Monday, April 11, 2011
Court Upholds Tenth Parole Denial Arising From 1978 Shooting
By KENNETH OFGANG, Staff Writer
Sufficient evidence supported the Board of Parole Hearings’ decision not to release a man convicted of kidnapping a liquor store clerk and shooting him five times at point blank range, the Fourth District Court of Appeal ruled Friday.
Div. One also upheld the constitutionality of a statutory amendment that requires parolees, including those whose crimes were committed before the amendment’s enactment, to wait three years or more for another hearing after a finding of unsuitability for release.
The board voted in 2009, for the 10th time, to deny release to Vincent Russo, a onetime Vista resident.
According to preliminary hearing testimony, Russo stuck a gun in Dale Eaton’s face, robbed the cash register, ordered him into Russo’s car, and after driving into a rural area, ordered him out of the car and shot him twice in the head, as well as in his arms and face. He drove off after seeing an approaching vehicle.
The robbery occurred in the San Diego County community of Ramona on Dec. 22, 1978. The gun was later traced to a theft at the Camp Pendleton Marine Base, where Russo had been stationed, and the man found with the stolen guns admitted that he and Russo had committed two robberies together.
He also tied Russo to the shooting of Eaton.
Russo left the state after the shooting, moving around the United States and Canada before being arrested in 1985 in Pennsylvania, where he was living under an assumed name. He had been on the FBI’s “10 Most Wanted” list for six years before being captured.
Following the preliminary hearing, he pled guilty to kidnapping to commit robbery and attempted murder and was sentenced to life imprisonment with the possibility of parole by then-San Diego Superior Court Judge Daniel Kremer, later presiding justice of Div. One and now retired.
Following the 2009 denial, he brought a habeas corpus petition, claiming the board lacked “some evidence” for finding that he was a current danger to the public. He also questioned the board’s decision, based on the 2008 Marsy’s Law initiative, to require him to wait until 2012 for his next hearing.
The grounds stated by the board for its ruling were that the crime was committed in an “especially heinous” manner, that Russo had an unstable social history that included drug and alcohol use, and that he refused to take responsibility and lacked insight into the seriousness of the crime. The last finding was based on Russo’s claim that he did not intend to harm Eaton, whom he wished “Merry Christmas” before he started firing, as well as on his having evaded detection for so long.
Justice Patricia Benke, writing for the Court of Appeal, acknowledged that the inmate’s prison record was “exemplary,” his plans for the future “reasonable” and his support system “strong.” But the board, she said, was entitled to conclude that the negative factors it cited outweighed those positive ones.
She cited Russo’s testimony that he committed the crime while dealing with his “triggers,” which he explained were “the stress, the anger, the frustration that was within me.” At the time he shot Eaton, he said, he thought Eaton was pulling at him and that this movement caused his weapon “to come across” and he fired.
The truth, he said, was “too blurry,” but he recognized that he did fire the weapon more than once and cleared it after the shooting.
The genuineness of Russo’s present expression of accountability, Benke wrote, “does not cure the inconsistency and ambiguity in his mental state and attitude. “
“In its role in protecting the public, the Board was required to look beyond petitioner’s deterministic explanation of his responsibility and his limited acceptance of legal accountability. The Board was required to evaluate whether petitioner’s mental state, that is, his attitude toward the crime, included a truthful appreciation of the wrongfulness of the acts. Without this assurance, the Board could justifiably conclude that if released, petitioner would be unable to exercise his personal judgment and conform his conduct to the law.”
As to the Marsy’s Law challenge, Benke said the application of the law to persons whose crimes preceded its enactment does not violate the ex post facto clauses, particularly since the initiative gives the board discretion to advance a hearing upon a written showing that the inmate is reasonably likely to prove current suitability.
Justice Judith Haller concurred in the opinion, while Justice Richard Huffman concurred separately.
Huffman said he found the lack-of-insight finding “difficult to accept” and questioned the application of the “amorphous” insight factor itself.
“It almost seems to be a talisman which is produced whenever a board, governor or court thinks a person should not be paroled, but lack anything other than historical facts, and an ugly crime. I can only hope the Supreme Court will have the opportunity to take up the question of the proper role of this nonstatutory factor for assessing suitability for parole. Until that happens I think we will continue to have grossly disparate applications of this concept in parole cases.”
Huffman joined in the result reached by the majority, however. “...I must agree that the Board and the majority could take Russo’s explanation of the crime in light of the nature of the crime and his former fugitive status to demonstrate some form of current risk.” He also joined in Benke’s analysis of the ex post facto issue.
The case is In re Russo, D057405.
Copyright 2011, Metropolitan News Company