this shocking crime alone is sufficient for me to conclude that Mr. Rozzo's release from prison would pose an unreasonable public-safety risk."
E. Rozzo's petitions for habeas corpus
Rozzo filed a petition for habeas corpus in the trial court. In his petition, Rozzo claimed that the record did not support the Governor's decision. The trial court commented that the murder had been "racially motivated" and that it "was prolonged and involved torture and a callous disregard for the victim's suffering." The court determined that there was "some evidence" to support the Governor's decision and denied the petition.
Rozzo subsequently filed this petition for writ of habeas corpus in this court.
III.
DISCUSSION
A There is some evidence to support the Governor's decision finding Rozzo
unsuitable for parole

Rozzo claims that the Governor's reversal of the Board's decision violates his right to due process because it is "supported by no evidence whatsoever." We disagree.
1. Standard of review

In In re Rosenkrantz (2002) 29 Cal.4th 616 (Rosenkrantz), the Supreme Court held that prisoners in California have a liberty interest in parole suitability decisions and that this interest is protected by due process of law, as embodied in the state Constitution. (Id. at pp. 655, 658, fn. 12.) The Rosenkrantz court further held that due process requires that there be "some evidence" in the record before the Board that supports a decision by the Board to deny parole or a governor's decision to reverse a grant of parole. (Id. at pp. 652, 664, 667.) The Rosenkrantz court characterized this standard as "extremely deferential." (Id. at p. 665.)
In Lawrence, supra, 44 Cal.4th 1181, the Supreme Court reaffirmed "that the decisions of both the Board and the Governor are entitled to deference." (Id. at p. 1191, fn. 2.) However, the Lawrence court clarified that "when a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings." (Id. at p. 1212.) Thus, the "mere existence of a regulatory factor establishing unsuitability does not necessarily constitute 'some evidence' that the parolee's release unreasonably endangers public safety." (Id. at p. 1225.)^[5]
2. Governing law

a. The statutes governing suitability for parole of prisoners
who are serving indeterminate life sentences

Section 3041, subdivision (a) provides in relevant part, "One year prior to the inmate's minimum eligible parole release date a panel of two or more commissioners or deputy commissioners shall again meet with the inmate and shall normally set a parole release date as provided in Section 3041.5." Section 3041, subdivision (b) provides in relevant part, "The panel or the board, sitting en banc, shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting."
b. The Board's regulations concerning prisoner suitability for parole

Title 15, section 2402, of the California Code of Regulations outlines the manner by which the Board is to determine whether a prisoner such as Rozzo is suitable for parole.^[6] Subdivision (c) of that section provides a nonexclusive list of "Circumstances Tending to Show Unsuitability." Included among these circumstances are the following pertaining to the commitment offense:
"(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." (Cal. Code Regs., tit. 15, § 2204, subd. (c)(1).)

c. The Governor's power to review the Board's decision

Article V, section 8(b) of the California Constitution provides in relevant part:

"No decision of the parole authority of this state with respect to the granting, denial, revocation, or suspension of parole of a person sentenced to an indeterminate term upon conviction of murder shall become effective for a period of 30 days, during which the Governor may review the decision subject to procedures provided by statute. The Governor may only affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider."

Section 3041.2 specifies the manner by which the Governor may exercise his constitutional power of review of the Board's decision:
"(a) During the 30 days following the granting, denial, revocation, or suspension by a parole authority of the parole of a person sentenced to an indeterminate prison term based upon a conviction of murder, the Governor, when reviewing the authority's decision pursuant to subdivision (b) of Section 8 of Article V of the Constitution, shall review materials provided by the parole authority.

"(b) If the Governor decides to reverse or modify a parole decision of a parole authority pursuant to subdivision (b) of Section 8 of Article V of the Constitution, he or she shall send a written statement to the inmate specifying the reasons for his or her decision."

d. Case law

In Rosenkrantz, the Supreme Court held that "[t]he nature of the prisoner's offense, alone, can constitute a sufficient basis for denying parole. [Citations.]" (Rosenkrantz, supra, 29 Cal.4th at p. 682.) However, the Rosenkrantz court acknowledged that in some situations, a decision denying a prisoner parole solely on the basis of the circumstances of his commitment offense might violate due process:
"In 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. Denial of parole under these circumstances would be inconsistent with the statutory requirement that a parole date normally shall be set 'in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public. . . .' (Pen. Code, § 3041, subd. (a).) 'The Board's authority to make an exception [to the requirement of setting a parole date] based on the gravity of a life term inmate's current or past offenses should not operate so as to swallow the rule that parole is "normally" to be granted. Otherwise, the Board's case-by-case rulings would destroy the proportionality contemplated by Penal Code section 3041, subdivision (a), and also by the murder statutes, which provide distinct terms of life without possibility of parole, 25 years to life, and 15 years to life for various degrees and kinds of murder. (Pen. Code, § 190 et seq.) [¶] Therefore, a life term offense or any other offenses underlying an indeterminate sentence must be particularly egregious to justify the denial of a parole date.' [Citation.]" (Id. at p. 683.)

In In re Dannenberg (2005) 34 Cal.4th 1061 (Dannenberg), the Supreme Court returned to the issue of the circumstances under which a denial of parole based solely on the nature of a prisoner's commitment offense might violate due process. The Dannenberg court stated, "When the Board bases unsuitability on the circumstances of the commitment offense, it must cite 'some evidence' of aggravating facts beyond the minimum elements of that offense. (Rosenkrantz, supra, 29 Cal.4th 616, 658, 683.)" (Dannenberg, supra, 34 Cal.4th at pp. 1095-1096, fn. 16.) The Dannenberg court clarified that, "[o]ur use of the phrase 'particularly egregious,' [in Rosenkrantz] 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." (Dannenberg, supra, 34 Cal.4th at p. 1095, quoting Rosenkrantz, supra, 29 Cal.4th at p. 683.)
More recently, in Lawrence, the Supreme Court stated, "[T]o the extent our decisions in Rosenkrantz and Dannenberg have been read to imply that a particularly egregious commitment offense always will provide the requisite modicum of evidence supporting the Board's or the Governor's decision, this assumption is inconsistent with the statutory mandate that the Board and the Governor consider all relevant statutory factors when evaluating an inmate's suitability for parole, and inconsistent with the inmate's due process liberty interest in parole that we recognized in Rosenkrantz. [Citation.]" (Lawrence, supra, 44 Cal.4th at p. 1191.) The Lawrence court reasoned, "A survey of the appellate court decisions reveals . . . that the minimum elements inquiry is unworkable in practice, not merely because it has led courts to engage in comparative analysis or to characterize clearly aggravated conduct as not particularly egregious, but also because it has become evident that there are few, if any, murders that could not be characterized as either particularly aggravated, or as involving some act beyond the minimum required for conviction of the offense." (Id. at p. 1218.)
Thus, in the wake of Lawrence, it is clear that the fact that a prisoner's commitment offense involved an act that exceeds the minimum required for conviction is not a sufficient basis for affirming a Governor's reversal of a grant of parole. (Lawrence, supra, 44 Cal.4th at p. 1221 ["the 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 or the Governor"].) Rather, there must be "something in the prisoner's pre- or post-incarceration history, or his or her current demeanor and mental state, [that] 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.)
TO BE CONTINUED AS PART II….




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