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Name: In re Russo
Case #: D057405
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 04/08/2011
Subsequent History: 7/20/11 rev. gr. (S193197)

Where petitioner minimizes responsibility for his commitment offense, there is “some evidence” to support the decision to deny parole. In 1985 the petitioner was sentenced to life with the possibility for parole after a plea to kidnaping to commit robbery, attempted murder, and admitting great bodily injury and firearm enhancements. At his 10th parole hearing in 2009, the Board of Parole Hearings found him unsuitable for parole. Petitioner alleged the denial of due process because the Board’s decision was not based on “some evidence” that he posed a current danger to society. The commitment offense involved a 1978 robbery of a convenience store and the kidnaping of the store clerk at gunpoint. After driving around for awhile, petitioner stopped the car and ordered the clerk to exit the car and lie down on the ground. Petitioner then shot the clerk twice in the back of the head and three times in the face and arm. He subsequently fled and remained at large until captured by the FBI six years later. At his 2009 parole hearing the Board found petitioner lacked insight into his offense and remained a danger. The Court of Appeal affirmed the denial of parole. Although parole cannot be conditioned on a defendant’s admission of guilt, the Board may evaluate a defendant’s lack of insight into his offense in determining his suitability for parole. At his 2009 hearing, petitioner characterized his acts as the result of “triggers” over which he had little control. He stated he did not intend to hurt the clerk, even though admitting he fired his gun. He described the shooting as “accidental” although he denied he was minimizing his conduct. The record supports the Board’s finding that petitioner has not accepted full responsibility for his life crime – this finding is also supported by the fact petitioner remained a fugitive for six years after the offense.
Retroactive application of amendments to section 3041.5 do not violate ex post facto clause. Petitioner alleged an ex post facto violation based on the Board’s use of amended Penal Code section 3041.5, subdivision (b)(3), to postpone his next parole hearing date for three years. The Court of Appeal found no ex post facto problem to application of the 2008 “Marsy’s Law” to delay the setting of petitioner’s next parole hearing. The amendment to Penal Code section 3041.5 gives the Board discretion to schedule a parole hearing 3, 5, 7, 10 or 15 years after any hearing at which parole is denied. This effects no change in petitioner’s crime, nor does it increase his sentence; it is a change in the administrative method by which the Board schedules parole hearings. Moreover, the amended statute is subject to two qualifying provisions which allow the Board to advance a hearing when a change of circumstance establishes a reasonable likelihood the inmate no longer remains a danger (§3041.5, subd. (b)(4)) or on the inmate’s request that the Board advance the date of the hearing (§3041, subd. (d)(1)). These procedural safeguards eliminate any ex post facto problems by minimizing the danger of unduly prolonging incarceration.