Wednesday, February 6, 2008
Court of Appeal Upholds Denial of Parole in Allegedly Racist Murder
By a MetNews Staff Writer
Gov. Arnold Schwarzenegger acted within his authority when he denied parole to a San Diego-area man convicted of a murder that prosecutors alleged was based on the victim’s race, the Fourth District Court of Appeal ruled yesterday.
Justice Cynthia Aaron, writing for Div. One, said the governor’s conclusion that Joseph Rozzo’s crime was so “atrocious” and “shocking” as to render him an unreasonable parole risk in spite of his positive prison record meets the deferential “some evidence” standard of review.
The justice also rejected Rozzo’s claim that the governor failed to give his case the individualized consideration that the state Constitution entitles him to. She noted that the governor issued a three-and-a-half page statement of reasons for denying parole, and also cited the statutory presumption that a public officer has performed his duties.
Rozzo is serving a 16-year-to-life sentence for second degree murder in the 1980 death of Richard Heggie. Evidence presented at his parole hearing, and summarized by the governor, showed that he and several other men abducted Heggie, who was African American, and that Rozzo and one of the others, chased Heggie when he tried to get away and beat him to death while uttering racial slurs.
Heggie’s body was later found in a rural area of San Diego County. According to testimony at the trial, Rozzo boasted of the killing, saying he had shoved his thumbs into the victim’s Adam’s Apple, causing it to burst.
A pathologist testified that the condition of the body was consistent with Rozzo’s boast, and that the cause of death was injury to the neck and head areas.
Rozzo was charged with first degree murder with special circumstances of murder by torture, racially motivated murder, and murder during a kidnapping. The jury found him guilty of a lesser charge of second degree felony murder during the course of a kidnapping.
The Court of Appeal affirmed in an unpublished opinion, although a concurring justice argued that Rozzo should have been convicted of first degree murder based on premeditation or torture.
The parole board found Rozzo unsuitable for parole on 10 occasions between 1990 and 2005. Following his 11th hearing, in 2006, the board found that he was a reasonable parole risk because he had a good prison record, had matured with age, received a high school equivalency diploma, and participated in self-help and vocational programs.
But Schwarzenegger, exercising his authority under Proposition 89, overruled the board and authored his own decision denied parole. He called the crime “horrific” and concluded that, while the facts of the offense were sufficient in and of themselves to deny parole, there were other grounds for denial—prior convictions for various offenses “that escalated in severity,” and several prison infractions, although the governor acknowledged that all were more than 20 years old.
Schwarzenegger also cited Rizzo’s refusal to acknowledge that the crime was racially motivated and his continuing insistence that he would not have committed the crime if he was sober at the time.
Aaron rejected the contention that the governor violates due process when a denial of parole is based on facts that were rejected by the jury. While the governor’s review is limited to the record before the parole board, the justice explained, he is not bound by the jury’s factual determinations.
The case is In re Rozzo, 08 S.O.S. 884.
Copyright 2008, Metropolitan News Company