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Name: In re Rodriguez
Case #: D057997
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 10/07/2011
Subsequent History: 1/18/2012 rev. granted (S197961)

Parole Board’s finding petitioner was unsuitable for parole is supported by some evidence petitioner lacked insight into his motivation for committing the life offense. Petitioner was convicted of second degree murder and use of a deadly weapon for killing his employer. Evidence reflected petitioner was having an affair with his employer’s wife. The Board found petitioner unsuitable for release, even though he had an exemplary prison record and parole plans. The Board noted that several psychological evaluations performed during petitioner’s incarceration reflected that he declined to discuss the life crime. This caused the examiners concern regarding his propensity to reoffend, “given his inability to discuss and accept his actions in the controlling offense.” Petitioner also refused to discuss the life offense at his 2010 parole hearing when questioned about it, although his attorney described the crime as stress related. The appellate court here denied petitioner’s request for habeas relief. “While the Board is precluded from requiring an inmate admit guilt it may consider a petitioner’s lack of insight in deciding suitability for parole.” The court found the fact that the life crime arose from a “love triangle,” as discussed by the dissent, does not mean it was based on passion and that no further explanation from petitioner is required. The circumstances of the offense, which are relevant in determining whether an inmate possesses sufficient insight into his behavior to merit release, reflected planning and an elaborate scheme to escape detection; this indicates that the life offense arose from more than just “stress.” As petitioner failed to address the internal factors that motivated him to commit the murder, there was some evidence supporting the denial of parole. Justice Aaron dissented, finding the record contained no evidence from which to conclude petitioner remained a threat.

The three-year interval for parole consideration does not violate the prohibition against ex post facto laws. In accordance with the amendment to Penal Code section 3041.5, subdivision (b)(3), the Board announced petitioner would be eligible for another parole hearing in three years. The revisions in the law effect no change in petitioner’s crime, nor does it increase his sentence; the amendment only alters the administrative method for setting parole release dates. Further, the statutory amendment is subject to qualifying provisions which allow the Board to set a hearing at an earlier date, including on request by the inmate. These procedural safeguards “eliminate any ex post facto implications because they constitute ‘qualifying provisions that minimize or eliminate’. . . the ‘significant risk of prolonging [petitioner’s] incarceration.'”