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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

OSVALDO ELIAS,

Petitioner,

 v.

ROBERT AYERS, Warden,

Respondent.

 /

No. C 08-2798 TEH (PR)

ORDER DENYING PETITION FOR WRIT

OF HABEAS CORPUS; DENYING

CERTIFICATE OF APPEALABILITY

Pro se Petitioner Osvaldo Elias, a state prisoner

incarcerated at San Quentin State Prison, seeks a writ of habeas

corpus under 28 U.S.C. § 2254 challenging the California Board of

Parole Hearings’ (“BPH”) August 7, 2007 decision to deny him parole. 

Doc. #1. On January 9, 2009, the Court issued an Order to Show

Cause why the writ should not be granted. Doc. #3. On March 3,

2009, Respondent filed an Answer. Doc. #4. On April 3, 2009,

Petitioner filed a Traverse. Doc. #5. 

After the matter was submitted, on April 22, 2010, the

Ninth Circuit issued its decision in Hayward v. Marshall, 603 F.3d

546 (9th Cir. 2010) (en banc), which addressed important issues

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relating to federal habeas review of BPH decisions denying parole to

California state prisoners. On May 3, 2010, the Court ordered the

parties to file supplemental briefing explaining their views of how

the Hayward en banc decision applies to the facts presented in

Petitioner’s challenge to BPH’s decision denying him parole. Doc.

#6. Respondent filed supplemental briefing on May 25, 2010;

Petitioner filed his on June 22, 2010. Doc. ## 7 & 8. 

Having considered all of the papers filed by the parties,

the Court DENIES the Petition.

I

The following summary of the facts of Petitioner’s

commitment offense is taken from the probation officer’s report as

read at Petitioner’s August 7, 2007 parole suitability hearing: 

On October 3, 1991, the Oakland Police

Department responded to a report of a drive-by

shooting at the corner of 94th Avenue and A

Street. Officers found a 14-year-old teenager,

Adolpho Espinoza on the ground suffering from

three gunshot wounds. The victim was

transported to the county hospital where he died

the next day. It appears that the victim was

standing on the corner when a large, darkcolored sedan drove by with the occupants,

shooting at the victim. The follow-up

investigation points to three young men being

involved in this offense, Cesar Estrada is

alleged to have been the driver of the car which

contained Jose Cervantes and [Petitioner]. It

is Cervantes and [Petitioner] who are alleged to

have fired their separate guns at the victim who

was killed.

Doc. #4-1 at 40–41. 

Petitioner was convicted of second degree murder with an

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attached firearm enhancement and was sentenced to sixteen years-tolife in state prison. Doc. #4-1 at 30. His life term began on May

12, 1997; his minimum eligible parole date was August 4, 2003. Id. 

On August 7, 2007, Petitioner appeared before BPH for his

third parole suitability hearing. Doc. #4-2 at 58. At that

hearing, BPH found Petitioner was not yet suitable for parole,

expressing concern over the commitment offense, Petitioner’s

unstable family history, insufficient participation in self-help

programs while in prison, lack of sufficient insight into his gangrelated activities, his prison disciplinary record that included a

recent 128 violation for disrespecting prison staff, and the lack of

completely supportive findings by prison doctors with respect to his

potential to engage in future violent acts. See Doc. #4-5 at 74. 

Petitioner unsuccessfully challenged BPH’s decision in the

state superior and appellate courts. Doc. #4-5 at 74; Doc. #4-6 at

2. On April 23, 2008, the California Supreme Court summarily denied

Petitioner’s petition for review. Doc. #4-8 at 2. This federal

Petition for a Writ of Habeas Corpus followed. Doc. #1. 

II

In Hayward, the Ninth Circuit explained the law in

California as it relates to parole suitability determinations: 

The California parole statute provides that

the Board of Prison Terms “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

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individual.” The crucial determinant of whether

the prisoner gets parole in California is

“consideration of the public safety.”

In California, when a prisoner receives an

indeterminate sentence of fifteen years to life,

the “indeterminate sentence is in legal effect a

sentence for the maximum term, subject only to

the ameliorative power of the [parole authority]

to set a lesser term.” Under the California

parole scheme, the prisoner has a right to a

parole hearing and various procedural guarantees

and rights before, at, and after the hearing; a

right to subsequent hearings at set intervals if

the Board of Prison Terms turns him down for

parole; and a right to a written explanation if

the Governor exercises his authority to overturn

the Board of Prison Terms’ recommendation for

parole. Under California law, denial of parole

must be supported by “some evidence,” but review

of the [decision to deny parole] is “extremely

deferential.” 

Hayward, 603 F.3d at 561–62 (footnotes and citations omitted). 

The court further explained that: 

[s]ubsequent to Hayward’s denial of parole, and

subsequent to our oral argument in this case,

the California Supreme Court established in two

decisions, In re Lawrence . . . and In re

Shaputis, . . . that as a matter of state law,

“some evidence” of future dangerousness is

indeed a state sine qua non for denial of parole

in California. We delayed our decision in this

case so that we could study those decisions and

the supplemental briefs by counsel addressing

them. As a matter of California law, “the

paramount consideration for both the Board [of

Prison Terms] and the Governor under the

governing statutes is whether the inmate

currently poses a threat to public safety.”

. . . There must be “some evidence” of such a

threat, and an aggravated offense “does not, in

every case, provide evidence that the inmate is

a current threat to public safety.” . . . The

prisoner’s aggravated offense does not establish

current dangerousness “unless the record also

establishes that something in the prisoner’s

pre- or post-incarceration history, or his or

her current demeanor and mental state” supports

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the inference of dangerousness. . . . Thus, in

California, the offense of conviction may be

considered, but the consideration must address

the determining factor, “a current threat to

public safety.”

Hayward, 603 F.3d at 562 (footnotes and citations omitted).

After providing this background on California law as it

applies to parole suitability determinations, the court then

explained the role of a federal district court charged with

reviewing the decision of either the BPH or the governor in denying

a prisoner parole. According to the Ninth Circuit, this Court must

decide whether a decision “rejecting parole was an ‘unreasonable

application’ of the California ‘some evidence’ requirement, or was

‘based on an unreasonable determination of the facts in light of the

evidence.’” Hayward, 603 F.3d at 562–63 (citations omitted); see

also Cooke v. Solis, 606 F.3d 1206, 1208, n. 2 & 1213 (9th Cir.

2010) (applying Hayward and explicitly rejecting the state’s

argument that “the constraints imposed by AEDPA preclude federal

habeas relief” on petitioner’s claim; noting that in Hayward, the

court “held that due process challenges to California courts’

application of the ‘some evidence’ requirement are cognizable on

federal habeas review under AEDPA”). 

III

When assessing whether California’s parole board’s

suitability determination was supported by “some evidence,” this

Court’s analysis is framed by the state’s “regulatory, statutory and

constitutional provisions that govern parole decisions in

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California.” Cooke, 606 F.3d at 1213 (citing In re Rosenkrantz, 29

Cal. 4th 616 (2002)); see Hayward, 603 F.3d at 561–62. Under

California law, prisoners serving indeterminate life sentences, like

Petitioner, become eligible for parole after serving minimum terms

of confinement required by statute. In re Dannenberg, 34 Cal. 4th

1061, 1069–70 (2005). Regardless of the length of the time served,

“a life prisoner shall be found unsuitable for and denied parole if

in the judgment of the panel the prisoner will pose an unreasonable

risk of danger to society if released from prison.” Cal. Code Regs.

tit. 15, § 2402(a). In making this determination, BPH must consider

various factors, including the prisoner’s social history, past and

present mental state, past criminal history, the base and other

commitment offenses, including behavior before, during and after the

crime, past and present attitude toward the crime and any other

information that bears on the prisoner’s suitability for release. 

See Cal. Code Regs. tit. 15, § 2402(b)–(d).

In considering the commitment offense, BPH must determine

whether “the prisoner committed the offense in an especially

heinous, atrocious or cruel manner.” Cal. Code Regs. tit. 15, §

2402(c)(1). The factors to be considered in making that

determination 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

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disregard for human suffering; (E) The motive for the crime is

inexplicable or very trivial in relation to the offense.” Id. 

According to the California Supreme Court, “the core

statutory determination entrusted to the Board and the Governor [in

determining a prisoner’s parole suitability] is whether the inmate

poses a current threat to public safety . . . .” In re Lawrence, 44

Cal. 4th 1181, 1191 (2008). And, “the core determination of ‘public

safety’ under the statute and corresponding regulations involves an

assessment of an inmate’s current dangerousness.” Id. at 1205

(emphasis in original) (citing Rosenkrantz, 29 Cal. 4th 616 & 

Dannenberg, 34 Cal. 4th 1061). The court further explained that: 

a parole release decision authorizes the Board

(and the Governor) to identify and weigh only

the factors relevant to predicting “whether the

inmate will be able to live in society without

committing additional antisocial acts.” . . .

These factors are designed to guide an

assessment of the inmate’s threat to society, if

released, and hence could not logically relate

to anything but the threat currently posed by

the inmate.

Lawrence, 44 Cal. 4th at 1205–06 (citations omitted). The relevant

inquiry, therefore, is: 

whether the circumstances of the commitment

offense, when considered in light of other facts

in the record, are such that they continue to be

predictive of current dangerousness many years

after commission of the offense. This inquiry

is, by necessity and by statutory mandate, an

individualized one, and cannot be undertaken

simply by examining the circumstances of the

crime in isolation, without consideration of the

passage of time or the attendant changes in the

inmate’s psychological or mental attitude. 

In re Shaputis, 44 Cal. 4th 1241, 1254–55 (2008). 

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1

 Here, the state appellate courts summarily denied Petitioner

relief; the state superior court was the highest state court to

address the merits of Petitioner’s claim in a reasoned decision. It

is that decision, therefore, that the Court analyzes. See LaJoie v.

Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000); Williams v. Rhoades, 354 F.3d 1101, 1106 (9th Cir. 2004) (federal court may look to any

lower state court decision that was examined, and whose reasoning was

adopted, by the highest state court to address the merits of a

petitioner’s claim).

8

The evidence of current dangerousness “must have some

indicia of reliability.” In re Scott, 119 Cal. App. 4th 871, 899

(2004) (Scott I). Indeed, "the ‘some evidence’ test may be

understood as meaning that suitability determinations must have some

rational basis in fact.” In re Scott, 133 Cal. App. 4th 573, 590,

n. 6 (2005) (Scott II); see also Cooke, 606 F.3d at 1216 (holding

that the state court decision upholding the denial of parole was

“‘“based on an unreasonable determination of the facts in light of

the evidence[],’” Hayward, 603 F.3d at 563 (quoting 28 U.S.C. §

2254(d)(2)),” and therefore finding petitioner entitled to habeas

relief because “[n]othing in the record supports the state court’s

finding that there was ‘some evidence’ in addition to the

circumstances of the commitment offense to support the Board’s

denial of petitioner’s parole”). 

IV

After reviewing the petition filed in superior court

challenging Petitioner’s August 7, 2007 parole denial, the court

affirmed BPH’s decision to deny Petitioner parole, finding it was

supported by “some evidence.”1

 Doc. #4-5 at 74. The court noted:

The record presented to this Court for review

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demonstrates that there was certainly some

evidence, including, but not limited to the

committing offense, Petitioner’s unstable family

history, Petitioner’s insufficient participating

in self help programs, Petitioner’s lack of

sufficient insight into his gang related

activities, Petitioner’s prison disciplinary

record including a recent 128 violation for

disrespecting prison staff, and the lack of

completely supportive findings by Doctors

Kornberg and Starrett. There is nothing in the

record indicating that the Board’s decision was

arbitrary or capricious, nor that Petitioner’s

. . . due process rights were violated. Thus,

Petitioner has failed to meet his burden of

sufficiently proving or supporting the

allegations that serve as the basis for habeas

relief. 

Doc. #4-5 at 74. After careful review of the law and the evidence,

and as set forth below, this Court cannot say that the state court’s

approval of BPH’s decision to deny Petitioner parole was an

unreasonable application of the California “some evidence” standard,

nor that it was based on an unreasonable determination of the facts

in light of the evidence. See Hayward, 603 F.3d at 563. 

As an initial matter, the record shows that, at

Petitioner’s August 7, 2007 parole suitability hearing, BPH afforded

Petitioner and his counsel an opportunity to speak and present

Petitioner’s case, gave them time to review documents relevant to

Petitioner’s case and provided them with a reasoned decision in

denying parole. Doc. #4-1 at 35–40; Doc. #4-2 at 58–71. The record

also shows that BPH relied on several circumstances tending to show

unsuitability for parole and that these circumstances formed the

basis for its conclusion that Petitioner was not yet suitable for

parole and would pose a current unreasonable risk of danger to

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society or threat to public safety if released from prison. Doc.

#4-2 at 60–70; see Lawrence, 44 Cal. 4th at 1191, 1205; Cal. Code

Regs. tit. 15, § 2402(a) (stating that a prisoner determined to be

an unreasonable risk to society shall be denied parole). 

In its decision denying Petitioner parole, BPH

acknowledged Petitioner’s “very strong and somewhat widespread

family support,” but also noted that his parole plans “lack[ed]

specificity, particularly with [respect to] employment.” Doc. #4-2

at 62–63; see id. at 27–29. BPH observed that Petitioner had an

“unstable social history,” specifically noting his “gang affiliation

since he was 13 years of age.” Id. at 63; see Doc. #4-1 at 48–49. 

BPH further stated that Petitioner 

was a drop out in school and living at home at

this time. And wasn’t working, was getting

more involved in the gang, had gotten his young

girlfriend pregnant when she was approximately

15, so was basically a father when he was around

16 years of age when this life crime occurred. 

And basically, he was living with his girlfriend

and his baby with no viable means of support. 

Doc. #4-2 at 63. With respect to Petitioner’s institutional

behavior, BPH stated that Petitioner “has not sufficiently

participated in beneficial self-help and that his misconduct

includes one 128 counseling chrono that he incurred in April of 2006

for disrespect towards staff.” Id. BPH also noted that both

Petitioner’s April 2005 and April 2007 psychological evaluations

were “not totally supportive of release” and stated that the

psychologist who evaluated Petitioner in April 2007 observed that

Petitioner had only just “begun to program beginning in the early

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2000’s [sic] and [that he needed] to continue along this path.” Id.

at 63–64; see id. at 9–16. BPH also quoted from Petitioner’s April

2005 evaluation, in which the doctor observed, “[t]he lack of a

relationship between [Petitioner] and the victim suggests a random

nature to his violent act which may . . . increase [the] risk of

dangerousness.” Id. at 64; see id. at 16. 

Regarding the commitment offense, BPH stated that

Petitioner:

did commit the offense in a very cruel manner,

specifically, he made the choice to arm himself

with a loaded weapon, get in that car, and go

ahead and along with the driver and his other

crime partner. He also made the choice to shoot

that weapon, ended up taking [the] life of a 14-

year-old kid and then took off, and then

basically, I believe he was at large for close

to a year. [The crime] was carried out in a

very calculated manner, when, again, these three

. . . affiliated gang members decided to go into

that area where these rival gang people lived

and specifically wanted to hurt somebody all to

get even. It was a gang retribution on a lot of

different levels, so it really shows a total

disregard for human life or human suffering. 

They didn’t think in terms that somebody could

actually lose their life. They were just going

to hurt somebody. 

Doc. #4-2 at 66–67. 

BPH concluded the hearing by recommending that Petitioner

remain disciplinary free, continue to participate actively in selfhelp programming, including being able to tell BPH at subsequent

hearings how the programming has benefitted Petitioner, and

cooperate with clinicians in completing an upgraded psychological

evaluation. Doc. #4-2 at 71. 

Based on the entire body of evidence presented at

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Petitioner’s August 7, 2007 parole suitability hearing, the Court

cannot say that the state court’s approval of BPH’s decision to deny

Petitioner parole was an unreasonable application of the California

“some evidence” standard, nor that it was based on an unreasonable

determination of the facts in light of the evidence. See Hayward,

603 F.3d at 563. Petitioner therefore is not entitled to federal

habeas relief.

V

For the foregoing reasons, the Petition for a Writ of

Habeas Corpus is DENIED. Further, a certificate of appealability is

DENIED. See Hayward, 603 F.3d at 554–55. Petitioner has failed to

make “a substantial showing of the denial of a constitutional

right.” Id. (citing 28 U.S.C. § 2253(c)(2)). Nor has Petitioner

demonstrated that his claim is “debatable among reasonable jurists.” 

See Hayward, 603 F.3d at 555. 

The Clerk of Court shall terminate all pending motions as

moot, enter judgment in accordance with this Order and close the

file. 

IT IS SO ORDERED.

DATED 08/12/10 

THELTON E. HENDERSON

United States District Judge

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