Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. C24929
Lambden, J.
In 1990, petitioner Martin Barragan-Mendoza was convicted of the second degree murder of Antonio Sanchez Guizar, and sentenced to an indeterminate term of imprisonment of 15 years to life, with an additional four years because of his use of a firearm in the commission of the murder. In 2007, the Board of Parole Hearings (Board), having denied petitioner parole in 2002 and 2004, found him suitable for parole and set a parole date. The Governor, however, reversed the Board’s decision, concluding petitioner currently posed an unreasonable risk of danger to society. Petitioner filed a petition for a writ of habeas corpus with the San Mateo County Superior Court, which denied the petition, and subsequently filed a petition for writ of habeas corpus with this court. We deny the writ because there is “some evidence” (In re Lawrence (2008) 44 Cal.4th 1181, 1190–1191 (Lawrence)) to support the Governor’s conclusion.
BACKGROUND
Personal Background
According to a 1991 postconviction probation report, petitioner was born in Apatzingan, Michoacan, Mexico in 1966, the youngest of nine children. He grew up in the town of Chila, where he attended school for six years. Petitioner reported to the probation officer that his family, especially his mother, was liked in the town, that his mother was a deeply religious woman, and that neither of his parents drank alcohol.
In 1980, petitioner came to the United States and stayed with his sister in Oakdale, California, for six months before returning to Mexico. Two years later, he returned to the United States and settled in Redwood City. He worked in restaurants, then as a laborer for a tree service. He was undocumented; he said he applied for legal residence, but was unable to complete the application process. At the time of his arrest, he was working as a tree surgeon, and living with Lourdes Oseguera and their two children. After the murder, he fled, lived briefly with his sister in San Jose, and was arrested two months later.
Petitioner reported to the probation officer that he drank alcoholic beverages when he was with friends, but did not consider his alcohol use to be excessive. He also said “that when he frequented bars, he often used cocaine to counteract the affect of alcohol in order to be able to drive home.”
Criminal Record Prior to the Commitment Offense
The 1991 probation report also detailed petitioner’s criminal record prior to the commitment offense. In January 1987, petitioner was arrested for misdemeanor assault with a deadly weapon, which charge was reduced to a misdemeanor violation of Penal Code section 415.1, for disturbing the peace.
In May 1987, petitioner was arrested for, and later found guilty of, carrying a concealed weapon in a vehicle and carrying a loaded firearm, in violation of Penal Code section 12025, subdivision (a), and Penal Code section 12031, subdivision (a), respectively, both misdemeanors. Police found a loaded pistol and ammunition in a car in which petitioner was a passenger. Petitioner identified himself as “Arturo Gonzalez” at the time of his arrest.
In August 1988, petitioner was arrested for possession of heroin, identifying himself to police as “Arturo Gonzalez Hernandez.” This charge was later dismissed.
In January 1989, petitioner was arrested, and later found guilty, of a misdemeanor for driving under the influence in violation of Vehicle Code section 23152, subdivision (a), and received three years probation.
In October 1989, petitioner was arrested with another person, and later found guilty, of a misdemeanor violation of Penal Code section 12031 again, for carrying a loaded firearm. Police found petitioner pointing a handgun in the air. Petitioner received three years probation for the violation.
In March 1990, petitioner was arrested for felony possession of a controlled substance in violation of Health and Safety Code section 11350, which charge was pending at the time the probation report was prepared.
Also, according to the probation report, Department of Motor Vehicles records showed that petitioner’s driver’s license had been suspended, that he had one conviction for driving with a suspended license and driving under the influence, and that a charge for failing to appear remained pending.
The Commitment Offense
According to the 1991 probation report, on February 10, 1990, the victim, Antonio Sanchez Guizar (Sanchez), went to a crowded pool hall and bar in Redwood City, accompanied by his brother and two nephews. While Sanchez sat at the bar with a nephew, Hector Mendoza, who was petitioner’s cousin, engaged Sanchez’s brother in a conversation at the back of the bar. Sanchez was approached by Pablo Oseguera Mendoza (Pablo), also petitioner’s cousin, who pointed a handgun at Sanchez and demanded that he accompany him to the restroom. Sanchez refused and the two men struggled. According to witnesses, petitioner, then 24 years old, stood at a rear door of the pool hall and pointed a handgun at Sanchez’s back. When Pablo yelled, “Shoot him,” petitioner fired four shots into Sanchez’s back. As Sanchez fell, Pablo shot him several times as well. Everyone ran out of the bar before police came, and the suspects escaped.
Sanchez died of a gunshot to the head. He was shot eight times, four times in the back. According to the probation report, he was an innocent victim in a long-standing feud between the men of the Mendoza family, of which petitioner is a member, and the men of the Ramos family, which feud originated in their home village of Chila, Mexico. The original reasons for the feud were unknown, but it continued for years, with retaliation and revenge killings. It appeared that younger men who had no relationship to either of the feuding families had begun to participate in the violence, which occurred in San Mateo County and sometimes in San Francisco. Petitioner claimed that Sanchez’s family had joined ranks with the Ramos family, and that they had falsely presented themselves as peacemakers. Petitioner also said that the Ramos family had threatened to annihilate the Mendozas, including women, children, and “even the dogs.” Violence between the families had “become a way of life in their home village of Chila.” The investigating officer on the case found that Sanchez’s family was not directly involved in the feud and “were a peaceful and hard-working group who try to get along with everyone.”
Almost three months later, on April 30, 1990, petitioner was arrested in a San Jose bar. In his statement to police, he admitted that he was present during the shooting, but he denied that he shot Sanchez. Petitioner was subsequently convicted by a jury verdict of second degree murder in violation of Penal Code section 187, and a firearms special allegation was found true pursuant to Penal Code section 12022.5. The court sentenced petitioner to a term of 15 years to life for the second degree murder conviction and 4 additional years for the weapon enhancement.
Petitioner told the probation department at the time of his conviction that he did not shoot Sanchez, did not know any reason why he would, and that he was “an innocent man.” He said that he had been present in the bar when the shooting occurred, but only to watch television. His cousin, Pablo, was upset because he heard that the victim was looking for him. Petitioner said he was unarmed that night, and was in the bathroom when Pablo confronted Sanchez.
Petitioner continued to deny that he was involved in the murder until at least 2002. While he told his 2002 mental health evaluator that he was in the bathroom at the time of the shooting, he apparently admitted to the 2002 Board, “I shot the person.”
Petitioner’s Institutional Record
Petitioner’s institutional record at all times relevant to this petition was excellent. He was disciplinary free in prison and did not have any record of violence while incarcerated. He received one corrective “128A” because another inmate was found with a cassette tape belonging to him. He worked at a number of assignments, doing landscaping, working in the upholstery shop, and the furniture assembly shop. He received positive evaluations of his performance. For example, a supervisor stated that he was “a most excellent worker and keeps busy whenever he is needed,” and was a “diligent and exceptional worker.” He received other positive comments and evaluations as well.
Petitioner also participated in programs to improve his skills. For example, he completed training in the auto body and fender program, the vocational upholstery program, and a vocational landscaping program. He attended parenting classes and an eight-hour workshop on anger management. Most notably, he has participated in Alcoholics Anonymous for many years, and stated he had been sober throughout his imprisonment.
The record also indicates that he maintained close ties with his family, including his wife and children, and siblings. He received many letters of support since 2005 regarding his parole from his wife and daughters, nieces, nephews, brothers, sisters, father, uncle, sister-in-law, and friends. He received job offers, in either Mexico or the United States, from his father, brother, and a family friend.
Petitioner Evaluations
Petitioner was evaluated several times since 2002 by counselors and psychologists, and the resulting evaluations were reviewed by the Board and the Governor.
2002 Evaluation
Petitioner’s 2002 psychological evaluator, Clinical Psychologist Melvin Macomber, reported that petitioner said he came from a close family and enjoyed strong support from them, that his mother had died at the age of 51, and that his father was in his early 80's and living in Mexico. Petitioner was married, had two daughters, described his wife in very positive terms, and stated that they had a very good relationship. He had made a good institutional adjustment. He had vocational skills, was close to finishing his GED, was continuing taking educational courses, had completed the vocational auto body program, and planned to pursue work in that field when he was released. He had remained entirely disciplinary free over his 12 years of incarceration, which Macomber found to be a “remarkable achievement.”
Petitioner denied to Macomber that he had any prior experience with drugs other than cocaine on one occasion, denied he had a problem with alcohol abuse, and said he drank beer on the weekends, but not to excess. Macomber concluded that there was no indication of a substance abuse problem, although petitioner had been arrested for driving under the influence, and was attending Alcoholics Anonymous in prison because he liked the program.
Petitioner told Macomber that at the time of the shooting, he was sober and in the bathroom, heard shots, and ran out of the bar like everyone else there. He did not know the victim, but knew the victim’s older brother, with whom he had a good relationship, and his family was not involved in the feud between the Ramos and Mendoza families that had come to California from Mexico. Pablo was responsible for the shooting, and had fled to Mexico. Petitioner thought he had been convicted because he had been accused by someone at the bar. He was in possession of a weapon that night and, as a result, was considered the assailant. He carried the weapon because he had been shot in the stomach in 1985 in Mexico, and showed Macomber scars in his abdominal area from that shooting.
Macomber concluded that petitioner was “not an aggressive or violent person by nature. He has absolutely no mental health problems that would contribute towards violence potential. [¶]... [¶] He has come from a stable, intact family. He does not have a record of criminal behavior. He does not have a substance abuse problem. He is married and the marriage continues even under the stresses of his incarceration. He has good coping skills. There is no evidence of any psychological factors that would contribute toward the potential for violence. [¶] Assessment of dangerousness within the controlled setting of the institution is definitely below average. Assessment of dangerousness if released to the community would continue to be definitely below average.”
2004 Evaluation
In petitioner’s 2004 life prisoner evaluation, Counselor P. Bush reported that petitioner was attending Alcoholics Anonymous, and had remained disciplinary free. Petitioner denied any responsibility for the murder, and said that his cousin, Oseguera-Mendoza, was solely responsible. Bush concluded that, “[c]onsidering the commitment offense, prior record, and prisoner adjustment,... [petitioner] would pose a moderate degree of threat to the public at this time. [Petitioner] continues to deny any responsibility for the instant offense and has minimal preparations to return to the community. [Petitioner] should be commended for remaining disciplinary free his entire incarceration, though.”
2005 Evaluations
In petitioner’s life prisoner evaluation report for the November 2005 calendar, evaluator D. E. Larson indicated that petitioner told him in an interview that he was not responsible for the shooting, that his cousin was solely responsible, that petitioner’s family and the victim’s family were friends, and that he had no idea that his cousin was planning to shoot anyone when the murder occurred.
In a mental health evaluation prepared in October 2005, Psychologist John Rekart reported, similar to other evaluations, about petitioner’s background, family and marriage, his participation in prison programs, his positive institutional record, and his good mental health. However, contrary to previous information, Rekart reported that petitioner told him that since his mother’s death, he could not remember a day when he was sober before his incarceration. He said that he had been 15 years sober, and was attending Alcoholics Anonymous. Rekart further reported that petitioner “has informational chronos and laudatory chronos in his file regarding good progress and involvement in AA and NA... going all the way back to 1994. It appears that maybe this aspect of his involvement with alcohol was underreported in the past.”
Rekart also reported, for the first time in an evaluation, that petitioner took some responsibility for the shooting. Petitioner told Rekart that he was very drunk at the time of the shooting, and “may” have participated in it. He did not bring a gun to the bar because he was on probation, and he was “just so drunk” that he did not “remember very much,” but he did “remember being handed the gun.” He knew that he had previously stated that he was not involved and did not have a gun. He did not know his crime partners that well, having just met them in the bar, and he was afraid to talk at the jury trial for fear of his family’s safety. Rekart continued: “He stated that somebody told him that they saw him shoot somebody. He said that he just feels a lot of remorse and feels very bad that he may have shot someone. He doesn’t know if he did, but he felt bad that he was even there. He said he is not sure what he did, but being in the bar was bad.”
Rekart concluded that “alcohol use, immaturity, impulsivity and the inability to separate himself from problematic family issues played a role in the commitment offense. He appears to work hard to address these issues and they have improved with maturity and insight. He is now beginning to accept responsibility for his actions in the death of the victim and his remorse appears genuine. He is definitely interested in expanding his job skills and does so when available. [¶] Assessment of dangerousness within the controlled setting of an institution is seen as below average in comparison with other inmates. His history of substance abuse appears to be the only active risk factor, however, his insight into his behavior at the time of the crime is a good sign of his future adjustment. Also, he should continue both in his AA activities at this time and also to understand and develop more insight into the nature of the crime.”
Rekart stated that petitioner’s “[p]otential for future violence is lower than average compared to the average inmate should he continue to abstain from alcohol usage and continue in AA, which should definitely be a requirement of his parole if possible in Mexico. Random testing should also be apart [sic] of his parole planning.”
2007 Evaluations
In petitioner’s 2007 life prisoner evaluation report for the February 2007 calendar, evaluator Larson reported that petitioner’s summary of the crime “[r]emains the same as stated in the previous Board report for the November 2005 calendar. This reference suggests that petitioner again denied responsibility for the crime, although it is unclear.
Staff Psychologist Heather Mann prepared a life-term inmate evaluation for the Board, dated January 11, 2007, and characterized as an addendum to the 2005 Rekart report. She reported that petitioner continued to receive laudatory chronos for his work performance, self-help, and participation in Alcoholics Anonymous, and recounted his disciplinary free prison history, and high degree of motivation. While she did not state what petitioner specifically said about his involvement in Sanchez’s murder, she stated that “an appropriate level of insight was demonstrated through his description of... his life crime.” She also stated: “He demonstrates genuine remorse and true insight into the causative factors and impact of his crime, both on the victim’s family, his own family, and himself. He now understands that though alcohol was a driving factor in his participation in the crime that night, he recognizes the issues that led to excess use.”
She also reported that he likely would be deported to Mexico due to a hold by the Immigration and Naturalization Services, where he intended to relocate to his home state and reside with his father and wife. He would make a living raising cattle on his family’s farm, and continue his participation in Alcoholics Anonymous, as he was aware of a meeting and location 45 minutes away in the nearest city.
Mann assessed petitioner’s dangerousness within the controlled setting of an institution as below average in comparison to other inmates and, if he were released, as below average compared to other inmates, if he maintained his treatment and commitment to sobriety. In her view, since he recognized his alcoholism, which she indicated occurred very early in his participation in Alcoholics Anonymous, “he has shown remarkable effort in the areas of vocation, self-improvement, and his commitment to sobriety. He has managed to avoid any significant disciplinaries in the midst of a conflict-ridden environment. He has a realistic and well thought-out plan for parole and has been fortunate to have the support of his wife and two adult daughters throughout his incarceration. It is assumed that with his continued participation with Alcoholics Anonymous and the strides that he has made in self-awareness, that the gains that he has made in prison will be apparent in free society. Therefore, there is no evidence of mental health issues that would preclude routine release planning in this case.”
2007 Parole Board Review
Petitioner was denied parole after hearings in 2002 and 2004. He waived a hearing in 2006. At petitioner’s 2007 hearing, he told the Board that he had started drinking at 5:00 in the afternoon on the day of the murder. He drove himself to the bar, and was there drinking alone. He “drank at least like 18 to 20 Coronas.” While he was aware of the feud between what he characterized as initially a fight over political power between the Oseguera Ramos and Mendoza Oseguera families in his home village in Mexico, and stated that “[w]e are relatives to them,” he said that his family stayed neutral in these conflicts. On the night of the murder, he did not go to the bar with a weapon. One of “the relatives there... handed the gun to [petitioner] to back him, Pablo Oseguera when he was fighting with this person.” Later in the hearing, he was asked, “And who gave you whose gun? Did Hector [Mendoza] give you his?” Petitioner replied, “The driver had it. They have always got a person to drive for them then they keep them in the parking lot all the time. That’s what I heard.” Although he was concerned that the group had guns and looking for people, he got involved because he was drunk, and because they were saying “the way that things happen in the moment is very scary.”
Petitioner did not know they were to confront the victim. He heard from someone that the victim, whom petitioner did not know, was looking for the son of the Mendozas. Petitioner guided the man to Hector Mendoza and they started talking “about this kind of conflict.”
Petitioner knew that some of the people in the bar were his cousins, but he was by himself. One of the relatives, who he did not know other than by a nickname, handed him a gun and went to the bathroom where Hector was with the victim’s brother. That was when Pablo began struggling with the victim. Petitioner remembered firing one shot, because either Pablo or the victim were yelling. Petitioner continued: “And I was so scared. I was drunk, completely, you know, drunk when the other guy came out. The guy that handed me the gun came back right away when he heard all the yelling. And when I tried to just scare Antonio. But I didn’t know what to do with the situation. It was horrific, you know, very horrific scene at the moment, completely drunk.”
Petitioner also thought he was the first person to fire a shot. He thought four people were involved in the attack, including himself. When asked why he took the gun, petitioner stated: “I was scared, Sir, because they were telling, Pablo was yelling at me that they were the same people that had been killing our relatives in Mexico[.]” Petitioner denied that Pablo had any authority over him, and said: “I was completely scared with the situation because when he was yelling at me that he was from the same guy that was killing the members of the family. If I had been completely sane without any drinking then the outcome would be different.”
Petitioner told the Board he started drinking when his mother died, when he was maybe 14, drinking five or six beers just to get drunk. Petitioner also discussed his criminal record. His arrest for heroin possession for sale was a mistake, because he was at the house where the heroin was found, but had nothing to do with heroin. His 1987 arrest for gun possession was the result of his keeping a gun in his car for protection, because he had previously been shot outside a bar deliberately by people he did not know and he was scared. He said it was a “stupid thing to do.”
Petitioner said he was still married to Lourdes, who was “a very good woman, a hard worker” (having gotten married after he was arrested). His daughters were about 21 and 22 years old, and visited regularly. He was close to his brothers and sisters.
Petitioner said he realized he had a problem with alcoholism when attending Alcoholics Anonymous meetings. He only used cocaine once in his life, however, and never used marijuana.
The Board also discussed his positive prison history, including his participation in programs such as Alcoholics Anonymous, educational development, and solid work record. It reviewed Larson’s and Mann’s evaluations, and the discussions contained therein of previous evaluations. It discussed petitioner’s parole plans and family support as well.
The Board found that petitioner had no juvenile record of assaulting others, had maintained stable relationships with his family members over more than a decade, and had received frequent and consistent visits from family members throughout his many years of incarceration. He had maintained contact with his daughters, had obtained his GED, was taking college courses, had saved money, and sent some of it to his family. He had learned auto body repair and landscaping and received above average work reports. He had matured with age, decreasing the likelihood of recidivism, and his parole plan to assist his ill father at the family farm was adequate.
The Board also found that petitioner showed signs of remorse about the crime, and acknowledged his participation in it. It found that the psychological reports regarding him were favorable, provided that he remain sober, and that petitioner had an understanding of programs and principles of Alcoholics Anonymous. It considered the aggravated circumstances of the commitment offense and, in doing so, it referred repeatedly to petitioner’s rendition of events as if it were fact. The Board found petitioner suitable for parole, stating that it would insist, if he remained in the United States, that he go to Alcoholics Anonymous meetings and report to his parole officer regarding them, and urged him to continue his participation in the program if he were deported to Mexico.
The Governor’s Reversal of the 2007 Board’s Decision
Governor Arnold Schwarzenegger reversed the 2007 Board’s decision to parole petitioner on several grounds. The Governor stated that he had considered positive factors, such as petitioner’s nearly blemish-free prison misconduct record, his earning of a GED and other course work, his institutional work, and his participation in Alcoholics Anonymous and other programs.
However, the Governor concluded that these positive factors were outweighed by negative ones. These included that the murder was “particularly atrocious” because petitioner, as part of a family feud, had killed a man who was merely a friend of the rival family and not involved in the feud, shooting him several times at his cousin’s urging; that petitioner’s motive for killing Sanchez was trivial in relation to the magnitude of the crime he committed; that petitioner had shot the victim in a crowded pool hall, putting members of the public at risk; that there were questions about whether petitioner fully accepted responsibility for his actions because his version of events had changed significantly over the years, including his denial of responsibility in 2005 after he had told the 2002 Board that he had shot the victim, and his inconsistent statements about his drinking; that there were questions about petitioner’s explanation about how he became armed at the time of the murder, given his different statements on the subject; that the positive psychological reports were questionable in light of inconsistent findings regarding his alcoholism; and that his parole plan was problematic because it involved his return to the Mexican village that was the source of the family feud, which petitioner had admitted was a way of life there.
Petition for Writ of Habeas Corpus
The San Mateo County Superior Court rejected petitioner’s petition for writ of habeas corpus in January 2008. He subsequently filed a petition with this court on January 25, 2008. We issued an order to show cause on April 30, 2008, but subsequently, upon motion by respondent, temporarily stayed that order pending the California Supreme Court’s resolution of In re Lawrence, case No. S154018. The Supreme Court did so in Lawrence, supra, 44 Cal.4th 1181, which it issued on August 21, 2008. We subsequently dissolved our stay order.
DISCUSSION
Petitioner argues that the Governor’s reversal of the Board’s decision was arbitrary, not based on evidence, and violated his constitutional rights. We review the record to determine whether “some evidence” supports the Governor’s determination that petitioner remains a current, unreasonable risk to public safety pursuant to Penal Code section 3041. (Lawrence, supra, 44 Cal.4th at p. 1191; In re Shaputis (2008) 44 Cal.4th 1241, 1246 (Shaputis).) The Governor’s basis for reversal emphasizes the “particularly atrocious” nature of petitioner’s commitment offense in a crowded pool hall, his failure to fully accept responsibility for his actions based on his changing and inconsistent versions of events, and his similarly changing and inconsistent statements about his drinking. We conclude that “some evidence” supports the Governor’s conclusion that petitioner currently poses an unreasonable public safety risk and, therefore, affirm the Governor’s decision.
All statutory references herein are to the Penal Code unless otherwise stated.
“ ‘The applicable statutes provide that the Board is the administrative agency within the executive branch that generally is authorized to grant parole and set release dates. (§§ 3040, 5075 et seq.) The Board’s parole decisions are governed by section 3041 and title 15, section [2402] of the California Code of Regulations.... Pursuant to statute, the Board “shall normally set a parole release date” one year prior to the inmate’s minimum eligible parole release date, and shall set the date “in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public....” (§ 3041, subd. (a), italics added.) Subdivision (b) of section 3041 provides that a release date must be set “unless [the Board] determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.” (Italics added; [citation], fn. omitted.)’ (Lawrence, supra, 44 Cal.4th at pp. 1201–1202.)” (Shaputis, supra, 44 Cal.4th at p. 1256; see also Cal. Code Regs., tit. 15, § 2281 [“Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison].”) “ ‘Accordingly, parole applicants in this state have an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation.’ ” (Shaputis, at p. 1258.)
Title 15, section 2402, of the California Code of Regulations sets forth the factors to be considered by the Board in carrying out the mandate of the statutes. These factors include “the circumstances of the prisoner’s social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner’s suitability for release.” (Cal. Code Regs., tit. 15, § 2402, subd. (b).) Section 2402, title 15 of the California Code of Regulations is designed to guide the Board’s assessment of whether the inmate poses “an unreasonable risk of danger to society if released from prison,” and thus whether he or she is suitable for parole. (Id., § 2402, subd. (a).) It also lists several circumstances relating to unsuitability for parole—such as the heinous, atrocious, or cruel nature of the crime, or an unstable social background; and several circumstances relating to suitability for parole—such as an inmate’s rehabilitative efforts, demonstration of remorse, and the mitigating circumstances of the crime. (Id., § 2402, subds. (c), (d).) The regulation explains that the foregoing circumstances “are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel.” (Id., § 2402, subd. (c).) Furthermore, “[c]ircumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.” (Id., § 2402, subd. (b).)
The Governor’s power to review a decision of the Board is set forth in article V, section 8, subdivision (b) of the California Constitution, which states: “No decision of the parole authority of this State with respect to the granting, denial, revocation, or suspension of parole of a person sentenced to an indeterminate term upon conviction of murder shall become effective for a period of 30 days, during which the Governor may review the decision subject to procedures provided by statute. The Governor may only affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider. The Governor shall report to the Legislature each parole decision affirmed, modified, or reversed, stating the pertinent facts and reasons for the action.”
The statutory procedures governing the Governor’s review of a parole decision pursuant to article V, section 8 subdivision (b) of the California Constitution, are set forth in Penal Code section 3041.2, which states: “(a) During the 30 days following the granting, denial, revocation, or suspension by a parole authority of the parole of a person sentenced to an indeterminate prison term based upon a conviction of murder, the Governor, when reviewing the authority’s decision pursuant to subdivision (b) of Section 8 of Article V of the Constitution, shall review materials provided by the parole authority. [¶] (b) If the Governor decides to reverse or modify a parole decision of a parole authority pursuant to subdivision (b) of Section 8 of Article V of the Constitution, he or she shall send a written statement to the inmate specifying the reasons for his or her decision.”
“The Governor is subject to the same standards as those that apply to the Board.... [T]he Governor’s interpretation of a documentary record is entitled to deference. [Citation.] Although ‘the Governor’s decision must be based upon the same factors that restrict the Board in rendering its parole decision’ [citation], the Governor undertakes an independent, de novo review of the inmate’s suitability for parole. [Citation.] Accordingly, the Governor has discretion to be ‘more stringent or cautious’ in determining whether a defendant poses an unreasonable risk to public safety. [Citation.] When a court reviews the record for some evidence supporting the Governor’s conclusion that a petitioner currently poses an unreasonable risk to public safety, it will affirm the Governor’s interpretation of the evidence so long as that interpretation is reasonable and reflects due consideration of all relevant statutory factors.” (Shaputis, supra, 44 Cal.4th at p. 1258.)
With regard to the Governor’s reliance upon the nature and circumstances of the crime, the Supreme Court concluded “in Lawrence that because the aggravated nature of a commitment offense does not, in every case, provide relevant evidence that an inmate remains dangerous, and a focus upon the egregiousness of the commitment offense to the exclusion of other relevant evidence has proved in practice to obscure the core statutory emphasis upon current dangerousness, the manner in which courts apply the some evidence standard in evaluating the evidentiary value of the gravity of the commitment offense requires some clarification. [¶] Accordingly, ‘the determination whether an inmate poses a current danger is not dependent upon whether his or her commitment offense is more or less egregious than other, similar crimes. [Citation.] Nor is it dependent solely upon whether the circumstances of the offense exhibit viciousness above the minimum elements required for conviction of that offense. Rather, the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense. This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate’s psychological or mental attitude. [Citation.]’ (Lawrence, supra, 44 Cal.4th at p. 1221].)” (Shaputis, supra, 44 Cal.4th at pp. 1254-1255.)
“Thus, ‘the Board or the Governor may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate’s criminal history, but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. [Citation.] Accordingly, the relevant inquiry for a reviewing court is not merely whether an inmate’s crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor.’ (Lawrence supra, 44 Cal.4th at p. 1221.)” (Shaputis, supra, 44 Cal.4th at p. 1255.)
There unquestionably is evidence to support the Governor’s determination that petitioner’s commitment offense was of an “atrocious nature” involving an attack on an unarmed individual posing no threat to him based upon a trivial motive, and involved petitioner’s repeated firing of a gun in a crowded public place, thereby endangering the safety of others besides the victim. However, Lawrence, supra, 44 Cal.4th 1181, makes clear that the Governor cannot rely solely on the nature of petitioner’s commitment offense to reverse the Board’s grant of parole. His letter does not do so. Instead, after discussing the nature of the commitment offense, and petitioner’s positive institutional record, the Governor rests his reversal largely on his concerns about petitioner’s failure to fully accept responsibility for the atrocious crime, as well as his inconsistent statements about his drinking and how he became armed at the time of the murder.
Accordingly, some evidence supports each of the Governor’s concerns. These are very similar to concerns the Governor emphasized in reversing the Board’s grant of parole in Shaputis, supra, 44 Cal.4th at page 1253. Although the Governor also relied on Shaputis’s history of violence, which was significantly more extensive than petitioner’s (ibid.), it was also the case that Shaputis had an excellent institutional record (id. at p. 1249 [noting that Shaputis had a very positive institutional record]), which the Governor also considered. (Id. at p. 1261.) The Supreme Court, in determining under the deferential standard established in Lawrence, supra, 44 Cal.4th1181, that the Governor acted appropriately, indicated that the Governor, provided that he or she accords a prisoner “individualized consideration with regard to all relevant statutory factors,” may properly find that the “gravity of the offense” and a prisoner’s “lack of insight and failure to accept responsibility” for a violent history outweigh factors favoring suitability for parole, as long as this determination is supported by some evidence. (Shaputis, at p. 1261) The court stated:
“[T]he decision made by the Governor reflects that he accorded petitioner individualized consideration with regard to all relevant statutory factors. The Governor’s statement reflects he found that petitioner remains a current danger to the safety of the public, and specifically that the gravity of the offense and petitioner’s lack of insight and failure to accept responsibility outweigh the factors favoring suitability for parole. We have determined that some evidence in the record supports the Governor’s decision. The Governor did not disregard petitioner’s behavior in prison, but rather considered it to be one of several factors, although one outweighed by the gravity of the offense and petitioner’s lack of insight into his long history of violence—factors that suggest petitioner remains a current danger to the public.” (Shaputis, supra, 44 Cal.4th at p. 1261, fn. omitted.)
We conclude that “some evidence” supports the conclusion that petitioner remains a current danger to the safety of the public because, while he may have begun to recognize some aspects of his dangerous behavior in participating in Sanchez’s murder, he has not consistently demonstrated insight into it, or reliably taken responsibility for it. While petitioner contends that he first took full responsibility for his participation in the murder before the Board in 2002, he denied responsibility for the murder to Bush in 2004, and to evaluator Larson in 2005 (as well as, to Larson in 2007, although this is unclear).
Petitioner’s 2005 statements to Rekart, which are the only actual statements in the record indicating that he took responsibility prior to the 2007 hearing, also provide “some evidence” for the Governor’s concerns. Petitioner, rather than state that he shot Sanchez, says that he “may” have participated in the shooting, and that he was “so drunk” he does not remember very much other than being handed a gun. He also says he did not know his crime partners, having just met them in the bar, although he subsequently stated in 2007 that they were his cousins. Petitioner summarizes his actions by stating that he was “not sure what he did, but being in the bar was bad.” The Governor can fairly view these statements as failing to take responsibility for the shooting, and failing to have any insight into his conduct.
Petitioner’s 2007 hearing testimony to the Board includes the first statement contained in the record by him that he actually recalled shooting the victim. This testimony fell significantly short of taking full responsibility for his participation in Sanchez’s murder. Petitioner claimed that he was very drunk and very scared about the feud, and so accepted the gun that was handed to him. He was unclear about who gave him the gun, and remembered firing one shot only, which was inconsistent with his previous contention to Macomber in 2002 that he armed himself because he previously had been shot. Regardless, he claimed he shot Sanchez because either Pablo or the victim was yelling. He also told the Board that he was “completely drunk” and that he “tried to just scare Antonio”; further indications that he continued to resist satisfactorily examining his violent behavior in deliberately shooting Sanchez four times in the back at his cousin’s direction, as indicated by the probation report.
As we have already indicated, Mann’s 2007 life-term inmate evaluation did not actually provide a summary of petitioner’s statements about his participation in the commitment offense.
The Governor also expressed concerns about petitioner’s inconsistent statements about his drinking. Petitioner, although he attended Alcoholics Anonymous meetings for years, stated in 2002 to Macomber, more than a decade after the shooting, that he did not have a drinking problem and, rather than indicate that he was drunk on the day of the shooting, indicated that he was sober and came to the bar armed. However, in 2005 and 2007, he asserted that he had a drinking problem, was drunk that day, was handed a weapon after he arrived at the bar and fired it when he was “completely drunk” and not “completely sane.” These inconsistencies provide some evidence for the Governor’s concerns. Indeed, in light of petitioner’s qualifications about his memory of, and involvement in the shooting because of his supposedly extensive drinking, the Governor had good reason to question the sincerity of petitioner’s acknowledgment of his only recently admitted alcoholism. It may be that at some point in the future, if petitioner consistently articulates over an extended period of time the role of alcohol in his pre-commitment life and in the shooting, it would be unreasonable to rely on his past inconsistencies. However, we do not think two years is sufficient, particularly in light of petitioner’s going back and forth in taking responsibility for the shooting in his statements between 2002 and at least 2005.
Furthermore, the Governor had good reason to question petitioner’s credibility altogether because of the changes and inconsistencies in petitioner’s story. Petitioner represented, essentially, that he was an innocent bystander to a violent family feud, that he had nothing to do with the feud, and that he was unwittingly drawn into it by his own drunkenness and fear by relatives whom he barely knew. However, the record indicates that the other participants were his cousins, that he was a member of one of the feuding families, that he shot Sanchez four times, that he fled and was not arrested for months afterwards, and that over a decade later he insisted that he was sober and armed that night. Nothing in the record causes us to conclude that the Governor must accept petitioner’s present statement of events as true.
To summarize, the only indication in the record that petitioner recalled shooting Sanchez was his statement to the 2007 Board, in which he acknowledged remembering that he shot the victim one time. This limited acknowledgment was heavily qualified, so much so that it is unclear that petitioner accepted responsibility at all for participating in the murder; he claimed at different times to only trying to scare Sanchez, to being scared himself, and to being completely drunk and not completely sane when he fired the shot, all indicating he continues to view his participation in a brutal, public murder as an accident or something for which he should not be held wholly responsible. Also, his numerous contradictory statements about his responsibility in the crime, his possession of a weapon, and his drinking, provided the Governor with good reason to question his credibility, and to be concerned that petitioner remained a current unreasonable risk because of his lack of insight into his violent actions.
The Governor gave individualized consideration to the positive and negative factors regarding petitioner’s suitability for parole. Petitioner’s changing, inconsistent statements about his conduct relating to the commitment offense, and his failure to take responsibility for his participation in the murder, show he continues to lack insight into his violent actions, and provides some evidence that he remains an unreasonable danger to the public safety (see Shaputis, supra, 44 Cal.4th at pp. 1260-1261 [Shaputis’s lack of insight regarding his violence and the commitment offense, which he still characterized as an accident, indicated, along with his history, that petitioner had a lack of insight into his antisocial behavior, providing some evidence to support the Governor’s conclusion that petitioner remains dangerous and is unsuitable for parole]). Petitioner’s excellent institutional record does not necessarily trump this failure. Accordingly, we find the Governor’s reversal of the Board’s grant of parole was properly supported by “some evidence” of petitioner’s present unreasonable dangerousness to public safety. In light of this ruling, we need not address the other grounds the Governor relied upon for his reversal, or the other arguments made by petitioner.
DISPOSITION
The writ is denied.
We concur: Kline, P.J., Richman, J.