Metropolitan News-Enterprise


Friday, December 12, 2008


Page 1


C.A. Orders Release of Septuagenarian Murderer on Parole


By a MetNews Staff Writer


A 77-year-old prisoner, convicted of the 1989 murder of his ex-wife, must be released on parole because there is no evidence that he represents a current threat to public safety, the Court of Appeal for this district ruled yesterday.

Div. Three granted a writ of habeas corpus to Zenaido Aguilar, who was arrested in 1989 and convicted of second degree murder in 1991.

The victim, Roberta Aguilar, married him in 1977, but the marriage was annulled in 1983. The parties, however, had what the court described as an on-again, off-again relationship after that.

The relationship was tumultuous. The court explained that there were frequent disputes between Aguilar and his ex-wife and her son, who died in 1987.

She blamed Aguilar for her son’s death—which occurred while he was riding a motorcycle purchased with earnings from a job Aguilar got for him—and said she was going to “get” him and “see him burn in Hell.” He twice had her committed for psychiatric treatment, and she threatened to burn his trailer, where she frequently visited him overnight, during one of those commitments.

That trailer was destroyed by fire in February 1989 while Roberta Aguilar was sleeping in it. He was quickly arrested after she claimed he started the fire; she died of her injuries two months later.

He denied any involvement, and said he had left the trailer before the fire because they were arguing and had spent the night in his car. Charged with murder and arson, he waived trial by jury and was acquitted of arson but convicted of second degree murder and sentenced to 15 years to life in prison.

His conviction was affirmed by the Court of Appeal in an unpublished opinion in 1994.

The parole board, after three prior denials, found Aguilar suitable for release in April 2006. Gov. Arnold Schwarzenegger, however, vetoed parole, and Los Angeles Superior Court Judge Steven Van Sicklen denied Aguilar’s petition for writ of habeas corpus.

But Justice Patti Kitching, writing for the Court of Appeal, said the evidence was overwhelming that Aguilar should be released.

She wrote:

“Aguilar is a physically disabled, visually impaired, elderly man with no current or past serious mental illness.  Apart from the commitment offense, there is no evidence that Aguilar has committed a violent act in or out of prison for a period of more than 50 years.  Further, Aguilar has realistic parole plans to stay with a family member, and to support himself financially with his pension and social security payments.  In light of his parole plans, behavior in prison, mental stability, pre-incarceration history, health, and age, Aguilar does not pose a risk to public safety greater than the average citizen.”

The justice noted that the primary reason cited by the governor for denying parole was the aggravated nature of the murder. But that alone cannot justify denial of parole where the circumstances give no indication that the inmate might harm someone else.

Kitching rejected the governor’s findings that Aguilar’s prior criminal record—juvenile offenses of battery and burglary in the 1940s and a 1954 marijuana conviction, along with drunk driving offenses in 1957 and 1972—also support a denial of parole. Aguilar, she noted, has been “clean and sober” for years, his crimes are decades old, and his commission of two non-violent rules violations in recent years do not amount to “serious misconduct in prison,” which is a predictor of future dangerousness under parole board regulations.

The justice also rejected the governor’s finding that the district attorney’s opposition to parole supports denial. Kitching noted that the only reason cited by the district attorney was that Aguilar continues to deny responsibility for the crime, and cited a statute that prohibits the board from requiring an admission of guilt as a condition of parole.

Attorneys on appeal were Steve M. Defilippis of Picone & Defilippis, by appointment of the court, for Aguilar and Deputy Attorneys General Heather Bushman, Jessica N. Blonien, and Lora Fox Martin for the state.

The case is In re Aguilar, B203595.


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