Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. M12991 Thomas M. Goethals, Judge.
Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Assistant Attorney General, Julie A. Malone and Charles Chung, Deputy Attorneys General, for Respondent and Appellant.
Rich Pfeiffer for Petitioner and Respondent.
O’LEARY, J.
The Board of Parole Hearings may grant an inmate parole if the inmate does not pose an unreasonable risk of danger to society if released from prison. If the Board grants an inmate parole, the matter is sent to the Governor for review, and the Governor may affirm, modify, or reverse the Board’s decision. Here, the Board granted Bradshaw parole finding he would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison. Governor Arnold Schwarzenegger (the Governor) reversed the Board’s decision concluding he would pose such a risk. Bradshaw filed a petition for writ of habeas corpus in the Orange County Superior Court. The trial court granted the petition finding there was no evidence, other than the commitment offense, Bradshaw posed a current risk of danger to society if released from prison. The Attorney General appealed, and filed a writ of supersedeas and request for temporary stay of the trial court’s order. This court denied the Attorney General’s petition for writ of supersedeas. In the meantime, the Department of Corrections and Rehabilitation, Division of Adult Operations, released Bradshaw from prison.
In July 2005, the Board of Parole Hearings replaced the Board of Prison Terms. (Pen. Code, § 5075, subd. (a).) Because both entities have performed the same duties, we refer to both as “the Board.”
The Attorney General argues the trial court erroneously granted the petition for writ of habeas corpus because there was some evidence supporting the Governor’s decision Bradshaw posed an unreasonable risk of current dangerousness. Because we conclude there is no evidence supporting the Governor’s conclusion Bradshaw currently poses an unreasonable risk to public safety, we affirm the trial court’s order.
The facts of the offense are taken from the 1987 probation report because the Board relied on that report for its statement of facts. Bradshaw objected to the Board’s relying on that report because his defense counsel indicated Bradshaw had resolved some of the factual discrepancies in the report. Because the Board relied on the probation report for the circumstances of the offense, and because Bradshaw exercised his right to not discuss the offense at the parole suitability hearing, we too rely on the probation report for the facts of the offense.
In 1986, Bradshaw’s three-year marriage to Joni Lynn Bradshaw (Joni Lynn) began to deteriorate primarily due to Bradshaw’s cocaine addiction. In the spring of 1986, Bradshaw got into an altercation with Robert Parsons because Parsons expressed a romantic interest in Joni Lynn. Joni Lynn filed for divorce and obtained a restraining order against Bradshaw. Bradshaw sought treatment for his addiction and in October was in a residential treatment program.
Days after leaving the residential treatment program, Bradshaw and his friend, Steven Forbes, drove to the home of Judy Bradshaw (Judy), Bradshaw’s ex-wife, and then to a Cocaine Anonymous meeting. After the meeting, Bradshaw and Forbes went to a bar for one and one-half hours; Bradshaw drank seven beers. When they left, Bradshaw drove to a market and dropped off Forbes. When Bradshaw returned, he asked Forbes whether Parsons owned an orange pickup truck. Bradshaw called Joni Lynn, and she told him Parsons was with her. Bradshaw said he knew Parsons was there and “he was ‘a dead man.’” He also told her that he had a gun and knew where Parsons lived. He told her that he would not hurt her but he was going to her house to shoot Parsons. Bradshaw drove Forbes home; Parsons got dressed and fled.
As he promised, Bradshaw drove to Joni Lynn’s apartment and fired a handgun through the bedroom window. Bradshaw kicked in the front door and shot Joni Lynn in the chest and right knee; he hit her on the head with the gun. Neighbors heard between 10 and 12 gun shots. Police officers responded to the apartment and found her dead. Within hours, Bradshaw turned himself in to the police. The cause of death was a gunshot wound to the chest and blunt force trauma to the head.
In November 1987, Bradshaw pled guilty to second degree murder and admitted he personally used a firearm. During an interview with a probation officer later that year, Bradshaw claimed he intended to kill Parsons but “‘accidentally shot Joni[-Lynn].’” He later expressed remorse for his actions. The trial court sentenced Bradshaw to prison for 15 years to life for second degree murder and a consecutive two-year term for the personal use of a firearm.
Bradshaw was eligible for parole in 1998. The Board denied him parole at six parole suitability hearings over the years.
In a 1999 psychological evaluation, Bradshaw told Dr. Steven Terrini that Joni-Lynn was having an affair, he was intoxicated and angry, and “he wanted to hurt her.” He stated that after he shot her in the leg he shot her again. Bradshaw could neither explain why he shot her the second time, nor could he answer why he had a gun. He said he was armed because Parsons might be there, and he thought Joni-Lynn might have a gun because they collected weapons.
In a 2005 Life Prisoner Evaluation Report, Bradshaw stated he went to Joni-Lynn’s house to kill Parsons but when he arrived Parsons was not there and Joni-Lynn was on the telephone. He explained that “in the process of raising the gun ‘[he] pulled the trigger[, ]’” but he was not sure if he shot her. Bradshaw said he aimed the gun and shot her in the chest. He then hit her on the head with the gun three times.
At his parole suitability hearing in February 2008, the Board denied him parole. Evidence at the hearing indicated the following: Bradshaw had made educational and vocational progress and had attended Alcoholics Anonymous (AA), Narcotics Anonymous (NA), and anger management programs; he admitted responsibility for his crime and expressed remorse; he planned to live with his wife of 20 years and her mother, who submitted a letter agreeing to the living arrangement; he suffered a 1994 “‘128 counseling chrono’” for smoking; and he suffered a 2004
A transcript of the February 2008 parole suitability hearing is not part of the record on appeal. We have taken these facts from Judge Thomas M. Goethals’s March 30, 2009, order requiring the Board to conduct the parole suitability hearing that is the subject of this appeal.
“A CDC 128-A documents incidents of ‘minor misconduct.’ (Cal. Code Regs., tit. 15, § 3312, subd. (a)(2).)” (In re Reed (2009) 171 Cal.App.4th 1071, 1077 (Reed).)
non-serious “‘administrative 115’” for possessing a jeweler’s screwdriver he used for repairing eyeglasses. The psychologist opined his potential for dangerous behavior was no more than an average citizen. The Board denied parole for two years based on the commitment offense, the two violations, and the fact Bradshaw refused to move into a transitional living center upon release.
“A CDC 115 documents misconduct that is ‘believed to be a violation of law or is not minor in nature.’ (Cal. Code Regs., tit. 15, § 3312, subd. (a)(3).)”
In July 2008, Bradshaw filed a petition for writ of habeas corpus with the Orange County Superior Court. On March 30, 2009, the Orange County Superior Court, Judge Goethals granted the petition. After citing In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence), the trial court explained the commitment offense was temporally remote and unlikely to reoccur, and thus, the Board could not rely on the commitment offense to conclude 60-year old Bradshaw was a current threat to public safety. The court opined Bradshaw was a model prisoner and the violations did not support the Board’s finding Bradshaw was a current danger to society. The court stated he had participated extensively in self-help and rehabilitative programs and had exceptional parole plans. The court added Bradshaw’s psychological evaluation was extremely favorable. Relying on Lawrence, the court stated the only evidence related to unsuitability was the commitment offense, and therefore, the evidence before the Board did not support the Board’s finding Bradshaw “pose[d] an unreasonable risk of danger to society or a threat to public safety if he were released at [that] time.” The court ordered the Board “to hold a new parole suitability hearing within 45 days of this order” and to find Bradshaw “suitable for parole, unless new evidence (i.e., evidence of behavior occurring subsequent to the February 2008 parole hearing) is introduced which is sufficient to support a finding that [Bradshaw] currently poses an unreasonable risk of danger to society or a threat to public safety if he were released at this time.”
In June 2009, Dr. Richard Atwood prepared a “Comprehensive Risk Assessment” report (the Report) for Bradshaw. The Report explained Bradshaw was raised by his natural parents and he had an older brother; all were deceased. His parents were alcoholics, and his father was physically abusive towards him, his brother, and his mother. He dropped out of school in 10th grade but later earned his GED. He attended some college but stopped because he had to work to support his first wife and two children. He divorced his first wife because “[he] walked away after [his] [back] injury.” He does not speak with his two children. The Report stated Bradshaw did not have a juvenile arrest record, or an adult arrest record, other than the life crime.
In the Report, Atwood noted “The Life Prisoner Evaluation Report” for his next parole suitability hearing had not been completed.
The Report provided Bradshaw’s explanation for the life crime. Bradshaw stated he went to Joni-Lynn’s house looking for Parsons, but he was not there. He saw Joni-Lynn on the telephone, and as he raised the gun, he fired. He aimed the gun at her chest and fired again. He kneeled next to her, hit her on the head with the gun, and said, “‘you lied.’” He explained: “‘[His] original intent was to harm Parsons; he represented all the problems [he] was having, [his] marriage, everything. When he was there, [he] felt rage, abandonment, betrayal, and took it out on Joni-[Lynn].’” He repeatedly hit her on the head with the gun because “‘[he] was out of control, and still mad.’”
The Report stated Bradshaw had various work assignments while incarcerated and his performance reports ranged from above average to exceptional. He completed vocational training programs in sewing machine repair and appliance repair. He did not plan to seek employment if paroled because he is eligible for disability insurance. The Report added that if paroled, Bradshaw intends to live with his wife in Orange County, and his parole plans appear feasible.
The Report stated Bradshaw was prescribed pain medication for his back injury, became depressed because of his injury, and began to self-medicate. He also sought mental health treatment for his depression and was prescribed antidepressant medication. The Report added Bradshaw had a self-admitted substance abuse problem, including cocaine and alcohol. Bradshaw had attended AA/NA continuously since 1991. The Report recommended a substance abuse treatment program or continued attendance at substance abuse recovery support meetings. The Report explained “sobriety in a controlled environment is not synonymous with continued abstinence in the free community. It should also be noted that any opinions regarding the inmate refraining from future substance use in an uncontrolled environment are subjective and speculative in nature, and should be interpreted with this limitation in mind.” The Report opined that if Bradshaw resumed drug use, “[he] would be at significantly increased risk for engaging in impulsive behavior that may be violent or criminal in nature.”
The Report noted Bradshaw had one “CDC-115 Rules Violation Report” and one “CDC-128A Disciplinary Counseling Chrono, ” which suggests Bradshaw is able to follow rules and standards in a highly controlled environment. The Report also stated his last infraction was 2004, which demonstrated appropriate behavior for the previous five years.
The Report explained Bradshaw recognized the seriousness of his crime and accepted full responsibility. Bradshaw expressed remorse and regret for the crime. The Report stated he had “an adequate level of insight, and appears to have an understanding of the internal causes and factors that led to the commission of the life crime to include the role of jealousy/possessiveness, substance use/abuse, deficient impulse control, lack of anger/emotional control, ready a[cc]ess to a weapon, [and] poor decision making and decreased judgment....” Bradshaw participated in many self-help programs, including “Rational Behavior Training Group, How to be a Father and not get Angry, Alternatives to Violence Project, Anger Management, Self-Esteem and Assertiveness Group, Substance Abuse Group, Reality and Decision Making Group, Life Skills Group, Anger Workshop, Anger Control Group, Communication Skills Group, Substance Abuse Therapy, and Depression Management Group.”
Atwood reviewed Bradford’s 1999 and 2005 psychological evaluations, which stated, “‘[Bradshaw] is no more dangerous than the average citizen in the community[, ]’” and “‘his violence potential is considered to be below average relative to the average citizen in the community[, ]’” respectively. The Report stated these assessments were “overly optimistic and speculative... in that [Bradshaw] actuarially [sic] does pose some risk (a [l]ow risk) above and beyond an ‘average citizen’ who has not committed a violent felony (much less a murder); nor has the ‘average citizen’ spent over two decades incarcerated.” The Report concluded, “After weighing all of the data from the available records, the clinical interview, and the risk assessment data, it is opined that... Bradshaw presents a relatively LOW RISK for violence in the free community.”
In August 2009, the Board granted Bradshaw parole. Presiding Commissioner Sheila Petrakis stated the Board was conducting a subsequent parole suitability hearing in response to Judge Goethals’s March 30, 2009, order. Presiding Commissioner Petrakis stated that although Judge Goethals ordered the Board to only consider evidence subsequent to the February 2008 parole hearing, the Board was conducting a full hearing. Presiding Commissioner Petrakis overruled Bradshaw’s counsel’s objection, reasoning there were issues that needed to be clarified, and there was new information to consider, including the Report. Bradshaw’s counsel stated Bradshaw would not speak concerning the circumstances of the crime, and Presiding Commissioner Petrakis indicated the Board would adopt the probation report as its statement of facts.
Bradshaw accepted responsibility for the offense and explained his cocaine and alcohol abuse increased his angry, possessive, and jealous nature, and caused him to be impulsive. He stated that with the assistance of his self-help programs, he had learned how to deal with his anger and be calm. Bradshaw explained how his back injury led to his substance abuse problems and eventually the disintegration of his first marriage. He stated he had been sober for nearly 23 years and went to AA/NA meetings continuously. Bradshaw stated he preferred NA, would continue to go to NA meetings, and had a list of the Orange County NA meeting locations and times. The Board then discussed social factors, including Bradshaw’s family, education, employment, and health.
Deputy Commissioner Jan Enloe discussed the events that had transpired since Bradshaw’s previous parole suitability hearing in February 2008. Deputy Commissioner Enloe recounted Bradshaw’s work assignments and performance reports. Bradshaw discussed his two rules violations while in prison. Deputy Commissioner Enloe stated that since the February 2008 parole suitability hearing Bradshaw had continued attending NA meetings and he had attended self-help programs, including Alternatives to Violence, Stereotyping and Racism, and Peer Pressure and Self-Examination.
Deputy Commissioner Enloe then discussed much of what was in the Report. Deputy Commissioner Enloe noted Atwood’s disagreement with prior psychological evaluations concerning Bradshaw’s dangerousness and his parole plans.
Presiding Commissioner Petrakis explained there was a letter from the Orange County District Attorney’s Office expressing its concerns regarding Bradshaw’s parole suitability, including no alternative financial plans and no specific drug relapse prevention plan. Bradshaw had not secured a sponsor but he stated finding an NA sponsor was “a personal thing.” He explained, “[he] needed to find somebody closer to [his] own age[]” and if he is released “[he] will do that right away.” The district attorney, Bradshaw’s counsel, Bradshaw, and the victim’s mother delivered closing remarks. Interestingly, the victim’s mother flew from Colorado five times to attend Bradshaw’s parole suitability hearings over the years; she supported his release.
After deliberating, the Board concluded “[Bradshaw] is suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison.” The Board stated it considered the nature and gravity of the commitment offense and Bradshaw’s unstable social history. The Board said it also considered his misconduct while incarcerated. It noted his August 2004 “CDC-115 Rules Violation Report” for possession of contraband was reduced from serious to administrative. The Board reasoned another factor that weighed against suitability was Bradshaw’s previous lack of insight into the reasons he committed the crime, and the previous Board’s conclusion he was manipulative. Despite these factors, the Board concluded Bradshaw was suitable for parole because Bradshaw demonstrates insight into the causes of the crime and he shows genuine remorse.
In support of the Board’s decision, Deputy Commissioner Enloe recited Bradshaw’s vocational programs, numerous jobs, and positive performance reviews. Deputy Commissioner Enloe also discussed Bradshaw’s numerous self-help programs, including AA/NA and anger management programs. The Board noted Bradshaw’s social history was stable in that he had been married for 21 years, and maintained relationships with his current mother-in-law, and the victim’s mother, who supported his release. The Board opined Bradshaw’s lack of a juvenile assault history and criminal history, and his age, all reduced his risk of recidivism.
Finally, the Board commented on Bradshaw’s parole plans. Presiding Commissioner Petrakis stated Judge Goethals’s order required the Board to consider evidence of Bradshaw’s behavior since February 2008. Presiding Commissioner Petrakis explained that had Judge Goethals not limited the scope of the hearing in that manner, the Board would have found Bradshaw’s parole plans problematic because he intended to live with his new wife. She stated: “As with several other [Boards], concern has been repeatedly expressed about [Bradshaw’s] desire to live with [his] wife. The commitment offense obviously involved the murder of [his] [second] wife. This was partially due to [his] past controlling possessiveness and jealousy, emotional state of mind. The [Board’s] concern is based upon the fact that [he] [has] also been incarcerated for nearly 23 years, met [his] wife... while incarcerated, and subsequently married her 21 years ago while [he] [was] in prison.” The Board recognized Bradshaw had participated in numerous anger management programs. However, Presiding Commissioner Petrakis opined, “The [Board] believes it would be in the best interests of [he] and [his] wife had [he] found alternative residential plans, which would afford [him] the opportunity to transition into the relationship.” The Board said, “[F]or the record, we have a very serious concern about [Bradshaw’s] residential plans.” The Board concluded that because there was no evidence of Bradshaw’s unsuitability since February 2008, Bradshaw was suitable for parole.
In December 2009, the Governor reversed the Board’s decision. After reciting the circumstances of the offense, the Governor stated the probation report indicated that when Bradshaw was a juvenile, police detained him for fighting with another juvenile. The Governor detailed Bradshaw’s history of substance abuse. He also explained Bradshaw was disciplined for possessing cigarette lighters and screwdrivers.
The Governor cited to the positive factors supporting parole suitability. He explained Bradshaw earned his GED, completed vocational programs, and held numerous jobs. The Governor recited the very long list of self-help programs Bradshaw participated in, including AA/NA and anger management. He stated Bradshaw maintained positive relationships and if paroled planned to live with his wife in Orange County and collect Social Security income.
The Governor reasoned that despite these positive factors, the second-degree murder of the “helpless and unarmed” victim was “‘heinous, atrocious[, ] and cruel.’” The Governor opined Bradshaw lacked insight into the life crime and failed to accept full responsibility for the life crime. He explained Bradshaw’s conflicting stories over the years concerning whether he intended to shoot Parsons or Joni-Lynn, and whether he believed Joni-Lynn had a gun, demonstrates he “fails to acknowledge that it was his own desire for revenge that directly resulted in the victim’s death.” He also explained that despite Bradshaw’s history of substance abuse, he had not “secured a sponsor in the community to assist him in maintaining his sobriety upon release.” The Governor, like the Board, was concerned Bradshaw planned to live with his wife if paroled. He explained Bradshaw ignored the Board’s recommendation in 2006 and 2008 to find an alternative residence. Finally, the Governor cited to Bradshaw’s 2004 possession of contraband as evidence “he is not yet ready to conform his conduct within society’s laws or comply with the conditions of parole.”
The Governor acknowledged Bradshaw made credible gains in prison. However, he stated that although the circumstances of the crime support his decision denying parole, Bradshaw’s lack of insight into the crime, recent failure to follow prison rules, and poor parole plans demonstrate he “still poses a risk of recidivism and violence and that his release from prison at this time would pose an unreasonable risk to public safety.”
In February 2010, Bradshaw filed a petition for writ of habeas corpus with the Orange County Superior Court. The Attorney General responded two months later, and Bradshaw replied.
On June 1, 2010, the trial court, Judge Goethals, granted the petition for writ of habeas corpus. After detailing the circumstances of the offense, Bradshaw’s incarceration record, and the case’s procedural history, the court ruled as follows: “[Bradshaw’s] crime occurred over 23 years ago. He is now 62 years old. He has participated in therapy, self-help, and drug and alcohol recovery for that length of time. Thus his crime is both ‘temporally remote’ and ‘mitigated by circumstances indicating the conduct is unlikely to recur.’ [Citation.] The Governor may not therefore continue to rely on the commitment offense to deny parole, because the circumstances of the crime alone do not support the conclusion that [Bradshaw] remains a current threat to public safety. [Citation.] [¶] Separate and apart from the crime, [Bradshaw] has been virtually a model prisoner. That he violated prison smoking policy one time 16 years ago is not a reliable indicator that he is a current danger to society. Likewise, possession of the jeweler’s screwdriver, the Phillip’s driver bit[, ] and the BIC cigarette lighters was, as the [Board] found, ‘not serious.’ Additionally, [Bradshaw’s] last two psychological evaluations were extremely favorable. He has exceptionally viable parole plans in place, notwithstanding the Governor’s insistence that he should not plan to live with his wife. [¶] It therefore appears that there is no reliable, credible evidence supporting the Governor’s reversal of [Bradshaw’s] parole. Further, evidence of [Bradshaw’s] ‘rehabilitation and suitability for parole’ is ‘overwhelming, ’ and the only evidence of unsuitability is the gravity of the commitment offense itself. [Citation.]” Citing In re Masoner (2009) 179 Cal.App.4th 1531 (Masoner), the court vacated the Governor’s decision and reinstated the Board’s August 2009 grant of parole without remanding the case to the Governor.
On June 28, 2010, the Attorney General appealed. On July 9, 2010, the Attorney General also filed a writ of supersedeas and request for temporary stay of the trial court’s order granting Bradshaw’s writ of habeas corpus. On July 15, 2010, this court denied the Attorney General’s petition for writ of supersedeas.
On July 28, 2010, Bradshaw filed an application for order to show cause regarding contempt to follow the trial court’s order regarding his petition for writ of habeas corpus. Bradshaw was released from prison on July 28, 2010.
On July 29, 2010, this court ordered “Respondent” to file an informal letter brief addressing two issues. On August 13, 2010, this court denied Bradshaw’s application for an order to show cause regarding contempt of this court.
Bradshaw makes much of the fact the Attorney General did not respond to this court’s order requiring it to file an informal letter brief addressing the two issues. It was Bradshaw who was ordered to file an informal letter brief addressing the two issues. He failed to do so.
DISCUSSION
I. Suitability
General Legal Principles
Penal Code section 3041, subdivision (b), states, “The panel or the board, sitting en banc, shall set a release date unless it 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.” Title 15 California Administrative Code, section 2401 provides in relevant part: “A parole date shall be denied if the prisoner is found unsuitable for parole under [s]ection 2402(c).”
We will refer to Title 15 California Administrative Code, section 2402 as “section 2402.”
Section 2402(a) states: “The panel shall first determine whether the life prisoner is suitable for release on parole. 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.” (Italics added.) In making its determination, section 2402(b) authorizes the panel to consider “[a]ll relevant, reliable information[, ]” including “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.”
Section 2402(c) and (d) list circumstances tending to show unsuitability and suitability, respectively. Both subdivisions state “the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel.” (Italics added.)
Unsuitability
Section 2402(c) provides: “Circumstances tending to indicate unsuitability include: (1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered include: (A) Multiple victims were attacked, injured or killed in the same or separate incidents. (B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder. (C) The victim was abused, defiled or mutilated during or after the offense. (D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering. (E) The motive for the crime is inexplicable or very trivial in relation to the offense. [¶] (2) Previous Record of Violence. The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age. [¶] (3) Unstable Social History. The prisoner has a history of unstable or tumultuous relationships with others. [¶] (4) Sadistic Sexual Offenses. The prisoner has previously sexually assaulted another in a manner calculated to inflict unusual pain or fear upon the victim. [¶] (5) Psychological Factors. The prisoner has a lengthy history of severe mental problems related to the offense. [¶] (6) Institutional Behavior. The prisoner has engaged in serious misconduct in prison or jail.”
Suitability
Section 2402(d) states: “Circumstances tending to indicate suitability include: (1) No Juvenile Record. The prisoner does not have a record of assaulting others as a juvenile or committing crimes with a potential of personal harm to victims. [¶] (2) Stable Social History. The prisoner has experienced reasonably stable relationships with others. [¶] (3) Signs of Remorse. The prisoner performed acts which tend to indicate the presence of remorse, such as attempting to repair the damage, seeking help for or relieving suffering of the victim, or indicating that he understands the nature and magnitude of the offense. [¶] (4) Motivation for Crime. The prisoner committed his crime as the result of significant stress in his life, especially if the stress has built over a long period of time. [¶] (5) Battered Woman Syndrome. At the time of the commission of the crime, the prisoner suffered from Battered Woman Syndrome, as defined in section 2000(b), and it appears the criminal behavior was the result of that victimization. [¶] (6) Lack of Criminal History. The prisoner lacks any significant history of violent crime. [¶] (7) Age. The prisoner’s present age reduces the probability of recidivism. [¶] (8) Understanding and Plans for Future. The prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release. [¶] (9) Institutional Behavior. Institutional activities indicate an enhanced ability to function within the law upon release.”
The Board’s and Governor’s Role
“[A]lthough the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner’s pre- or post incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner’s dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1214.)
“[T]he 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. [Citations.]” (Lawrence, supra, 44 Cal.4th at p. 1221.)
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.]” (Lawrence supra, 44 Cal.4th at p. 1221; In re Shaputis (2008) 44 Cal.4th 1241, 1254-1255 (Shaputis).)
Standard of Review
In reviewing the Governor’s decision, “[i]t is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole.” (In re Rosenkrantz (2002) 29 Cal.4th 616, 677.) A court must ensure the Governor considered the same factors the Board considered, but “the court’s review is limited to ascertaining whether there is some evidence in the record that supports the Governor’s decision.” (Ibid.) Ultimately, the court examines the record to determine whether any evidence exists to support the Governor’s decision. (Id. at p. 665.)
In Lawrence, supra, 44 Cal.4th 1181, our Supreme Court reaffirmed its analysis in Rosenkrantz, supra, 29 Cal.4th 616, that “the primary, overriding consideration for the Board is public safety, ” and the Governor’s decision of parole suitability is subject to the “‘some evidence’” standard of review. (Lawrence, supra, 44 Cal.4th at p. 1205.) The court recognized, however, that “[Rosenkrantz]... did not specifically reconsider, limit, or amplify the contours of the standard of review recognized and outlined in [that case].” (Id. at p. 1205.) The court concluded “the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings.” (Id. at p. 1212; Shaputis, supra, 44 Cal.4th at pp. 1254-1255.) Thus, “[t]his inquiry is, by necessity and by statutory mandate, an individualized one, ” and requires a court to consider the circumstances surrounding the commitment offense, along with the other facts in the record, to determine whether an inmate poses a current danger to public safety. (Shaputis, supra, 44 Cal.4th at p. 1255.)
In Shaputis, supra, 44 Cal.4th 1241, our Supreme Court addressed the standard of review of a Governor’s decision concerning parole suitability. “The Governor is subject to the same standards as those that apply to the Board. As we stated in Rosenkrantz, supra, 29 Cal.4th 616, ... the 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’ (Rosenkrantz, supra, 29 Cal.4th at p. 660...), the Governor undertakes an independent, de novo review of the inmate’s suitability for parole. (Ibid.) Accordingly, the Governor has discretion to be ‘more stringent or cautious’ in determining whether a defendant poses an unreasonable risk to public safety. (Id. at p. 686....) 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. (Rosenkrantz, supra, 29 Cal.4th at pp. 656-658, 660-661.)” (Shaputis, supra, 44 Cal.4th at p. 1258.)
In reversing the Board’s decision granting Bradshaw parole, the Governor relied on the following evidence: (1) Bradshaw’s murder of the helpless victim was heinous; (2) Bradshaw lacked insight into and failed to accept responsibility for the life offense; (3) Bradshaw’s self-admitted and well-documented history of substance abuse contributed to his commission of the life offense and he failed to secure in advance an NA sponsor for when he was released; (4) Bradshaw’s parole plans were deficient because he intended to live with his third wife who he married while he was incarcerated when the life offense involved the murder of his second wife; and (5) Bradshaw failed to follow prison rules.
Based on California Supreme Court authority, it is clear “the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public.” (Lawrence, supra, 44 Cal.4th at p. 1214.) Thus, the Governor’s reliance on the atrociousness of the offense alone is insufficient to prove a current danger of risk to society. We, therefore, turn to the other evidence the Governor relied on in denying Bradshaw parole.
First, the Governor’s conclusion Bradshaw lacked insight into the life crime and failed to accept full responsibility for the life crime is belied by the record. The Governor stated Bradshaw “fails to acknowledge that it was his own desire for revenge that directly resulted in the victim’s death.” The Report (Atwood’s 2009 report) explained Bradshaw recognized he felt rage, abandonment, and betrayal, and he “‘took it out on Joni-[Lynn].’” The Report concluded Bradshaw had insight into why he committed the life crime and he accepted full responsibility for his actions. Thus, there is no evidence supporting the Governor’s conclusion Bradshaw was unrepentant.
Second, the fact Bradshaw had not arranged in advance to have an NA sponsor when he was released into the community does not establish he was a current risk of danger to society. The Governor reasoned “[h]is failure to secure a sponsor could make him more susceptible to alcohol and drug use in the community, thereby increasing his risk of recidivism.” The Report, however, indicated Bradshaw had been attending AA/NA meetings continuously for over 18 years, he understood the role substance abuse played in his commission of the life offense, and he was committed to continued attendance at substance abuse recovery support meetings. The record before the Board included evidence Bradshaw had researched the location and times of NA meetings in Orange County. Putting aside for the moment the logistical difficulties in arranging for an NA sponsor in Orange Country while incarcerated in Soledad, the record includes evidence Bradshaw had demonstrated a commitment to sobriety while incarcerated and he planned to honor that commitment if released as evidenced by his researching local NA meetings. Additionally, he explained to the Board he had not chosen a sponsor because he wanted to find someone closer to his age. This demonstrates the seriousness with which he took his sobriety and his commitment to remaining sober upon release. Therefore, Bradshaw’s failure to arrange for an NA sponsor before he was released does not demonstrate he was a current danger to society.
Third, the Governor placed great weight on the fact that if Bradshaw were paroled, he planned to live with his wife and her mother, who supported the living arrangement. We understand the Governor’s concern that after murdering his second wife, Bradshaw intended to live with his third wife, with whom he had never lived. But an examination of the Governor’s reasoning on this point indicates he did not find Bradshaw’s plans to be unrealistic but simply felt that transitional housing would be a better plan. The Governor’s conclusion Bradshaw failed to find “housing arrangements that would better ensure his successful transition back into society” does not establish Bradshaw was a current risk of danger to society.
Finally, the Governor’s reliance on a 2004 rules violation does not support the denial of parole. The fact Bradshaw did not abide by prison rules one time nearly six years before the Board’s grant of parole fails to support a finding of a current risk of danger to society. Additionally, the fact he possessed lighters and two screwdrivers does not demonstrate he is any risk to society. We do not minimize the importance of the enforcement of and obedience to correctional regulations as they are designed to ensure the safety of prison employees and inmates alike. But that Bradshaw possessed what he considered to be work tools, which amounted to an administrative violation, six years before the Board considered his release, does not demonstrate he posed a current risk of danger to society if released.
We recognize the standard of review in a case where an appellate court reviews the Governor’s or Board’s decision denying parole is limited and can be properly characterized as deferential to the Governor’s or Board’s decision. But absent “some evidence” and “articulation of a rational nexus between those facts and current dangerousness[]” we cannot affirm the Governor’s decision denying parole.
II. Remedy
The Attorney General argues that should we reverse the Governor’s decision and reinstate the Board’s decision finding Bradshaw suitable for parole, we should remand the case back to the Governor with instructions to proceed in accordance with due process of law. We decline the Attorney General’s invitation. “‘[T]he proper remedy is to vacate the Governor’s decision and to reinstate that of the Board. [Citation.]’ [Citations.] [Citation.]” (In re Gomez (2010) 190 Cal.App.4th 1291, 1309.) We conclude this is the appropriate remedy here.
DISPOSITION
The trial court’s order reversing the Governor’s reversal of the Board is affirmed. The Board’s grant of parole is reinstated.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.
(Reed, supra, 171 Cal.App.4th at p. 1077.)