Metropolitan News-Enterprise


Thursday, January 22, 2009


Page 1


Court Grants Parole to Man Who Murdered Girlfriend’s Ex-Lover


By STEVEN M. ELLIS, Staff Writer


The Fourth District Court of Appeal yesterday reversed the governor’s decision to deny parole to a man convicted of second degree murder over a violent 1991 confrontation with his then-girlfriend’s volatile former lover.

Rejecting Gov. Arnold Schwarzenegger’s conclusion that David Vasquez posed an unreasonable risk to the public, Div. One reinstated a decision by the Board of Parole Hearings funding him suitable for release after 16 years in prison.

The board had reached the opposite conclusion in 2006, citing Vasquez’s positive behavior in prison and the “significant stress” he had suffered from prior harassment, intimidation and assault by the victim, Miguel Alarcon.

But Schwarzenegger reversed the decision, finding that the murder involved some level of premeditation, and that Vasquez exhibited exceptionally callous disregard for human suffering by continuing to struggle with Alarcon after shooting him twice at the end of a car chase.

Vasquez and Alarcon were both romantically involved with Maria Roth, who began dating Vasquez around the time her long-time relationship with Alarcon ended.

Black Eyes

Alarcon became angry upon learning of Roth’s new boyfriend in November 1990, and later confronted and beat Vasquez, leaving him with two black eyes, a swollen nose and a broken wrist.

Vasquez tried to avoid Alarcon by staying at his brother’s house, but later moved with Roth to his sister’s house after his car was vandalized and its contents—later found in Alarcon’s garage—were taken.

Roth warned Vasquez that Alarcon was crazy and tended to get violent when drunk or on drugs, relating one incident when police caught him with a rifle as he went to hurt a perceived rival. The warnings scared Vasquez, who obtained the pistol from a friend, but later returned it.

During December 1990, Roth met with Alarcon and had sex with him twice, but was back with Vasquez by the new year. However, Alarcon stole her car and only agreed to return it if she broke up with Vasquez, and later threatened to shoot both her and Vasquez that night.

Car Chase

Vasquez borrowed the gun again, and when Alarcon later found the couple, Vasquez had Roth leave the car to hide and drove off with Alarcon in pursuit.

The chase ended after Alarcon rear-ended Vasquez’s car, and Vasquez got out and fired at Alarcon as he attempted to leave his vehicle. A few seconds later, Vasquez fired a second shot and the men started fighting.

Alarcon died from one of the gunshot wounds, and his blood and urine had traces of methamphetamine and a 0.20 blood alcohol content at the time of his death.

Vasquez left town, but returned a few days later and confessed claiming self-defense. He told police he had picked up the pistol after knocking it from Alarcon’s hand, and then fought Alarcon after the shots until he slumped down.

The police released Vasquez, but arrested him later when Roth accused him of murder after a quarrel.

After the governor overturned the board’s decision on parole, Vasquez filed a habeas corpus petition alleging Schwarzenegger’s decision was arbitrary and capricious, but San Diego Superior Court Judge George W. Clarke denied the writ, concluding some evidence supported the decision.

A panel of the Fourth District then held the decision was not supported by the record, concluding that the appropriate inquiry was not whether there is some evidence to support individual suitability or unsuitability factors, but whether there is some evidence supporting the ultimate decision that the prisoner will pose an unreasonable risk of danger to society if released from prison.

The California Supreme Court granted review, and ultimately ordered reconsideration in light of its decisions in In re Lawrence (2008) 44 Cal.4th 1181 and In re Shaputis (2008) 44 Cal.4th 1241 that the board must cite “some evidence” that a prisoner is currently dangerous, not merely some evidence that the underlying offense was particularly egregious or that some other unsuitability factor applies.

No Evidence

Applying this standard, Justice James A. McIntyre arrived at a conclusion similar to the Court of Appeals’ earlier decision, and wrote that no evidence showed how long or vigorously Vasquez beat Alarcon after he stopped fighting.

“Any murder is atrocious and hitting and kicking an unconscious opponent shows a callous disregard for human suffering, but the [law] requires some evidence of exceptional callousness…,” he wrote. “Viewing the overall nature of this second degree murder, it does not appear to be particularly egregious and it appears to be less egregious than most.

McIntyre similarly swept aside the governor’s argument of possible premeditation, pointing out that the inquiry was whether circumstances predicted current dangerousness many years after commission of the offense.

Noting Vasquez’s stated remorse and acceptance of responsibility for his behavior, and that Alarcon’s family had forgiven Vasquez and blamed the crime on the men’s relationship with Roth, McIntyre wrote that “[w]hile we agree that there are some crimes so heinous that the nature of the commitment offense may render the inmate unsuitable for parole…this is not one of those crimes.”

The justices also declined to remand the matter to the governor for further consideration.

“Our review indicates that the record does not contain some evidence to support the Governor’s decision and further consideration by the Governor will not change this fact,” he said.

Justices Judith L. Haller and Alex C. McDonald joined McIntyre in his opinion.

The case is In re Vasquez, D051015.


Copyright 2009, Metropolitan News Company