Personal Restraint Petition Of Manuel Parejo

• Court: Court of Appeals of Washington
• Decided: April 17, 2023
• Docket: 84238-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint Petition of: No. 84238-2-I

MANUEL PAREJO, DIVISION ONE

UNPUBLISHED OPINION Petitioner.

DÍAZ, J. — Manuel Parejo brings a personal restraint petition, appealing

revocation of his parole by the Indeterminate Sentence Review Board (ISRB or the

Board). He argues that the Board’s underlying finding that he violated two

conditions of parole (associating with a known drug user and his unsuccessful

discharge from sex offender treatment) were an abuse of discretion. We conclude

the Board did not abuse its discretion.

I. FACTS

A. Parejo’s Prior History

In 1978, Manuel Parejo was convicted of rape and kidnapping, both in the

first degree and both while armed with a deadly weapon. A married couple picked

him up while he was hitchhiking. Once in their truck, he threatened them with a

Citations and pin cites are based on the Westlaw online version of the cited material. No. 84238-2-I/2

gun and forced them to drive him to a park. There, he tied up the husband, then

raped the wife. Parejo was sentenced to a term of 180 months to life.

Between the 1970s and 90s he was intermittently incarcerated and serving

parole, then was re-sentenced and incarcerated. 1 After 30 years of uninterrupted

incarceration, he was granted parole on September 17, 2020. His release was

subject to the rules and conditions of parole and community custody under the

supervision of a Community Correction Officer (CCO).

The relevant conditions of his release were:

E. You must not associate with known drug users or sellers, except in the context of a chemical dependency treatment program or drug support group . . . or other therapeutic settings approved by the CCO.

G. You must enter into, follow all rules, successfully participate in, and complete the community phase of the Sex Offender Treatment and Assessment Program . . .

J. You must not engage in a romantic or dating or sexual relationship without your CCO’s prior permission. You must disclose your status as a sex offender and the nature of your offending to include unadjudicated victims, to anyone with whom you intend to begin such a relationship. The disclosure must be verified by the CCO.

Parejo was released from confinement and approved to live with his sister,

her husband, and her son.

1 For more history of the administration of Parejo’s sentence, see, Matter of Parejo,

5 Wn. App. 2d 558, 561, 428 P.3d 130 (2018).

2 No. 84238-2-I/3

B. Events Leading to Re-Arrest and Hearing

The following facts are undisputed, except where indicated.

On Saturday, May 22, 2021, Parejo and Robert King (a friend, also serving

on parole) were driving. They picked up a woman named “Rebecca,” 2 who flagged

them down and asked for help.

While in the car, Parejo told Rebecca he was on very strict parole and had

to tell his CCO everything. Rebecca asked to be taken to her friend’s house. After

attempting to find it, they gave up. Rebecca told them she really needed to leave

the camp where she had been staying because “sometimes a couple guys would

not let her leave that area.”

Parejo described that he observed Rebecca was “pretty dirty” and he asked

her if she was homeless, which she appeared to confirm. Parejo offered to let

Rebecca “clean up” at his sister’s house and get a good meal, for which he would

need his sister’s permission. Parejo testified he asked Rebecca if she had drugs

on her, due to his conditions of parole. She said no.

Parejo, his sister, and his nephew all described Rebecca needing help

walking down the hallway and to the shower. Then, after Rebecca was taken to

the shower, Parejo and his nephew heard her fall down, went to check on her, and

2 Rebecca’s last name is unknown or not agreed upon by the parties, who also

refer to her as “Rebecca” in briefing.

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helped her up. Parejo’s sister testified that she saw Parejo washing Rebecca’s

foot with a rag, and she “took over” from him.

Parejo offered Rebecca his bed. He said he spent his time in his room,

sitting or laying on or near the bed. Parejo’s nephew was also present and testified

in a limited fashion to the same.

“A couple times on Saturday” Parejo tried to call his CCO who had an out-

of-office voicemail saying he would return May 10th. Parejo did not leave a

message, because he did not think he could, due to an out-of-office voice message

with a date that had since passed. Parejo continued to try calling his CCO the next

day, to no avail.

Late in the morning of Sunday, May 23, Rebecca told Parejo she was a

methamphetamine user and wanted to “clean up” and “get some help.” At some

point that same day, she told Parejo she wanted to leave.

Parejo described that, also Sunday night, he was in his room where

Rebecca slept under the covers. He testified to alternating between being in his

chair and sleeping on the bed, “never under the covers.”

During this time, Parejo claimed he wanted to make a “disclosure” to his

CCO and take Rebecca to his CCO to “hear what she had to say.” He contended

nothing sexual occurred, and that Rebecca had “medical problems.”

On the morning of Monday, May 24, Parejo texted his CCO:

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I very much need to speak with you & bring you up to speed. I come in on the 25th. And need to bring in my lady for a disclosure. Please don’t slow walk me on this. I have been a good boy. HELP!”

At some point, shortly after sending the text, Parejo left a voicemail for his

CCO saying the “disclosure” was no longer necessary because Rebecca wanted

to “go back to drugs.” Parejo texted his CCO a second time and informed him a

disclosure was no longer necessary. Parejo stated he never saw Rebecca use

drugs, but he also told his CCO that “he had found paraphernalia,” which neither

independently verified.

Later that day, Parejo’s CCO arrived at the residence and spoke with

Rebecca. Both the CCO and Parejo describe that, when the CCO arrived at the

residence, Parejo had to help Rebecca sit up in bed. The CCO described Rebecca

as not coherent or observed her as semi-conscious. At some point when the CCO

was at the residence, Rebecca stripped off her own clothes and said “everyone

was a rapist.”

Parejo’s CCO asked Parejo what sort of contact took place between them

and Parejo said they “kissed and hugged,” but nothing further. Before the ISRB,

Parejo disagreed, characterizing the kissing as a “peck on the forehead.” He also

claimed that, when he said he “hugged” her, he meant he was guiding Rebecca

down the hallway as she was unable to walk.

5 No. 84238-2-I/6

CCO further testified Parejo stated he thought he had to disclose a

relationship to his CCO only if he intended to have sex with the subject. Then

Parejo told the CCO that the relationship was not romantic, and disagreed with the

CCO’s understanding of the condition on parole. During that discussion, Parejo

and the CCO discussed whether they thought Rebecca had used

methamphetamine or heroin, but no one contested she had used drugs recently.

The CCO placed Parejo under arrest. Approximately three weeks later, on

June 10, 2021, Parejo was unsuccessfully discharged from certified sexual

offender treatment program (CSOTAP).

C. ISRB Hearing

On July 15, 2021, the ISRB held a hearing, presided by an ISRB board

member, to evaluate Parejo’s sentence and parole. At issue was whether Parejo

violated parole conditions E, G, and J by:

1. Entering a romantic or sexual relationship without prior approval from Parejo’s CCO on or about May 22, 2021;

2. Associating with a known drug user on or about May 22, 2021; and

3. Being unsuccessfully discharged from his CSOTAP.

During the hearing, Parejo admitted that, by Sunday, May 23, when

Rebecca was at his sister’s house, he knew she was a “meth user” and stayed

with him “Sunday night into Monday.”

6 No. 84238-2-I/7

The examiner found that there was inconclusive evidence regarding

whether Parejo entered into a romantic or sexual relationship with Rebecca.

Therefore, he was found not guilty on violation 1. However, the examiner found,

based on a preponderance of the evidence, Parejo was guilty of violations 2 and

3 for associating with a “known drug user” and for exhibiting concerning behavior

leading to his unsuccessful discharge from his sex offender community treatment

program.

The examiner noted that, after reviewing the CSOTAP termination, the

termination was not about a romantic or sexual relationship, rather Parejo’s

physical contact and continued close proximity with a person who had a very

limited ability to give consent.

In a final decision of the Board member dated July 19, 2021, Parejo’s parole

was revoked. Approximately two weeks later, the ISRB affirmed the decision and

set a new minimum term of confinement of 36 months. Parejo now brings this

personal restraint petition arguing the ISRB’s findings for violations 2 and 3 were

an abuse of discretion. 3

II. ANALYSIS

A. Standard of Review

3 For clarity’s sake, violations 2 and 3 will herein after be referred to as violations

1 and 2, following the parties’s briefing.

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ISRB decisions setting a new minimum term are reviewed for an abuse of

discretion. In re Dyer (“Dyer III”), 175 Wn.2d 186, 196, 283 P.3d 1103 (2012)

(citing In re Pers. Restraint of Locklear, 118 Wn.2d 409, 418, 823 P.2d 1078

(1992).

This court reviews ISRB decisions with substantial deference. Id. (citing In

re Pers. Restraint of Whitesel, 111 Wn.2d 621, 628, 763 P.2d 199 (1988) (footnote

omitted); In re Pers. Restraint of Ecklund, 139 Wn.2d 166, 170, 985 P.2d 342

(1999)). Washington courts have often concluded that courts “are not a super

[ISRB] and will not interfere” with an ISRB determination unless the ISRB has

abused its discretion. Id.

An abuse of discretion may be found where the ISRB “fails to follow its own

procedural rules for parolability hearings” or where the ISRB bases its decision on

speculation and conjecture only. Id. (citing In re Dyer (“Dyer II”), 164 Wn.2d 274,

286, 189 P.3d 759 (2008)).

The petitioner bears the burden to prove the ISRB abused its discretion. Id.

(citing In re Pers. Restraint of Addleman, 151 Wn.2d 769, 776, 92 P.3d 221

(2004)); see also, RAP 16.5.

The ISRB “shall give public safety considerations the highest priority when

making all discretionary decisions on the remaining indeterminate population

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regarding the ability for parole, parole release, and conditions of parole.” RCW

9.95.009(3).

1. Violation 1: Associating with a Known Drug User

Parejo contends the ISRB’s revocation of his parole for violation 1,

association with a known drug user, was an abuse of discretion. We conclude the

ISRB did not abuse its discretion in finding that Parejo knew Rebecca used drugs

and stayed in her presence for at least one more night.

a. Law

“A community custody condition is valid if a person of ordinary intelligence

can understand what behavior a condition forbids, given the context in which its

terms are used.” State v. Houck, 9 Wn. App. 2d 636, 643, 446 P.3d 646 (2019)

(citing State v. Hai Minh Nguyen, 191 Wn.2d 671, 679, 425 P.3d 847 (2018)).

In Houck, this court examined a condition of release requiring a parolee to

avoid associating with “known drug users,” holding “the condition does not

explicitly require further definition or clarification from a CCO and the term ‘known

drug users/sellers’ effectively notifies a person of ordinary intelligence who needs

to be avoided.” Houck, 9 Wn. App. 2d at 645. “The term ‘known’ qualifies that the

condition prohibits the offender's knowing contact with drug users and sellers.” Id.

(citing In re Pers. Restraint of Brettell, 6 Wn. App. 2d 161, 170, 430 P.3d 677

(2018); United States v. Vega, 545 F.3d 743, 749-750 (9th Cir. 2008)). “By limiting

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the condition’s reach to those known by the offender, the condition provides fair

warning of proscribed conduct and meaningful guidance to protect against arbitrary

enforcement.” Houck, 9 Wn. App. 2d at 645 (emphasis added).

b. Application of law to fact

Parejo claims that (1) he did not know Rebecca used drugs and (2) that, if

he did, she was a past drug user because she stated she did not want to use drugs

upon leaving the encampment. 4 It is not an abuse of discretion for the ISRB board

to review the available evidence and reject these arguments.

The ISRB heard testimony that Rebecca was impaired from the minute he

picked her up near the homeless encampment, commenting she seemed “off,” was

having trouble walking and bathing, and mentioning the “power from Eden” at her

former encampment. Even two days later, when interviewed by the CCO, Rebecca

had trouble sitting up in bed and was not coherent or observed in a semi-conscious

state.

Furthermore, Parejo testified that, while he believed she was trying to stop

using drugs when he picked her up on Saturday, she told him she wanted to “go

4 In making these arguments, Parejo cites to cases where parolees challenge the

restriction of “associating with known drug users” as unconstitutionally vague. That argument would facially fail on the law, so instead we will consider Parejo’s first argument (that the ISRB abused its discretion in finding he knew Rebecca used drugs), rather than considering the argument to be an objection to the condition itself.

10 No. 84238-2-I/11

back to drugs” again no later than Sunday morning. In other words, by at least

Sunday, he knew she was a drug user, both past and future. Moreover, Parejo

admitted he found her drug paraphernalia. In short, Parejo knew she was a “meth

user” and stayed with him “Sunday night into Monday.”

For all these reasons, it is far from “speculation and conjecture” to conclude

he was associating with a known drug user. Dyer II, 164 Wn.2d at 286. Indeed, it

would be an exercise in speculation (and a very fine line draw) to find that he was

not associating with a drug user because she may not have used on one of the

three days they were together.

As such, it was not inconsistent with the Board’s procedural rules or

speculative for the ISRB to conclude Parejo knew Rebecca had recently used and

planned to use drugs. Therefore, the ISRB’s finding of violation 1 was not an abuse

of discretion.

2. Violation 2: Unsuccessful Discharge from CSOTAP

Parejo next argues that the ISRB abused its discretion in finding violation 2

because he was discharged from CSOTAP. We disagree and conclude the ISRB

did not abuse its discretion in making this finding.

As stated earlier, the ISRB abuses its discretion when it fails to follow its

own procedural rules for parolability hearings or bases its decision on speculation

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and conjecture only. Dyer III, 175 Wn.2d at 196 (citing Dyer II, 164 Wn.2d at 286).

Further, this court “must find the ISRB acted willfully and unreasonably to support

a determination that the parolability decision is arbitrary and capricious.” Matter of

Brashear, 6 Wn. App. 2d 279, 286, 430 P.3d 710 (2018) (quoting Dyer II, 164

Wn.2d at 286). Again, Parejo bears the burden of showing the ISRB abused its

discretion. Dyer III, 175 Wn.2d at 196. (citing Addleman, 151 Wn.2d at 776).

More specific to this claim, “Throughout [the parole revocation] process, the

ISRB maintains broad discretion over early release or transfer to community

custody, with public safety as its paramount concern.” Simon v. Murphy, No. C12-

0979JLR-MAT, 2013 WL 2155658, at *8 (W.D. Wash. May 16, 2013) (court order)

(quoting Dyer III, 175 Wn.2d at 286). “For this reason, the ISRB may consider a

sex offender’s lack of treatment when making decisions about release.” Id.

(quoting Dyer III, 175 Wn. 2d at 199). In other words, “settled law establishes that

the ISRB may consider the offender’s failure to obtain treatment.” Dyer II, 164

Wn.2d at 288.

Moreover, our Supreme Court has “adopted the position that ‘the first step

toward rehabilitation is ‘the offender's recognition that he was at fault.’’” Id. (citing

Ecklund, 139 Wn.2d at 176). And, it has held that the unparolability can be justified

by, among other factors, a putative parolee’s “minimization of his problems, and

the events surrounding his” violation. Dyer III, 175 Wn. 2d at 199.

12 No. 84238-2-I/13

Parejo argues that he was discharged from CSOTAP based on his CCO’s

statement that he had entered into some kind of romantic or sexual relationship

with Rebecca (formerly violation 1), a condition for which the ISRB found him not

guilty. He claims the ISRB thereby engaged in circular reasoning.

His argument that he was unsuccessfully discharged from CSOTAP for a

condition which he was found innocent does not hold water for two reasons: (a)

because he was discharged from CSOTAP for other reasons, which did not

depend on the finding that Parjeo entered into a romantic or sexual relationship

with Rebecca; and (b) failure to fully participate in and follow the rules for CSOTAP

are independently grounds for violation of his conditions of parole.

As to the former, the treatment provider’s discharge report does not say that

he was being discharged from the program merely because he entered into a

romantic or sexual relationship. Rather, the treatment provider reported that

Parejo:

• admitted “he was aware she was under the influence of drugs”;

• “failed to recognize what should have been obvious choices such as calling the police or removing himself from a potentially dangerous situation”;

• “did not see anything wrong with having physical, sexual contact with someone who appeared to be under the influence of drugs;

• “appears at least in part to be driven by preoccupation with sex”;

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• “disclosed that he had physical contact to include kissing and helping to bathe her.”

The provider concluded that he discharged Parejo from treatment because of

“admitted behaviors which involved picking up a stranger/hitchhiker, physical and

potentially sexual contact with a woman who appeared to be incapacitated.” In

other words, Parejo was discharged for risky, predatory and “concerning”

behaviors, with someone who may not have “had the ability to consent,” even if

they resulted in only “potential” sexual contact.

For its part, the Board likewise distinguished between “potential” sexual

contact, on the one hand, and the reasons for his treatment discharge, as well as

the additional reasons provided by his CCO, on the other. Namely, the Board

found that his “‘unsuccess [sic.] discharge’ is a failure to fully participate in that

program and follow all the rules.” Further, the Board relied on the CCO’s

assessment that Parejo’s “lack of judgement,” “failure to grasp the offense related

nature of his current behavior,” and “high risk status” meant he was “no longer safe

to remain in the community.” Finally, the Board found that Parejo’s explanation to

the Board was an exercise in “minimizing and avoiding responsibility for his

behavior, offering little or no insight into the concerning risk related nature of his

own behavior.”

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In sum, Parejo did not cite to an ISRB policy or procedure the Board

violated. And, we conclude that ISRB did not act “willfully and unreasonably” in

reaching its parolability decision and, thus, it did not act in an “arbitrary and

capricious manner.” Brashear, 6 Wn. App. 2d at 286. Therefore, we conclude the

ISRB did not abuse its discretion.

For these reasons, Parejo had not carried his burden in establishing that

either of the ISRB’s findings of violations and its subsequent revocation of his

parole were not an abuse of discretion.

III. CONCLUSION

Therefore, we deny Parejo’s petition.

WE CONCUR: