Opinion
NOT TO BE PUBLISHED
Appeal from an order granting a petition for a writ of habeas corpus by the Superior Court of Orange County, Thomas M. Goethals, Judge. Super. Ct. No. M-11635
Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Assistant Attorney General, Heather Bushman and Kathleen R. Frey, Deputy Attorneys General, for Appellant.
Law Office of Traci S. Mason and Richard Pfeiffer for Respondent.
OPINION
RYLAARSDAM, J
The State of California, on behalf of the Board of Parole Hearings (Board), appeals from a superior court order granting Michael David Miller’s petition for a writ of habeas corpus. The order directed the Board to conduct a new parole hearing within 45 days and find petitioner suitable for parole unless there is evidence his behavior after June 2007 supports a finding he currently poses an unreasonable risk of danger to society. The Board contends the record of petitioner’s initial parole consideration hearing contains some evidence supporting its decision denying parole. In addition, the Board argues the trial court committed two procedural errors: (1) Ordering a new parole suitability hearing be held within 45 days, contrary to the current statute’s 90 days notice requirement; and (2) directing the Board to find petitioner suitable for parole unless new evidence of current dangerousness is presented, rather than directing it to proceed in accordance with due process. While we agree with the trial court’s substantive ruling, the Board’s procedural objections have merit. Thus, we shall affirm the order vacating the Board’s parole suitability ruling, but reverse the ruling to the extent of the timing of a new hearing and how the Board is to proceed at it.
FACTS AND PROCEDURAL BACKGROUND
In February 1995, while under the influence of methamphetamine, petitioner drove up to Melvin Brown, who was straddling a bicycle, and argued with him over a $20 drug debt. Brown suggested the two “‘go to blows.’” Petitioner drove off, reversed direction, rapidly accelerated to 35 miles per hour, crossed the center median, struck Brown, and drove away without stopping. Brown later died from his injuries.
Several days later, the police spotted petitioner driving a car. Petitioner, who subsequently claimed he was still under the influence of methamphetamine, tried to avoid apprehension by accelerating to nearly 90 miles per hour while driving through residential streets and along heavily traveled thoroughfares before stopping. Inside the car, the police discovered several plastic bags containing methamphetamine, over $300 in cash, a pager, a pipe, “pay-owe” sheets, and a scale. Defendant told the police, “‘It wasn’t a murder’” and claimed he had “‘panicked’” after hitting Brown and fled to avoid retaliation by the victim’s friends.
In 1996, a jury found petitioner guilty of second degree murder, possessing methamphetamine for sale, and felony evasion. The court sentenced him to an indeterminate prison term of 15 years to life. Defendant appealed, challenging the sufficiency of the evidence supporting his murder conviction, plus asserting several evidentiary and instructional errors. In an unpublished opinion, this court affirmed the conviction. (People v. Miller (Oct. 17, 1997, G019681) [nonpub. opn.].)
On June 1, 2007, the Board conducted an initial parole consideration hearing for petitioner. At the hearing, petitioner’s attorney stated his client “accept[ed] full responsibility without reservation of the facts and findings of the court,” but “would not discuss them” with the Board.
Evidence was presented that, while petitioner had some arrests involving drug sales before the crimes resulting in his imprisonment, he had no prior juvenile or adult criminal convictions. He dropped out of high school, became an apprentice electrician, joined the International Brotherhood of Electrical Workers, and worked for a company selling fire safety systems. Petitioner claimed he stopped drinking at age 19, but continued using marijuana and methamphetamine, admitted being an addict, and said “my drug use led to everything.”
Petitioner’s girlfriend was pregnant with their son when he killed Brown. He married the girlfriend, but eventually the two divorced. One of petitioner’s sisters took custody of the child and eventually she and her husband adopted him. The sister subsequently terminated all contact between petitioner and both her and the child.
While in prison, petitioner obtained his GED, completed several college courses, and obtained a certificate in vocational graphic arts. In addition, he attended Narcotics Anonymous (NA) meetings and completed a voluntary 13-week self-help workshop that covered several topics, including anger management, child abuse, domestic violence, and drug and alcohol abuse. He had also completed numerous courses and programs provided through a Christian-based group.
Petitioner had only one minor infraction on his prison discipline record and had the lowest possible custody classification level score. He also had received commendations for his prison work assignments and one for using the Heimlich maneuver to save the life of a fellow prisoner who was choking on food.
The Board received and considered a psychological evaluation from a psychologist. Petitioner told the psychologist he had no intention to harm Brown, but accepted responsibility for his death and had remorse for his actions. The psychological evaluation assessed petitioner at the upper end of the low range for psychopathy and between the medium and high end of the low risk for future violence.
Concerning his plans if paroled, petitioner submitted what one Board member described as a “very complete” résumé concerning his education, skills, and qualifications, job interests, short- and long-term goals, community programs and residence information. Petitioner’s mother and one of his sisters submitted letters stating he could live with them upon his release. Other family members and friends sent letters expressing a willingness to offer him financial, spiritual, and emotional support. A member of a church group sent a letter offering to be petitioner’s sponsor. Petitioner also presented a letter from his former employer that contained a standing offer for a job.
The Orange County District Attorney opposed granting parole. Both petitioner and his attorney spoke in favor of the request. In support of his request petitioner acknowledged “the impact and hardship[]” he had caused Brown’s family, stating “I want to express my remorse and deep sense of sorrow to [his] family and friends....” Petitioner also “apologize[d]... for the harm that I have caused to society at large because I understand the ripple [e]ffect that it caused the family and friends and the community....” And he claimed he was “not the same man that came into the system,” citing his “numerous steps to better myself through programs available to me,” and had “taken great measures to remove that temptation of drugs and to make sure they are no longer a part of my life.”
After a recess, the Board issued its ruling, finding petitioner “not yet suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison.” The Board acknowledged petitioner’s lack of a prior criminal record, exceptional prison disciplinary record, candid admissions concerning his drug use, low custody classification score, academic achievements, prison commendations, plus the “extensive reference to [his] parole plans....” However, citing the facts of Brown’s murder and petitioner’s actions in attempting to flee from the police, the Board found the crimes were “carried out in an especially cruel and callous,” “dispassionate[] and... calculated manner....”
“In a separate decision,” the Board further ruled “it’s not reasonable to expect that parole would be granted at a hearing during the following five years.” Again, the Board cited the cruel, callous, dispassionate, and calculated manner in which petitioner committed his offenses. It also noted the “trivial” motive for his actions. Citing petitioner’s pregnant wife and unborn child, the Board found he “did not make any reference to all the lives you contributed to wrecking due to your drug trafficking and the jeopardy faced by the [arresting] officer....” The Board found “you still lack insight into the nature of the magnitude of this commitment offense and therefore... still present a risk to public safety.” Finally, the Board stated it had also “weighed information contained in [a] confidential file... ” submitted to it.
Petitioner filed a petition for a writ of habeas corpus with the superior court. After receiving the Board’s return and petitioner’s traverse and having “reviewed... all briefs and exhibits filed by the parties, and having received and reviewed in camera the confidential documents lodged with the court... under seal, the court [found][] that the [Board’s] decision... denying... parole release is not supported by ‘“some evidence”’ that [p]etitioner ‘constitutes a current threat to public safety.’” It cited petitioner’s offenses “occurred over 14 years ago when he was on a days-long methamphetamine binge,” the fact petitioner “has been in NA, as well as other self-help programming and is” “a model prisoner” with a “favorable” “psychological evaluation” and “exceptionally viable parole plans.” The court also found the crimes were “both ‘temporally remote’ and ‘mitigated by circumstances indicating the conduct is unlikely to recur.’” It reviewed the confidential material, in camera, made a separate record of the in camera hearing, and ordered both the transcript of that hearing and the confidential material sealed. The court thus concluded neither “the circumstances of the crime alone” nor the confidential material it reviewed in camera supported “the conclusion that [p]etitioner remains a current threat to public safety.”
The court granted the petition and ordered the Board “to hold a new parole suitability hearing within 45 days... and... to find [p]etitioner suitable for parole, unless... evidence of behavior occurring subsequent to the June 2007 parole hearing is introduced... sufficient to support a finding that [he] currently poses an unreasonable risk of danger to society or a threat to public safety if he were released....”
DISCUSSION
1. Standard of Review
The parties attached documents to their pleadings and, according to the trial court’s order, it based its decision on “the petition... all briefs and exhibits filed by the parties, and... the confidential documents lodged with the court and submitted under seal....” The record contains no indication the court received or considered any oral testimony. In light of the fact “the trial court’s findings were based solely upon documentary evidence,” “we independently review the record” on appeal. (In re Rosenkrantz (2002) 29 Cal.4th 616, 677.)
2. The Board’s Initial Parole Suitability Decision
The Board’s first claim is that there was some evidence in the record supporting its decision finding petitioner unsuitable for parole and thus the trial court erred in vacating its decision. We disagree.
Penal Code section 3041, subdivision (b) declares the parole board “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....”
Under the applicable regulations, “a life prisoner shall be found unsuitable for and denied parole if in the judgment of the [Board] the prisoner will pose an unreasonable risk of danger to society if released from prison.” (Cal. Code Regs., tit. 15, § 2402, subd. (a).) In making this determination, the Board shall consider “[a]ll relevant, reliable information available,” 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....” (Cal. Code Regs., tit. 15, § 2402, subd. (b).)
One of the circumstances “tend[ing] to indicate unsuitability for release” is whether “[t]he prisoner committed the [commitment] offense in an especially heinous, atrocious or cruel manner.” (Cal. Code Regs., tit. 15, § 2402, subd. (b)(1).) Among the factors relevant to applying this circumstance are whether there were “[m]ultiple victims” involved “in the same or separate incidents,” the prisoner “carried out [the offense] in [either] a dispassionate and calculated manner” or “in a manner which demonstrates an exceptionally callous disregard for human suffering,” and if “[t]he motive for the crime is inexplicable or very trivial in relation to the offense.” (Cal. Code Regs., tit. 15, § 2402, subd. (b)(1)(A), (B), (D) & (E).)
In In re Rosenkrantz, supra, 29 Cal.4th 616, the Supreme Court considered several issues concerning parole decisions, including the role of the judiciary in reviewing a decision by the Board or Governor. In that case, the prisoner had been convicted of second degree murder for killing a person who had exposed the petitioner’s sexual orientation. The evidence showed the prisoner purchased an Uzi and ammunition, waited outside the victim’s residence all night, and shot the victim when he emerged from his house, including several shots to the head at close range. The prisoner fled and did not surrender to the police for over a month.
On the Governor’s appeal from an order granting the prisoner’s habeas corpus petition, the Supreme Court reversed. With respect to the judiciary’s authority to review a parole decision by the Board or Governor, the Court held “the judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law, but that in conducting such a review, the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation.” (In re Rosenkrantz, supra, 29 Cal.4th at p. 658.)
In applying this standard, the court recognized “the ‘some evidence’ standard is extremely deferential and reasonably cannot be compared to the standard of review involved in undertaking an independent assessment of the merits or in considering whether substantial evidence supports the findings underlying a... decision.” (In re Rosenkrantz, supra, 29 Cal.4th at p. 665.) Thus, “[r]esolution of any conflicts in the evidence and the weight to be given the evidence are within the authority of the Board. [Citation.]” (Id. at p. 656.) Furthermore, “the precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor [or Board],” and “[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. As long as the... decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court’s review is limited to ascertaining whether there is some evidence in the record that supports the... decision.” (Id. at p. 677.)
In addition, the court held “[a] prisoner’s crime constitutes a factor tending to demonstrate unsuitability for parole, where the prisoner committed the offense in an especially heinous, atrocious, or cruel manner [citation]” (In re Rosenkrantz, supra, 29 Cal.4th at p. 678), and “[t]he nature of the prisoner’s offense, alone, can constitute a sufficient basis for denying parole [citations]” (id. at p. 682). The fact that the jury in the prisoner’s case returned a second degree murder verdict did not preclude the Board or Governor from finding the evidence supported a finding of premeditation and deliberation. “[A]lthough the jury apparently accepted evidence received at petitioner’s criminal trial as indicating that petitioner’s emotional stress and motivation for the crime reduced his culpability, the Governor was not required by law to credit the same evidence when exercising his constitutional authority in reviewing a parole decision....” (Id. at p. 679, italics deleted.) Finally, the Supreme Court upheld the Governor’s consideration of the prisoner’s “conduct during the weeks following the crime... support[ed] the... determination that [he] now poses a risk of danger to society.” (Ibid.)
Here, at the time the Board considered petitioner’s suitability for parole, it also relied exclusively on details of his commitment offense and his behavior in attempting to avoid apprehension by the police. As the case law recognizes, this evidence is both relevant and, under some circumstances, can alone suffice to support the denial of parole. (In re Shaputis (2008) 44 Cal.4th 1241, 1255 [“‘the Board or the Governor may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts’”].)
However, while the habeas corpus petition was pending in the superior court, the California Supreme Court issued its decision in In re Lawrence (2008) 44 Cal.4th 1181 clarifying the application of the “some evidence rule” as it relates to the Board or Governor’s decision to deny parole primarily because of the nature of a prisoner’s commitment offense. Lawrence involved a prisoner convicted of first degree murder when, after her lover refused to leave his wife for her, she confronted the wife, shooting and stabbing her to death. The prisoner then fled and remained at large for over 11 years before finally surrendering to authorities. After many years of imprisonment, the Board issued a series of parole suitability findings, which various governors overruled.
The prisoner sought judicial relief and the Supreme Court affirmed the Court of Appeal’s decision vacating the Governor’s overruling the Board’s decision. Noting “the Penal Code and corresponding regulations establish that the fundamental consideration in parole decisions is public safety,” and “ the core determination of ‘public safety’ under the statute and corresponding regulations involves an assessment of an inmate’s current dangerousness” (In re Lawrence, supra, 44 Cal.4th at p. 1205), the court held “if we are to give meaning to the statute’s directive that the Board shall normally set a parole release date [citation], a reviewing court’s inquiry must extend beyond searching the record for some evidence that the commitment offense was particularly egregious and for a mere acknowledgement by the Board... that evidence favoring suitability exists. Instead, under the statute and the governing regulations, the circumstances of the commitment offense (or any of the other factors related to unsuitability) establish unsuitability if, and only if, those circumstances are probative to the determination that a prisoner remains a danger to the public.” (Id. at p. 1212.)
Thus, “[i]t is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public. [¶] Accordingly, when a court reviews a decision of the Board..., the relevant inquiry is whether some evidence supports the decision of the Board... the inmate constitutes a current threat to public safety, and not merely whether [it] confirms the existence of certain factual findings. [Citations.]” (In re Lawrence, supra, 44 Cal.4th at p. 1212.)
Applying this standard, the trial court properly granted petitioner’s habeas corpus petition. As noted, the Board relied solely on the immutable facts of petitioner’s commitment offense without indicating how his criminal activity many years earlier rendered him currently dangerous if released from prison.
The Board argues the nature of petitioner’s commitment offense supports the denial of a parole suitability finding. But the Supreme Court has held “‘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][,]... [n]or 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.]’ [Citation.]” (In re Shaputis, supra, 44 Cal.4th at pp. 1254-1255.) The Board did not explain how the circumstances of petitioner’s criminal activity continued to predict current dangerousness, particularly in light of all the other evidence suggesting otherwise.
The Board further claims it relied on petitioner’s “lack of insight” into the nature of the commitment offense and his role in it. But the record references for these assertions primarily rely on statements petitioner made shortly after his arrest or at trial. The only exception consisted of petitioner’s statements to a correctional counselor that appeared in a report prepared in November 2006, more than six months before the parole suitability hearing. There, petitioner questioned the credibility of one eye witness who testified against him at trial, claimed “swerved” to avoid hitting another bicyclist and “had no intention to hit... Brown.”
But the Board’s reference to petitioner’s comments concerned its “separate decision” finding “it’s not reasonable to expect that parole would be granted... during the following five years,” rather than in its finding he was currently unsuitable for parole. Furthermore, at the hearing, petitioner’s attorney noted his client “does accept the facts and the findings of the court” and “accepts full responsibility without reservation of the facts and findings....” Petitioner also personally acknowledged the role his drug use played in his crimes and both admitted his addiction and presented extensive evidence that he has taken steps to eliminate drug use from his life.
Finally, the Board relies on its finding petitioner failed to “specifically make any reference to the lives [he] wrecked due to his drug trafficking” or “the danger” to “the arresting officer and others” resulting from his attempt to “evad[e] capture.” Again, these comments were made in reference to the “separate decision” on when petitioner would again be eligible to seek parole. Furthermore, it fails to reflect his statements at the hearing in which he “apologiz[ed]... for the harm that I have caused to society at large because I understand the ripple effect that it caused the family and friends and the community of Westminster and Orange County.”
Thus, the trial court properly vacated the Board’s original ruling on petitioner’s parole suitability.
3. The Notice Required for a New Parole Suitability Hearing
At the time of petitioner’s initial parole suitability hearing, Penal Code section 3043 declared “notice of any hearing to review or consider the parole suitability or the setting of a parole date for any prisoner in a state prison shall be sent by the Board... at least 30 days before the hearing to any victim of a crime committed by the prisoner, or to the next of kin of the victim if the victim has died.” (Stats. 2004, ch. 289, § 1.) In November 2008, the electorate enacted Proposition 9, which amended the statute to provide notice of parole hearings needed to be given to a victim or his or her next of kin “at least 90 days before the hearing....” (Pen. Code, § 3043, subd. (a)(1).)
The Board argues the trial court’s directive that a new hearing in this case occur within 45 days violates the amended statute. Petitioner disagrees.
The Board’s argument is correct. The amendment of Penal Code section 3043 was prospective in effect. (Pen. Code, § 3; People v. Alford (2007) 42 Cal.4th 749, 753 [“‘[a] new statute is generally presumed to operate prospectively’”].) It only applied to hearings conducted after its effective date. The mere fact this change will affect petitioner’s future parole hearings did not render it constitutionally suspect. “[A]n ex post facto violation does not occur simply because a postcrime law withdraws substantial procedural rights in a criminal case. [Citation.]” (John L. v. Superior Court (2004) 33 Cal.4th 158, 181; see also Tapia v. Superior Court (1991) 53 Cal.3d 282, 300.)
We conclude the trial court erred in ordering a new parole suitability hearing in less than 90 days of giving notice to Brown’s next of kin.
4. The Validity of the Superior Court’s Remedy
Finally, the Board contends the trial court erred by directing it to find petitioner suitable for parole unless post-June 2007 evidence supports a conclusion he is currently dangerous. The Board acknowledges some cases have issued similar remedies. (See In re Gaul (2009) 170 Cal.App.4th 20, 39-41; In re Singler (2008) 169 Cal.App.4th 1227, 1245.) But it contends a prisoner seeking release on parole is entitled to only due process.
This argument has merit. In Rosenkrantz, the Supreme Court held that if a court concludes “the [Board or Governor’s] decision[]... is not supported by some evidence in the record..., the court should grant the prisoner’s petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law. [Citations.]” (In re Rosenkrantz, supra, 29 Cal.4th at p. 658, fn. omitted.) Recently, the Supreme Court granted a hearing in a case that presents the question of whether the remedy applied in Gaul, Singler, and other similar cases is correct. (People v. Prather, review granted May 13, 2009, S172903.)
Here, given the timing of the Board’s original suitability decision and the fact the Supreme Court clarified the governing principles in In re Lawrence, supra, 44 Cal.4th 1181 while the habeas corpus petition was pending in the trial court, Rosenkrantz’s approach is particularly apt. Lawrence noted that “[i]n the years since” its decisions in Rosenkrantz and In re Dannenberg (2005) 34 Cal.4th 1061 “courts ha[d] struggled to strike an appropriate balance between deference to the Board and the Governor, and meaningful review of parole decisions” (In re Lawrence, supra, 44 Cal.4th at p. 1206), and that because of a “growing tension... in the decisions regarding the precise contours of the ‘some evidence’ standard of review” (ibid.), “a conflict ha[d] emerged concerning the extent to which a determination of current dangerousness should guide a reviewing court’s inquiry into the Governor’s (or the Board’s) decision,” particularly “as to whether aggravated circumstances of the commitment offense, standing alone, provide[d] some evidence that the inmate remains a current threat to public safety.” (Ibid., fn. omitted.)
The Board issued its decision in petitioner’s case before the Supreme Court clarified the analysis used to apply the some evidence standard in cases such as this one. The Board should be afforded an opportunity to consider this new approach in light of Lawrence. Thus, the trial court also erred by directing the Board to find petitioner suitable for parole absent post-June 2007 evidence of current dangerousness.
DISPOSITION
The portion of the superior court order vacating the Board of Parole Hearing’s original parole suitability decision is affirmed. The portion of the order directing a new parole suitability hearing within 45 days and directing the Board of Parole Hearings to set a parole date absent new evidence of current dangerousness is vacated, and the Board is directed to hold a new hearing after giving due notice as currently provided by statute and to proceed in accordance with due process.
WE CONCUR: SILLS, P. J. FYBEL, J.