Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BH005917 Peter Paul Espinoza, Judge.
Edmund G. Brown Jr., Attorney General, Julie L. Garland, Assistant Attorney General, Julie A. Malone and Gregory J. Marcot, Deputy Attorneys General, for Appellant.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Respondent.
ALDRICH, J.
In 1979, respondent John Myles was convicted of first degree murder and assault with a deadly weapon with a firearm enhancement. He was sentenced to a prison term of 27 years to life. In August 2006, a panel of the Board of Parole Hearings (Board) found him suitable for parole. In January 2007, Governor Arnold Schwarzenegger reversed the Board’s decision, concluding Myles’s release would pose an unreasonable risk to public safety. In a petition for a writ of habeas corpus filed in the superior court, Myles challenged the Governor’s decision on the ground it was not supported by “some evidence.” The superior court agreed with Myles, and accordingly ordered the Governor’s decision vacated, the Board’s decision reinstated, and Myles released in accordance with the parole date calculated by the Board. Appellant Gary Swarthout, acting warden of the prison where Myles is incarcerated (hereinafter Warden), appeals from the trial court’s order, contending (1) some evidence supported the Governor’s decision, and (2) the remedy ordered by the superior court was improper. Because we conclude some evidence supported the Governor’s decision, we reverse the superior court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
1. August 2006 parole hearing and suitability finding.
a. The commitment offense, conviction, and incarceration.
On December 4, 1978, Myles, Freddie Augustus, Jimmy Parrish, and Zack Green were drinking and working on Jeneveve Tramel’s car in front of the Green residence. Myles argued with Augustus and Green. They went inside the residence and continued drinking, while Myles left with Tramel. Myles told Tramel, “ ‘I’m going to jack him off. I’m going to jack him off. You’ll read about me in the paper tomorrow.’ ” Approximately 30 minutes later Myles returned to the Green residence, armed with an automatic pistol. After Augustus allowed Myles into the house, he and Myles argued again. Myles pulled out the gun and shot Augustus three times. Myles then shot at Green, who ran from the house. As Green attempted to hide in some bushes, Myles pulled the trigger three more times, but the gun had run out of ammunition. Myles then fled. Augustus was transported to a hospital, where he died from a gunshot wound to the chest. Green had bullet wounds in his leg, hip, and arm, but survived. Myles turned himself in to police approximately six weeks later, on January 22, 1979. Myles was 33 years old at the time of the crimes.
Myles was convicted of first degree murder and assault with a deadly weapon, with use of a firearm. He was sentenced to a term of 27 years to life in prison. He was received at the California Department of Corrections on August 10, 1979. His minimum parole eligibility date was November 2, 1995. At the time of the 2006 parole hearing, he had been incarcerated for 27 years, and had the lowest possible classification score available to a life inmate.
b. Prior criminal record and personal history.
Myles had no juvenile criminal history. However, as an adult he had “a long criminal history, including a lot of alcohol offenses.” Myles’s probation report listed three convictions for driving under the influence (DUI) in 1968, 1972, and 1975; three other charged DUI’s for which he was placed on probation or in a diversion program in 1975 and 1977; and a 1974 DUI charge for which he was convicted of reckless driving. His record also includes convictions for burglary, theft, committing battery on a police officer, and two convictions for disturbing the peace. A Life Prisoner Report listed two additional DUI arrests for which no disposition was recorded; another battery arrest for which no disposition was recorded; a 1967 arrest for destroying evidence and being drunk in public; and an unspecified vehicle offense in 1965. One of the disturbing the peace convictions was originally charged as an attempted murder. At the 2006 parole hearing, Myles explained he had been in a car with his cousin and “a bunch of other gang members.” His cousin and a friend got into an argument, and the cousin “shot one of the guys.”
Myles’s 1979 probation report indicated that he had dropped out of school at the age of 16. He had never been married, but had fathered three children as the result of relationships with two women. He was sporadically employed in a variety of trades, including construction, truck driving, and manufacturing. At the time of the crime, Myles was unemployed. He, along with his girlfriend and their children, were supported “totally by aid from the Department of Public Social Services.”
The probation report noted that Myles had a tendency to be “rather secretive, ” and “[a]pparently this tendency to misrepresent himself and to conceal details about his past is a long standing habit. He has used a number of aliases in the past and changes details about his history quite easily. This tendency is shown even when the defendant is relating an innocuous detail such as place of birth. [¶] This tendency to conceal and manipulate makes it extremely difficult to exercise any form of control. Considering the nature of the offense, it would seem that control is badly needed.”
c. Alcoholism.
Myles has a long history of alcoholism. As noted ante, Myles had suffered numerous convictions for driving under the influence. He was participating in a diversion program at the time he committed the murder. Myles’s 1979 probation report indicated that Myles admittedly drank whiskey and “does get drunk, ” but “did not feel that he was an alcoholic.” He believed he became more sociable when drinking. The probation report noted: “Even a casual glance at the defendant’s prior record indicates that he has a serious drinking problem. He has been arrested at least ten times for alcohol related offenses. It is noted that the present offense occurred after the defendant and his companions had been consuming alcoholic beverages. Yet, the defendant states that he does not believe that he is an alcoholic. [¶] While this may be a question of semantics dealing with the definition of alcoholism, it seems more likely that the defendant tends to underrate his problem and has little awareness of its extent. Lacking such insight, he has never been motivated to curtail his abuse.”
According to comments made at the 2006 parole hearing, Myles’s 2004 psychological report indicated he had “alcohol abuse, which is in institutional remission.” The panel noted that Myles had been participating in Alcoholics Anonymous (AA) “for some period of time.” Myles admitted at the 2006 hearing that he had been intoxicated at the time he committed the shooting, and acknowledged that his drinking led to the crime. In 1979, he had been unwilling to admit he was an alcoholic because he believed it was a sign of weakness. Looking back, however, Myles recognized that he was an alcoholic and acknowledged that he had “really needed help.” He had attended Alcoholics Anonymous (AA) prior to his incarceration, but had not taken it seriously. After his conviction, he “took it real seriously.” When asked whether he considered himself an alcoholic, Myles replied, “I sure do.” He further explained: “I didn’t feel I ever been a bad person except when I drank alcohol. I was out of control when I was drinking that alcohol, and I didn’t want to admit it or take it real seriously. But now since [I]... no longer drink and wouldn’t even take a drink if I had it right now, ... because I know what alcohol will do to me....” Myles avowed that, although he had had many opportunities to drink inmate-manufactured alcohol in prison, he had declined because he understood his alcohol problem. Furthermore, he believed that his diabetes precluded him from drinking, in that “if I drink alcohol that is going to kill me.... So alcohol days is over for me.” Myles affirmed that if granted a parole date, he would continue to participate in AA. However, he had been unable to locate an AA sponsor while still incarcerated.
The record before us does not contain any of Myles’s psychological evaluations. We therefore rely on the comments of the panel members to glean limited information regarding the content of such evaluations.
At the 2005 parole hearing, Myles had likewise affirmed that he was an alcoholic. A deputy commissioner observed at that hearing that, despite the requests of previous parole panels, Myles had declined to participate in AA while incarcerated until approximately 2001. By the time of the 2005 hearing, Myles was able to answer questions regarding the AA 12 steps. Myles explained that a commissioner in his previous parole hearing (presumably the 2003 hearing), had been “pretty hard on me about them steps. So I learned the steps and I really appreciate what he done because... this here is pretty serious stuff.”
d. Prison conduct.
Since his incarceration, Myles had what the Board panel characterized as a “relatively positive adjustment history.” He had incurred three “CDC 115s” and thirteen “CDC 128-A’s, ” a record the presiding commissioner characterized as “excellent.” The three serious rules violations were for refusing to submit to a urinalysis in January 1989 after a corrections officer smelled marijuana wafting from a cell Myles shared with another inmate, and for being 20 minutes late for “screen counts” in October 1979 and July 1980. Eleven of the thirteen CDC 128-A “counseling chronos” are reflected in the record; none involved actual violence or substance abuse. However, a counseling chrono from May 1988 documented an incident in which Myles verbally threatened a correctional officer, saying “ ‘I’m gonna bust your head punk.’ ”
A “ ‘CDC 115’ ” refers to a rules violation report that documents misconduct that is believed to be a violation of law or is not minor in nature. (In re Roderick (2007) 154 Cal.App.4th 242, 249, fn. 3; Cal. Code Regs., tit. 15, § 3312, subd. (a)(3).)
A “Custodial Counseling Chrono” (CDC Form 128-A) documents minor misconduct and counseling provided for it. (In re Roderick, supra, 154 Cal.App.4th at p. 269, fn. 23; In re Smith (2003) 109 Cal.App.4th 489, 505; Cal. Code Regs., tit. 15, § 3312, subd. (a)(2).)
A rules violation report indicates that on May 14, 2007, tar heroin was discovered in an eyeglass case belonging to Myles during a random search of his bunk. In an institutional disciplinary proceeding, Myles pleaded not guilty and averred that someone else put the heroin in the case. Myles was found to have been in possession of a controlled substance, a serious rules violation. As the parties acknowledge, this incident is not germane to the question of whether, as of January 2007, the Governor’s decision was supported by some evidence, but is only relevant on the question of the proper remedy. Because we conclude the Governor’s decision was supported by some evidence, we do not reach the question of the proper remedy when evidentiary support is lacking.
The 10 instances documented in the record showed Myles was counseled as follows: (1) in July 1994, for having an untidy bed area; (2) in January 1990, for displaying a negative attitude and becoming loud and boisterous when his job performance was criticized; (3) in October 1989, for taking a shower in violation of a correctional officer’s orders; (4) in May 1988, for turning his tools in late; (5) also in May 1988, for verbally threatening a correctional officer; (6) in March 1988, for being absent from his work assignment; (7) in December 1985, for returning to his wing from the yard 45 minutes late; (8) in October 1985, for being absent from his cell at lock up; (9) in July 1985, for having an unexcused absence from work; and (10) in November 1984, for having an unauthorized covering on his cell window. The panel discussed a 2005 CDC 128-A with Myles at the parole hearing, involving an incident in which Myles did not “get down” as ordered by corrections personnel. Myles explained that his failure to do so was due to medical problems affecting his back and leg. After the incident, a “medical chrono” was written exempting him from the requirement to “get down.”
Myles had earned his General Education Degree (GED) while incarcerated. He had become certified in air conditioning/refrigeration and appliance repair, and had worked as a porter. He had participated in a variety of self-help programs, including Alternatives to Violence. In addition to AA, Myles had participated in Narcotics Anonymous (NA). He was also attending a Bible study. His file contained a positive “chrono” from a correctional officer who averred that Myles always performed his work in a timely manner, displayed a high level of respect and tolerance in his interactions with staff and inmates, displayed “humanitarian qualities” when dealing with the inmate population, and set a good example for younger inmates.
e. Mental and physical health.
Myles’s 2004 psychological evaluation stated that his risk of dangerousness and violence if released into society was significantly lower than that of the average inmate, a conclusion consistent with a 2001 psychological evaluation. The 2004 evaluation also noted that a “personality disorder not otherwise specified with antisocial features” had been “predominately resolved.” Myles’s Global Assessment of Functioning score was 85, which the Board characterized as “relatively high.” A 2003 psychological evaluation, however, indicated that Myles probably posed a moderate degree of threat to the public if released.
At the time of the 2006 parole hearing, Myles was 60 years old and suffered from diabetes, high blood pressure, and asthma. He had undergone triple bypass surgery in 1998.
f. Remorse and accountability for the crimes.
Myles admitted at the 2006 parole hearing that the description of the crimes set forth ante was correct. He clarified that the men had been drinking and gambling throughout the day. The argument occurred when the others accused him of cheating. When the men argued, Augustus hit Myles in the back of the neck and chest with a broken bottle. Myles went home, retrieved a weapon, returned to the house where Augustus and Green were, and committed the shootings. He was under the influence of alcohol at the time.
When asked whether he shot in self-defense, Myles replied, “No. Not really. When I look at it, ... it’s not self defense.... I did something that I regret for the rest of my life about taking somebody’s life... I can’t justify that.” “I took the law in my own hands.... And what I know now, if anything ever happen[ed] like that again, you know, I would call... the police.” He stated: “What I done, you know, I can’t even begin to think that it was justified or make some excuses... for myself for what happened, even though I got stabbed, but that was no right for me to kill nobody.” Instead he should have called police. He explained: “I was no law enforcement. I didn’t have no right to carry no gun. I didn’t have no right to kill nobody. And if I was given the opportunity right this moment, and I mean every fiber of my being, I would give Mr. Augustus his life back....”
A “Prisoner Evaluation Report” prepared in 2006 recounted that Myles made the following averments to the evaluator about the crime: “Freddie Augustus would not have died, had it not been for Zack Green starting it, ” and the situation would not have escalated if Augustus had “stayed out of the fight between Zack Green and himself.”
g. Post-release plans.
Myles planned to live with his sister if paroled, a plan she confirmed in writing. He presented a variety of support letters offering assistance. An aunt who lived in Las Vegas averred that Myles’s family was “ready and willing to support him both morally and physically to help him get on his feet again.” He did not have employment lined up but intended to take whatever job was available to him. Another aunt averred she would help him obtain employment. A letter from the “Love Improvements Incorporated” company and transitional living home guaranteed him a job and housing upon release.
h. The Board’s decision.
The Board concluded Myles was suitable for parole and would not pose an unreasonable risk of danger to society if released. The Board observed that Myles had no juvenile record; had enhanced his ability to function within the law through participation in self-help, therapy, NA, and AA; had obtained his GED; had completed vocational training; had maintained positive institutional behavior; and had participated in institutional job assignments. He had remained discipline-free since 1989, and had shown signs of remorse indicating his understanding of the nature and magnitude of the offense and a desire to change. Myles’s maturity reduced the probability of recidivism, and his parole plans were realistic. His diabetes and prior heart problems had limited his mobility. The commissioner opined, “I think you finally get it, and you have shown remorse for your crime today.”
2. The Governor’s reversal.
Exercising his constitutional authority to review the Board’s decisions (Cal. Const., art. V, § 8, subd. (b)), on January 10, 2007, the Governor reversed the Board’s suitability finding. The Governor acknowledged the numerous positive factors favoring a suitability finding, including that Myles had earned his GED; had taken courses related to infectious diseases; had completed vocational training in household appliance repair; had worked in the prison’s optical laboratory, the textiles department, and as a porter and janitor; and had availed himself of self-help and therapy programs such as AA, NA, Breaking Barriers, and Alternatives to Violence. The Governor also noted Myles’s “solid relationships and close ties with supportive family and friends, ” as well as his plans to live with his sister upon release.
Despite these “creditable gains, ” the Governor found the positive factors outweighed by several negative factors. In the Governor’s view, the atrocious nature of the commitment offense was, by itself, enough to cause him to conclude Myles’s release from prison would pose an unreasonable public safety risk. In addition, the record suggested Myles “still appears to place responsibility” for the crime on the victims. The Governor also pointed to Myles’s “ ‘very disturbing’ ” criminal record, which included numerous alcohol-related offenses and DUI’s. The Governor opined that Myles’s criminal history demonstrated his “inability or unwillingness to conform his behavior to the rules of free society, ” militating against release. The Governor also observed that the district attorney’s office opposed parole in part based on Myles’s history of alcohol abuse. The Governor reasoned, “given the current record before me, and after carefully considering the very same factors the Board must consider, I find that the negative factors weighing against Mr. Myles’ parole suitability presently outweigh the positive ones. Accordingly, ... I believe his release would pose an unreasonable risk of danger to society at this time....”
3. Procedural history subsequent to the Governor’s reversal.
Myles initially challenged the Governor’s decision via a petition for a writ of habeas corpus filed in July 2007, which was denied by the superior court on October 29, 2007. Myles’s subsequent petition filed in the California Supreme Court was likewise denied, without prejudice to filing a new petition in light of the then-recent decision in In re Lawrence (2008) 44 Cal.4th 1181.
On April 2, 2009, Myles filed the instant habeas petition in the superior court. He urged that the Governor’s decision was not supported by some evidence, in that, inter alia, the Governor had not articulated a nexus between the cited factors and current dangerousness. To the contrary, Myles argued, his most recent psychological report stated that his risk of violence would be less than the average inmate. Myles acknowledged that the commitment offense was heinous, but urged that it lacked predictive value on the question of his current risk to society if released. The superior court issued an order to show cause and appointed counsel for Myles.
On October 14, 2009 the superior court granted the petition, ruling that the record lacked “ ‘some evidence’ ” to support the determination that Myles currently posed a danger to society. The court concluded the record did not support the Governor’s finding that Myles lacked remorse or attempted to shift blame to the victims. It found the crime was heinous, and Myles did have a prior criminal record, but concluded the Governor had not articulated a nexus between these facts and a finding of current dangerousness. Accordingly, it ordered the Governor’s decision vacated, the panel’s decision reinstated, and Myles released in accordance with the parole date calculated by the Board.
The Warden filed a timely notice of appeal (Pen. Code, § 1507) and a petition for a writ of supersedeas. We granted the petition and stayed the superior court’s October 14, 2009 order pending further order of this court.
DISCUSSION
1. Standard of review.
“When a superior court grants relief on a petition for habeas corpus without an evidentiary hearing, as happened here, the question presented on appeal is a question of law, which the appellate court reviews de novo. [Citation.] A reviewing court independently reviews the record if the trial court grants relief on a petition for writ of habeas corpus challenging a denial of parole based solely upon documentary evidence.” (In re Lazor (2009) 172 Cal.App.4th 1185, 1192; see also In re Rosenkrantz (2002) 29 Cal.4th 616, 677; In re Criscione (2009) 180 Cal.App.4th 1446, 1458.)
2. Applicable legal principles.
Pursuant to Penal Code section 3041, subdivision (a), the Board shall normally set a parole release date one year prior to an inmate’s minimum eligible parole release date, unless it determines that public safety requires a lengthier period of incarceration. (Pen. Code, § 3041, subd. (b); In re Lawrence, supra, 44 Cal.4th at p. 1204; In re Shaputis (2008) 44 Cal.4th 1241, 1256; In re Shippman (2010) 185 Cal.App.4th 446, 454.) Release on parole is the rule, rather than the exception. (In re Lawrence, supra, at p. 1204; In re Smith (2003) 114 Cal.App.4th 343, 351.)
When the Board determines an inmate convicted of murder is suitable for parole, the Governor has the constitutional authority to conduct a de novo review of the Board’s decision. (Cal. Const., art. V, § 8, subd. (b); Pen. Code, § 3041.2; In re Lawrence, supra, 44 Cal.4th at pp. 1203-1204; In re Ross (2010) 185 Cal.App.4th 636, 638.) In conducting this review, the Governor is required to consider the same factors considered by the Board, which are specified by regulation. (Cal. Const., art. V, § 8, subd. (b); In re Lawrence, supra, at p. 1204; Cal. Code Regs., tit. 15, § 2402, subds. (c) & (d).) However, the Governor has discretion to be “ ‘more stringent or cautious’ ” than the Board in determining whether a defendant poses an unreasonable public safety risk. (In re Shaputis, supra, 44 Cal.4th at p. 1258; In re Prather (2010) 50 Cal.4th 238, 257, fn. 12.)
“Such information shall 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. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.” (Cal. Code Regs., tit. 15, § 2402, subd. (b).)
Circumstances tending to establish unsuitability for parole include that the prisoner (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) has a previous record of violence; (3) has an unstable social history; (4) 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 or jail. (Cal. Code Regs., tit. 15, § 2402, subd. (c); In re Lawrence, supra, 44 Cal.4th at p. 1202, fn. 7; In re Rosenkrantz, supra, 29 Cal.4th at pp. 653-654.)
Circumstances tending to show suitability for parole include that the inmate (1) does not have a juvenile record of assaulting others or committing crimes with the potential of personal harm to victims; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his or her life, especially if the stress built up over a long period; (5) committed the crime 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 suggesting an enhanced ability to function within the law upon release. (Cal. Code Regs., tit. 15, § 2402, subd. (d); In re Lawrence, supra, 44 Cal.4th at p. 1203, fn. 8; In re Rosenkrantz, supra, 29 Cal.4th at p. 654.)
The foregoing factors are general guidelines, and all reliable, relevant information must be considered. (Cal. Code Regs., tit. 15, § 2402, subd. (b); In re Lawrence, supra, 44 Cal.4th at p. 1203; In re Shaputis, supra, 44 Cal.4th at p. 1257; In re Reed (2009) 171 Cal.App.4th 1071, 1080.) The overarching consideration is public safety. (In re Shaputis, supra, at p. 1254; In re Lawrence, supra, at p. 1210; In re Shippman, supra, 185 Cal.App.4th at p. 455.)
Our review of the Governor’s decision is deferential. (In re Lawrence, supra, 44 Cal.4th at p. 1204; In re Shaputis, supra, 44 Cal.4th at p. 1254; In re Rosenkrantz, supra, 29 Cal.4th at p. 665.) “[T]he judicial branch is authorized to review the factual basis of a decision... denying parole in order to ensure that the decision comports with the requirements of due process of law, but... 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, at p. 658; In re Lawrence, supra, at p. 1205.) “Only a modicum of evidence is required. Resolution of any conflicts in the evidence and the weight to be given the evidence” are matters within the authority of the Governor. (In re Rosenkrantz, supra, at p. 677; In re Lawrence, supra, at p. 1226.) “[T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor, but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious. It 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 Governor’s 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. (In re Rosenkrantz, supra, at p. 677; In re Shaputis, supra, at pp. 1260-1261; In re Lawrence, supra, at p. 1204; In re Burdan (2008) 169 Cal.App.4th 18, 28.)
On the other hand, the standard of judicial review of parole decisions “ ‘certainly is not toothless.’ [Citation.] ‘[I]n light of the constitutional liberty interest at stake, judicial review must be sufficiently robust to reveal and remedy any evident deprivation of constitutional rights.” (In re Criscione, supra, 180 Cal.App.4th at p. 1458.) Simply pointing to the existence of an unsuitability factor is insufficient. “[N]ot only must there be some evidence to support the [Governor’s] factual findings, there must be some connection between the findings and the conclusion that the inmate is currently dangerous.” (Ibid.) Thus, while the aggravated nature of the inmate’s offense can, by itself, constitute a sufficient basis for denying parole, that is only so when the circumstances of the commitment offense, considered in light of other facts in the record, continue to be predictive of current dangerousness many years after commission of the offense. (In re Lawrence, supra, 44 Cal.4th at p. 1221; In re Shaputis, supra, 44 Cal.4th at p. 1255; In re Rosenkrantz, supra, 29 Cal.4th at p. 682; see also In re Scott (2005) 133 Cal.App.4th 573, 594-595.)
3. The Governor’s decision was supported by “some evidence.”
As noted, the Governor pointed to the following factors in his reversal: the egregious nature of the crime; Myles’s failure to accept responsibility for his actions; and his disturbing criminal history, including numerous alcohol-related convictions. In the context of relating the district attorney’s opposition, the Governor also referenced Myles’s history of alcohol abuse. We examine each of these factors in turn.
The Warden argues that the Governor relied on Myles’s “institutional misconduct” as a basis for the unsuitability determination. The Warden posits that, although the Governor did not “specifically state that he relied on Myles’s institutional misconduct as a basis for his decision, ” the fact the Governor mentioned Myles’s disciplinary history in a separate paragraph in his decision “suggests that he did consider it as a factor weighing against Myles’s suitability for parole.” The Warden’s argument is not persuasive. While prison misconduct, including CDC 128-A counseling incidents, can under appropriate circumstances suggest unsuitability, there is no indication the Governor came to such a conclusion here. (See In re Reed, supra, 171 Cal.App.4th at p. 1084; cf. In re Lawrence, supra, 44 Cal.4th at p. 1224.) A fair reading of the Governor’s reversal does not support the conclusion that he considered Myles’s institutional disciplinary history as either a negative or a positive factor. Furthermore, the Warden’s contention that Myles was counseled “most recently in 2005” is disingenuous. As discussed at the 2006 hearing, Myles was counseled for failing to “get down.” Myles, who was 60 years old at the time of the hearing, explained he failed to do so due to medical problems with his back and leg. The deputy commissioner observed that “there is a medical chrono that was written after that” that “allows you to not get... down in a situation as such, ” and observed that for that reason, Myles was wearing a “lime colored vest” at the hearing. Under these circumstances the 2005 incident cannot be considered an indicator of Myles’s dangerousness.
First, there is no question the crime was especially heinous and atrocious. Multiple victims were attacked in the same incident; the shooting was motivated by a trivial argument; and the offense was carried out in a calculated manner, in that Myles went home, got a gun, and returned to shoot his friends. (See Cal. Code Regs., tit. 15, § 2402, subd. (c)(1).) Moreover, it cannot be said that the incident was the result of emotional stress that was unusual or unlikely to recur. (See In re Shaputis, supra, 44 Cal.4th at p. 1259.) It was instead the result of Myles’s longstanding and unaddressed alcoholism. Nor was Myles an impetuous youth at the time: he was a 33-year-old adult. Indeed, Myles does not dispute that the crime was atrocious and heinous.
The second factor cited by the Governor, Myles’s criminal history, is likewise borne out by the record. As detailed ante, Myles has suffered a plethora of alcohol-related offenses, as well as convictions for burglary, theft, battery on a police officer, and disturbing the peace. While all but one of these crimes were nonviolent, they nevertheless demonstrate his inability to comply with the law during a 10-year period before he was incarcerated.
The third factor relied upon by the Governor, Myles’s purported attempts to place blame on the victims, is not supported by the record. In support of this contention, the Governor explained: “According to the 2006 Life Prisoner Evaluation, Mr. Myles said he fought with Mr. Green before leaving with Ms. Tramel. Mr. Myles also claimed that Mr. Augustus stabbed him with a broken bottle. When the 2005 Board asked Mr. Myles why he shot Mr. Augustus, he responded, ‘[b]ecause he stabbed me.’ But he told his 2006 Life Prisoner evaluator that ‘Freddie Augustus would not have died, had it not be[en] for Zack Green starting it.’ He also said, ‘it would never have escalated if Freddie Augustus had stayed out of the fight.’ But the reporting witnesses do not corroborate Mr. Myles’ claim that he was stabbed. In fact, although Mr. Myles denies having a knife, two witnesses told police that Mr. Myles pulled out a knife during the argument.”
An inmate’s lack of remorse or insight into the crime is a factor that may support an unsuitability finding. (See, e.g., In re Shaputis, supra, 44 Cal.4th at p. 1260; In re Rozzo (2009) 172 Cal.App.4th 40, 62-63; In re Smith (2009) 171 Cal.App.4th 1631, 1639.) Here, however, the cited portions of the record do not provide reliable evidence that, as of 2006, Myles lacked remorse or failed to take responsibility for the crimes. As discussed ante, at the 2006 hearing Myles admitted committing the shooting, admitted it was not justified, and admitted alcohol was a factor in the crimes. He did not claim to have shot in self-defense. His account that the shooting was the culmination of an argument between the parties is consistent with the information in the record. Regardless of whether Myles or his friends started the argument, the pertinent point is that Myles accepted responsibility for shooting them after the argument transpired. Likewise, Myles’s account of being stabbed with a bottle, whether accurate or not, cannot fairly be viewed as an attempt to shift blame. Whether or not the victim stabbed Myles, Myles admitted he obtained a gun and committed the murder approximately one-half hour later. At the 2006 hearing, he did not claim he shot because he was defending himself against an imminent bottle attack. Similarly, the question of whether Myles had a knife is not particularly germane to the issues at hand. He was not convicted of a crime related to knife use, and, as far as the record before us reveals, his purported possession of a knife played no role in the murder. Indeed, it cannot be discerned from the record before us that Myles’s statements regarding the knife, the bottle, and the genesis of the argument were, in fact, inaccurate. (See In re Palermo (2009) 171 Cal.App.4th 1096, 1112, disapproved on another point in In re Prather, supra, 50 Cal.4th 238.)
This case is distinguishable from others in which an inmate was found to lack insight because he or she denied guilt or minimized responsibility for the crime. (Cf. In re Shaputis, supra, 44 Cal.4th at p. 1260 [lack of insight shown where, despite evidence to the contrary, inmate still claimed his shooting of his wife was an accident]; In re Rozzo, supra, 172 Cal.App.4th at p. 61 [inmate lacked insight where he failed to acknowledge participating directly in killing the victim and denied the racial motivation for the crime]; In re Smith, supra, 171 Cal.App.4th at p. 1639 [evidence supported conclusion that inmate initiated attack on her child and was the principal aggressor; inmate’s insistence that she did not participate in the beating showed lack of insight and refusal to accept responsibility]; In re Lazor, supra, 172 Cal.App.4th at p. 1202.) By these conclusions, we do not reweigh the evidence or require the Governor to credit Myles’s version of events. (See In re Criscione (2009) 173 Cal.App.4th 60, 73-74.) The point is that, regardless of the accuracy of Myles’s statements, at the time of the 2006 hearing they could not fairly be characterized as an attempt to shift blame or deny guilt. Thus, the evidence cited by the Governor does not support the conclusion that Myles failed to accept responsibility for the crime.
Finally, we turn to the issue of Myles’s alcoholism. Both the commitment offense and Myles’s criminal history were largely outgrowths of his alcohol abuse. The record contains “some evidence” from which the Governor could conclude that, as of 2006, it was not certain Myles had successfully addressed the crucial issue of his alcoholism for a sufficient period of time. Myles urges the opposite conclusion, arguing that “[b]ecause a majority of [his] offenses were alcohol offenses, the effect of those offenses is immediately mitigated by [his] present commitment to his sobriety.” According to Myles, the Governor’s decision failed to “take into account 30 years of rehabilitation.” This argument is not entirely accurate. The record demonstrates that, despite his long history of alcohol-related offenses, Myles resisted participation in AA for at least the first 22 years of his incarceration. Myles’s AA participation apparently began in 2001, but he was unable to describe the 12 steps until the 2005 hearing. This circumstance suggests that his participation in the program was, until that point, superficial. Myles had been participating in a diversion program and attending AA meetings prior to the 1979 murder, but did not take them “seriously” and continued to drink, indicating mere attendance at meetings does not, for him, necessarily demonstrate rehabilitation. Thus, the record does not demonstrate “30 years of rehabilitation.” Instead, the record shows an inmate who declined to obtain help for his alcoholism for decades, even after his incarceration and history of alcohol-related offenses. The record therefore does not reflect that Myles had “fully committed himself to intensive rehabilitative efforts designed to address this behavior” until relatively late in his incarceration. (See In re Shippman, supra, 185 Cal.App.4th at p. 463.)
Under these circumstances, we conclude the Governor’s decision was supported by some evidence. The Governor could reasonably conclude that Myles’s belated failure to address his alcoholism, in conjunction with his criminal history and the heinous nature of the commitment offense, demonstrated that in 2006, his release posed a safety risk. The murder was the culmination of a pattern of lawbreaking due to Myles’s long-term alcohol abuse. Where the commitment offense is not an isolated incident committed while the inmate was subject to unusual emotional stress, but instead is part of a pervasive pattern of criminality, the inmate’s criminal history may be an indicator of current dangerousness. (See In re Shaputis, supra, 44 Cal.4th at p. 1259.) By the time of the 2006 hearing Myles had begun to genuinely address his alcoholism, and had made significant strides. However, in light of the longstanding nature of his problem, reaching back to at least 1967, and his failure to attend AA until a few years before the hearing, the Governor was not required to assume that, as of 2006, Myles had conquered the root cause of his criminality. Where an inmate has “failed to make efforts toward rehabilitation... the aggravated circumstances of the commitment offense may well continue to provide ‘some evidence’ of current dangerousness even decades after commitment of the offense.” (In re Lawrence, supra, 44 Cal.4th at p. 1228.) Myles’s criminal history demonstrates his inability or unwillingness to conform his behavior to the law when he drinks. It was therefore a reasonable inference that releasing Myles before his alcoholism was sufficiently addressed would pose an unreasonable risk of danger to the community. Among the factors to be considered by the Board and the Governor is whether the inmate will be able to live in society without committing additional antisocial acts. (In re Reed, supra, 171 Cal.App.4th at p. 1081; In re Rosenkrantz, supra, 29 Cal.4th at p. 655.) “Antisocial acts” include, in addition to crimes of violence, actions posing a risk of causing personal or financial harm to others. (In re Reed, supra, at p. 1081.) As the Governor noted, Myles has a significant criminal history involving non-violent crimes, particularly DUI’s. It is axiomatic that driving under the influence of alcohol can readily result in death or injury to others.
Myles points out that he has not been disciplined for alcohol use while in prison, and that in any event his diabetes makes it improbable that he will imbibe if he is released. While these arguments are not without force, “the Governor, not prison staff and psychologists, and not us, is the trier of fact as to whether defendant remained a threat to public safety in 2006, considering all the statutory and regulatory factors regarding the nature of his commitment offense and his preincarceration and postincarceration history, including his rehabilitative efforts, current demeanor, mental state, and plans if paroled. [Citation.] ‘ “[T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor.” ’ [Citation.]” (In re Ross (2009) 170 Cal.App.4th 1490, 1510.)
Myles’s case is analogous in some respects to In re Shaputis, supra, 44 Cal.4th 1241. There, the 71-year-old petitioner had remained discipline-free throughout his incarceration, had obtained numerous commendations from prison staff, and had participated in many prison programs, including AA and NA. However, he had a long history of violence and physical abuse of his family members, including the victim, whom he eventually shot and killed after drinking heavily. (Id. at pp. 1247-1249.) Shaputis persisted in his view that the shooting had been an accident, despite evidence to the contrary. A psychological report found he presented a low risk of future violence as long as he maintained his sobriety, but that his risk of violence was unpredictable should he relapse into alcoholism. The report also noted “a ‘schizoid quality’ ” to Shaputis’s interpersonal relationships, and observed he had limited insight into his antisocial behavior and the role his alcohol abuse played in his history of domestic violence. (Id. at pp. 1250-1252, 1260.) In re Shaputis upheld the Governor’s reversal of the Board’s parole grant. (Id. at pp. 1245-1246.) The murder was not an isolated incident, but was the culmination of many years of violent behavior. (Id. at p. 1259.) Shaputis’s lack of insight and failure to take responsibility for the shooting, coupled with his violent history and his recent psychological reports, provided evidence in support of the conclusion he remained dangerous. (Id. at p. 1260.) Although his age, poor health, and many years of sobriety could suggest he would not reoffend, this was a question for the Governor, not to be recalibrated by the courts. (Ibid.)
Similarly, here, Myles’s crimes were the culmination of an escalating pattern of antisocial and criminal behavior, driven by many years of unacknowledged alcohol abuse. The crime was not an isolated incident, brought about in response to an unusually stressful situation, unlikely to recur. Like Shaputis, it can be inferred that Myles lacked insight into his behavior, in that he failed to seek help for his alcoholism until many years after the murder and his incarceration. By the time of the 2006 hearing, Myles had made apparent strides not only in acknowledging and taking responsibility for the commitment offense, but in acknowledging and overcoming his alcoholism. But given the recency of his participation in AA as of 2006, and his criminal record, we think the Governor could legitimately conclude more time was needed to determine whether Myles’s alcoholism was satisfactorily resolved. Thus, as of 2006, the Governor could reasonably conclude Myles’s release would pose a danger to public safety.
We caution that the timing of Myles’s AA participation cannot eternally provide “some evidence” that his release would present an unreasonable risk to society. We simply hold that, given the longstanding nature of Myles’s alcoholism, his belated attendance at AA, and the comparatively short duration of his participation in the program as of 2006, further consistent progress was desirable before the Governor would be compelled to conclude Myles’s alcoholism was no longer a significant risk factor.
Myles argues that the Governor’s decision failed to explicitly articulate a rational nexus between the cited factors and current dangerousness. (See In re Lawrence, supra, 44 Cal.4th at p. 1227; In re Ross, supra, 170 Cal.App.4th at p. 1497.) Admittedly, the Governor’s decision is not a model of clarity. This is unsurprising, given that it was made prior to, and without benefit of, our Supreme Court’s decisions in Lawrence and Shaputis. Prior to those decisions, it was unclear that such an express nexus was required. (In re Ross, supra, 185 Cal.App.4th at p. 639 & fn. 1.) Nonetheless, we believe the Governor’s decision, fairly read, sufficiently articulates the basis for his view that in 2006 Myles’s release would have posed a danger to the community. The Governor not only referenced the factors discussed ante, but also stated his view that Myles’s criminal history, including his alcohol offenses, demonstrated his inability or unwillingness to conform his behavior to the rules of free society. As we have discussed, this formed the essential basis for the Governor’s decision, and suffices here. The Governor’s decision reflects due consideration of the specified factors as applied to Myles, and provides a minimal articulation of a nexus between those factors and public safety. (In re Lawrence, supra, 44 Cal.4th at p. 1204; In re Rosenkrantz, supra, 29 Cal.4th at p. 677; In re Ross, supra, 170 Cal.App.4th at p. 1497.)
DISPOSITION
The trial court’s order granting the petition for writ of habeas corpus and vacating the Governor’s denial of parole is reversed.
We concur: CROSKEY, Acting P. J., KITCHING, J.