Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BH005753, Peter Paul Espinoza, Judge.
Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Assistant Attorney General, Heather Bushman, Jennifer L. Heinisch, and Julie A. Malone, Deputy Attorneys General, for Appellant.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Respondent.
WILLHITE, J.
This is an appeal from an order of the superior court granting the petition for a writ of habeas corpus of Woodrow Lockett, a state prisoner, and ordering his release after Governor Arnold Schwarzenegger reversed the decision of the Board of Parole Hearings (“Board”), which granted Lockett parole. (Pen.Code, § 1507.) Appellant, the warden of the prison where Lockett is incarcerated, contends that the superior court erred in vacating the Governor’s decision to reverse the Board’s determination that petitioner is suitable for parole. Appellant further contends that the superior court erred in ordering Lockett’s release rather than vacating the Governor’s decision and directing the Governor to reconsider the decision in light of In re Lawrence (2008)44 Cal.4th 1181 (Lawrence). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In December 1988, when Lockett was 24 years old and transient, he and another transient named Tony decided to rob someone for drug money. Lockett and Tony approached the victim, who was sleeping on a park bench. They knew that the victim was drunk. Lockett put a knife to the victim’s throat while Tony searched the victim’s pockets. When the victim struggled, Lockett stabbed him in the neck. Lockett used the money they stole from the victim to buy cocaine.
Lockett and Tony left, but, after thinking about the incident, Lockett felt “ashamed and sorry for the victim, ” so he decided to turn himself in to the police. Thirteen hours after committing the crime, Lockett went to the police and confessed to the crime. Lockett was convicted following a nonjury trial of second degree murder and was sentenced to 15 years to life, plus one year for the use of a deadly weapon. (Pen. Code, §§ 187 subd. (a), 12022, subd. (b) (1988 ed.).)
A 2003 evaluation of Lockett’s suitability for parole reported Lockett’s version of the crime as follows: “In the process of robbing this fellow I had a knife in my hand up near his throat; in the struggle to take his money the knife was pressed into his main artery by his neck. I wasn’t sure if he had been stabbed but he began breathing differently like he was struggling to breath[e]. We didn’t stay around long enough to know if he was dead or not....”
The Board held a parole hearing on November 16, 2006. At the hearing, the Board expressed concern that, in an October 2006 report, Lockett stated that the knife “‘just kind of slipped into [the victim’s] throat.’” Lockett described that as “a poor choice of words, ” and stated instead that, “I had the knife up to the guy’s neck and in the struggle I stuck the guy in the struggle.” He told the Board that he did not intend to stab him, but only to scare him, and that the stabbing was an accident. When asked to describe the struggle, Lockett replied, “The guy’s laying down, two guys come up to him trying to take his money, and he just started, you know, he didn’t say no words, he just starting like with his hands he just started struggling with his hands trying to get two guys off of him. I had the knife up to his neck, so when he was struggling he got accidentally I stuck him with I had the knife up to his neck [sic] and in the struggle and moving his head around he got stuck.” Lockett did not recall “any particular point where [he] had stuck him with the knife.”
The Board found that Lockett was suitable for parole, reasoning that, although Lockett’s offense was quite serious, he had no juvenile record of assault and had worked hard in prison to rehabilitate himself by participating in educational, vocational, and self-help programs. The Board also noted Lockett’s remarkable accomplishment of having received no CDC 115’s in prison and only two CDC 128-A’s for absences. Other factors cited by the Board in Lockett’s favor were that Lockett had completed his GED, held various job assignments, and upgraded his work skills by completing training in dry cleaning and furniture finishing. Lockett also had participated in self-help programs, obtained an associate of theology degree from Cyprus Bible College, taken classes with Patton College, and was an ordained minister in the Church of God. Lockett had completed anger management and conflict resolution courses and participated in Alcoholics Anonymous and Narcotics Anonymous.
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).) A CDC 128-A documents incidents of minor misconduct. (See Cal. Code Regs., tit. 15, § 3312, subd. (a)(2);
The Board reasoned that Lockett was a drug addict and alcoholic at the time of the offense, did not have a violent criminal history, and had “realistic parole plans that include multiple transition living centers and job seeking....” In particular, the Board cited Lockett’s remorse, manifested by Lockett’s efforts to turn himself in after the crime.
On April 9, 2007, the Governor reversed the Board’s decision to grant parole. The Governor agreed that Lockett had maintained a discipline-free record in prison, participated in numerous educational, vocational, and self-help programs, and maintained good relationships and received favorable evaluations from corrections and mental health professionals. Nonetheless, the Governor reversed the Board on the basis that the crime was particularly serious and “demonstrated an exceptionally callous disregard” for the victim’s life. The Governor also found that Lockett did not accept responsibility for his crime because Lockett’s statement that the stabbing was accidental was contradicted by the autopsy report, which indicated a two-inch deep wound.
In September 2007, Lockett filed a petition for a writ of habeas corpus in the superior court, challenging the Governor’s decision. The superior court denied the petition in November 2007, finding that the Governor’s decision was supported by “some evidence” within the meaning of In re Rosenkrantz (2002) 29 Cal.4th 616, 667 (Rosenkrantz). In March 2008, this court denied Lockett’s habeas petition, also citing Rosenkrantz. On December 10, 2008, the California Supreme Court denied Lockett’s habeas petition without prejudice to filing a petition pursuant to its decision in Lawrence.
In January 2009, Lockett filed another habeas petition in the superior court. The superior court granted Lockett’s habeas petition on September 23, 2009. The court agreed with the Governor’s finding that the crime was especially heinous and acknowledged that this factor was relevant to a parole suitability determination. (See Lawrence, supra, 44 Cal.4th at p. 1202, fn. 7 [noting that one unsuitability factor is “a commitment offense carried out in an ‘especially heinous, atrocious or cruel manner’”].) Nonetheless, the superior court reasoned that such a finding was relevant to unsuitability only if it supported the “ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety.” (In re Shaputis (2008) 44 Cal.4th 1241, 1255 (Shaputis).)
The superior court found that there was nothing in Lockett’s pre- or post-conviction history to indicate that he remained a danger to society, citing Lockett’s lack of disciplinary actions in prison and his involvement in numerous educational, religious, vocational, and self-help programs. The court also noted that Lockett’s psychological evaluation concluded that he did not remain a danger to society.
The court disagreed with the Governor’s contention that Lockett lacked insight into the offense because he claimed that he cut the victim’s throat accidentally. The court reasoned that Lockett “does not deny that he cut the victim and did not dispute the fact that the wounds he inflicted were deep enough to kill the victim. He admits that he continued to press the knife to the victim’s neck as he struggled for an undetermined period of time. This version of events is not physically impossible and does not strain credulity given his lack of prior violence.” In addition, similar to the Board, the court pointed out that Lockett voluntarily turned himself in to the police, expressed remorse, and attempted to make amends. The court thus found no evidence to support the Governor’s conclusion that Lockett remained an unreasonable risk of danger to society, reinstated the Board’s order, and ordered Lockett’s release.
Appellant filed a notice of appeal. We granted appellant’s petition for a writ of supersedeas to stay the superior court’s order, pending further order of this court.
DISCUSSION
Appellant contends that the superior court erred in finding that the Governor’s decision was not supported by some evidence. Appellant also contends that the superior court erred in failing to remand the matter to the Governor.
Penal Code section 3041 establishes a presumption that parole will be the rule, rather than the exception, providing that the Board “shall set a release date unless it determines that the gravity of the current convicted offense... 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....” (Pen. Code, § 3041, subd. (b).)
“[T]he Governor’s interpretation of a documentary record is entitled to deference. [Citation.]” (Shaputis, supra, 44 Cal.4th at p. 1258.) “We must affirm a Governor’s decision that an inmate is unsuitable for parole if ‘some evidence’ supports the conclusion that the inmate is currently dangerous. [Citation.]” (In re Aguilar (2008) 168 Cal.App.4th 1479, 1488.) The resolution of any conflicts in the evidence, the weight to be given the evidence, and the consideration of factors relevant to parole suitability are matters within the Governor’s discretion. (Ibid.) Thus, we “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. [Citation.]” (Shaputis, supra, 44 Cal.4th at p. 1258.)
“‘[C]ircumstances tending to establish unsuitability for parole are that the prisoner (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) previously has sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (Cal. Code Regs., tit. 15, § 2402, subd. (c).)’ [Citation.]... [¶] ‘[C]ircumstances tending to establish suitability for parole are that the prisoner: (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his life, especially if the stress has built over a long period of time; (5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use upon release; and (9) has engaged in institutional activities that indicate an enhanced ability to function within the law upon release. (Cal. Code Regs., tit. 15, § 2402, subd. (d).)’ [Citation.]” (In re Dannenberg (2009) 173 Cal.App.4th 237, 247-248.)
We agree with appellant that some evidence supports the Governor’s conclusion that the crime was heinous and that Lockett’s version of the stabbing is inconsistent with the description of the fatal wound contained in the autopsy report. But we disagree that, without more in this case, these factors translate into some evidence to support a finding that Lockett remains an unreasonable danger. In determining whether some evidence supports the Governor’s decision that an inmate poses a current threat to public safety, we consider “evidence in the record corresponding to both suitability and unsuitability factors-including the facts of the commitment offense, ... and, importantly, the inmate’s attitude concerning his or her commission of the crime....” (Lawrence, supra, 44 Cal.4that p. 1213.)
Here, there is some evidence to support the Governor’s finding that the offense was especially heinous. There is no question that the victim “was outnumbered, and he was accosted while lying on a park bench.” Also, the motive (to buy drugs) was trivial in relation to the offense. (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1)(E).) The Governor expressed concerns that since Lockett maintains that the stabbing was accidental, this indicates that Lockett has failed to accept responsibility and demonstrate remorse for the crime, and, therefore, that he continues to pose an unreasonable risk of danger if released.
According to appellant, “Lockett’s lack of insight provides the nexus between the eighteen-year-old murder and his current dangerousness.” On this record, however, the link is not established. This is not a case like Shaputis, supra, 44 Cal.4th at p. 1259, in which “the murder was the culmination of many years of petitioner’s violent and brutalizing behavior toward the victim, his children, and his previous wife.” In that context, the petitioner’s minimizing of the intentional killing and claiming it was an accident, combined “with evidence of petitioner’s history of domestic abuse and recent psychological reports reflecting that his character remains unchanged and that he is still unable to gain insight into his antisocial behavior despite years of therapy and rehabilitative ‘programming, ’ all provid[ed] some evidence in support of the Governor’s conclusion that petitioner remains dangerous and is unsuitable for parole.” (Id. at p. 1260.) Here, nothing suggests that because Locket’s description of the killing is arguably inconsistent with the autopsy, Locket remains a danger. As the Board recognized, Lockett has no significant criminal record, has an exemplary disciplinary record in prison, has worked hard in prison to rehabilitate himself through education and job training, has realistic parole plans, and has expressed remorse for the killing.
As stated in Lawrence, supra, 44 Cal.4th at p. 1219, “Absent affirmative evidence of a change in the prisoner’s demeanor and mental state, the circumstances of the commitment offense may continue to be probative of the prisoner’s dangerousness for some time in the future. At some point, however, when there is affirmative evidence, based upon the prisoner’s subsequent behavior and current mental state, that the prisoner, if released, would not currently be dangerous, his or her past offense may no longer realistically constitute a reliable or accurate indicator of the prisoner’s current dangerousness.” Here, there is affirmative evidence of a change in petitioner’s demeanor and mental state, and there is no evidence to suggest any inconsistency between his description of the fatal wound and that in the autopsy report indicates that he remains an unreasonable danger to society if released. Therefore, we conclude that some evidence does not support the Governor’s decision.
Appellant contends that if we determine that some evidence does not support the Governor’s decision, we should remand the case to the Governor for reconsideration in light of Lawrence and Shaputis. We disagree. (See In re Moses (2010) 182 Cal.App.4th 1279, 1314 [“there is not ‘some’ evidence in the record to support the Governor’s contentions of current dangerousness, and we conclude that ‘further consideration by the Governor will not change this fact.’ [Citation.] Accordingly, [the petitioner] is entitled to reinstatement of the Board’s... grant of parole without remand to the Governor for his further consideration of it”]; see also In re Masoner (2009) 179 Cal.App4th 1531, 1540.)
DISPOSITION
The order of the superior court dated September 23, 2009, granting Lockett’s petition for a writ of habeas corpus, reinstating the Board’s November 16, 2006 decision, vacating the Governor’s April 2007 decision, and ordering Lockett’s release is affirmed.
We concur: EPSTEIN, P.J., MANELLA, J.
In re Gray