In re Lizarraga CA2/8

Filed 4/23/13 In re Lizarraga CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

B242180 In re SERGIO RAFAEL LIZARRAGA, (Los Angeles County Super. Ct. No. BH 008245) on Habeas Corpus.

APPEAL from an order of the Superior Court of Los Angeles County, Patricia M. Schnegg, Judge. Reversed and remanded.

Kamala D. Harris, Attorney General, Jennifer A. Neill, Assistant Attorney General, Julie A. Malone and Charles Chung, Deputy Attorneys General, for Appellant.

Susan L. Jordan, under appointment by the Court of Appeal, for Respondent.

******

Petitioner Sergio Raphael Lizarraga pleaded guilty to second degree murder in 1994 and was sentenced to 15 years to life. The Board of Parole Hearings (Board) denied parole in May 2011 but the trial court ordered the Board to vacate its decision and to conduct a new parole hearing. We conclude that the Board’s decision is supported by some evidence (In re Shaputis (2011) 53 Cal.4th 192, 215 (Shaputis)) and therefore set aside the trial court’s decision. THE CRIME Petitioner, who was 24 years old in 1993 when the crime was committed, was married to Yesinia and became suspicious about the intentions of Jose De La Torre vis-à- vis his wife; petitioner also felt that he and Yesinia were drifting apart. He was absorbed in his work and did not pay enough attention to Yesinia and his young son. When Yesinia told him she was going to a party, petitioner thought that she was going to see De La Torre. In fact, there was nothing going on between De La Torre and Yesinia. Petitioner disguised himself and armed himself with a gun. (Petitioner gave two explanations for the disguise. One was that he wanted to deflect suspicion on someone else, the other was that he didn’t want De La Torre and Yesinia to recognize him.) He encountered De La Torre outside the latter’s workplace, which was an automotive stereo shop on Whittier Boulevard in Los Angeles. He asked De La Torre whether he liked to “mess around with married women.” The answer was, “Yes, so that I could see the stupid face of their husbands.” Petitioner was in a jealous rage and thought that De La Torre was talking about him. He took out the gun and shot De La Torre four times at close range. Petitioner fled but was apprehended shortly after the shooting. THE STANDARD OF REVIEW “Accordingly, we conclude that the judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law, but that in conducting such a review, the court may inquire only whether some evidence in the record before the Board