Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Peter P. Espinoza, Judge, Los Angeles County Super. Ct. Nos. A915177, BH006689.
Michael J. Brennan for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kathleen R. Frey and Michael Rhoads, Deputy Attorneys General, for Respondent.
CHANEY, J.
Petitioner Charmaine Petit is an inmate confined at the California Institution for Women, following a sentence to state prison for 16 years to life upon her 1987 conviction of second degree murder. She began serving her term in prison on August 20, 1987, and had a minimum parole eligibility date of January 1, 1998.
At the time of the parole hearing, she was 52 years old.
On June 25, 2009, the Board of Parole Hearings determined that Petit was not suitable for parole, setting forth various factors, as discussed, infra. The determination became final on October 23, 2009. Petit sought review in the Los Angeles Superior Court, which denied her petition for writ of habeas corpus on March 26, 2010. Petit sought review in our court, and we issued an order to show cause why she should not be granted relief.
Because we hold that the Board’s 2009 decision is not supported by any evidence, we grant the petition, vacate the Board’s decision, and remand the matter to the Board to conduct a new parole suitability hearing consistent with due process and the Supreme Court’s decision in In re Prather (2010) 50 Cal.4th 238.
FACTS
The commitment offense
In 1986, Petit went to the residence of Oliver Williams to retrieve money she had given him to purchase drugs for her. She went into the bedroom of Williams’s roommate, Victor Benjamin. Williams heard noises from Benjamin’s bedroom and went in to investigate. He found Benjamin and Petit, armed with a knife, struggling. Benjamin told Williams that Benjamin had been stabbed; Williams took the knife from Petit and Benjamin threw her on the bed and struck her. Williams left the room to put the knife in the kitchen; when he returned, he saw that Benjamin was on the floor and Petit was bent over him, going through his pockets. As Williams pulled her out of the apartment, Petit struck Williams with an ashtray. Benjamin died as a result of the knife wounds.
Petit has consistently maintained that Benjamin struck her and attempted to assault her sexually; she defended herself with a knife she always carried for protection. She has consistently denied going through Benjamin’s pockets, explaining that she had bent over Benjamin because he was “‘breathing funny.’” Petit has always insisted that she was frightened and did not know what she was doing when she hit Williams with an ashtray.
Petit was convicted by jury of second degree murder; the allegation that the murder was committed with a deadly weapon (a knife) was found true. We affirmed the conviction on December 21, 1989, in appeal No. B030073.
Petit’s social history
Petit grew up in a violent neighborhood. When she was “a little kid, ” one brother was shot in the back at a liquor store after an argument and the other was found hanged on a Navy ship. Petit’s juvenile record includes a sustained petition for attempted robbery in 1973. Petit had a long history of substance abuse, including alcohol, cocaine and phencyclidine. Before imprisonment, Petit participated in two rehabilitation programs, from which she relapsed. At the time of the commitment offense, she was working for the County of Los Angeles.
Petit has two grown children, who call, write and visit her.
Petit’s in-prison disciplinary history
Although her early prison history demonstrates great difficulty in adjusting to prison life, Petit’s last serious disciplinary report (“CDC 115”) was for mutual combat, 10 years ago, in 2000. Her last rule violation (“CDC 128-A”), for smoking, occurred in 2003.
In hearings before the Board of Parole Hearings, the terms “115” and “128” refer to disciplinary reports on the inmate. The “115” report is more serious than the “128, ” sometimes designated as a “128 Chrono” or a “128-A.” Note that, “[t]hough not evidence of any of the listed unsuitability factors, a CDC 128-A may be considered by the Board in reaching its parole decision.” (In re Reed (2009) 171 Cal.App.4th 1071, 1084.) The California Code of Regulations (Cal. Code Regs., tit. 15, § 3312, subd. (a)) provides: “Inmate misconduct shall be handled by: [¶] (1) Verbal Counseling. Staff may respond to minor misconduct by verbal counseling. When verbal counseling achieves corrective action, a written report of the misconduct or counseling is unnecessary. [¶] (2) Custodial Counseling Chrono. When similar minor misconduct recurs after verbal counseling or if documentation of minor misconduct is needed, a description of the misconduct and counseling provided shall be documented on a CDC Form 128-A, Custodial Counseling Chrono. A copy of the completed form shall be provided to the inmate and the original placed in the inmate’s central file. Disposition of any contraband involved shall be documented in the CDC Form 128-A. [¶] (3) Rules Violation Report. When misconduct is believed to be a violation of law or is not minor in nature, it shall be reported on a CDC Form 115 (Rev. 7/88), Rules Violation Report.”
Since then, Petit’s record has been exemplary.
Although in 2005 she was attacked physically by another inmate after leaving church services, she did not fight back. Instead, she appropriately reported the attack to the authorities.
2006 parole hearing
In 2006, the Board denied parole for two years, recommending that Petit remain disciplinary free, participate in self-help therapy, earn positive “chronos, ” and “refine” her parole plans. Petit has fully complied with these directions.
Petit’s institutional programming
Petit’s institutional programming has been excellent.
Petit has acquired skills in Word Processing, Vocational Upholstery, Janitorial Maintenance and Nursing. She is also a certified phlebotomist.
Having completed 50 credits at the University of La Verne, Petit is close to finishing an Associate of Arts degree in Human Services.
The psychological evaluation completed in 2008 reports that Petit has worked full time in the Substance Abuse Program (SAP) as a peer mentor, with extensive training in substance abuse treatment and relapse prevention. The 2008 evaluation sets forth the plaudits she earned since the 2006 parole hearing:
Record excerpts are not edited for grammar or punctuation.
“February 20, 2008
“12 Step Codependency Self Help Group[CODA]. Petit was facilitator and‘demonstrated original and independentthinking, ’ participated in twenty out oftwenty-five groups between September 6, 2007 andFebruary 20, 2008, signed by J. Evans, CODAsponsor”
“February 12, 2008
“Twenty months as Peer Mentor, showed‘Personal growth’ and ‘assistedin organization, ’ signed by CherieBallesteros, Transition Counselor/ForeverFree”
“February 11, 2008
“Participant and Peer Mentor,‘Progress within herself and with others,’ ‘positive attitude, ’ SAP,signed by Octavia Howard, JourneyCounselor/Forever Free”
“February 7, 2008
“‘Positive attitude’ SAP,signed by Arleen Evans, Entry Counselor/ForeverFree”
“February 6, 2008
“Commendation for being a ‘strongleader, ’ ‘dependable, ’‘humbly teaches her peers, ’‘learning to incorporate kindness with agentle touch, ’ SAP”
“January 30, 2008
“Alcoholics Anonymous (AA), NarcoticsAnonymous (NA), six meetings between September19, 2007 and December 5, 2007”
“January 14, 2008
‘Peer mentor’ since May 16, 2006,‘everything there is to do as a mentor,’ ‘reliable, dependable, capable,’ ‘definitely an asset to the ForeverFree Therapeutic Community, ’ signed byEula B. Charles, Program Manager”
“October 2, 2007
Special guest for PATCH Inmate Ministry Team,part of team of praise dancers, ‘dedicatedto this ministry... commended for her devotion toserve others, ’ signed by Reverend Lois M.Woodard, Protestant Chaplain”
“September 18, 2007
“‘Valued member of Hyssop PraiseDancing Troupe... lead dancer, choreographer, andbackground dancer, ’ ‘dedicated,’ outstanding commitment, ’ signed byC. Munerlin, CCI, Mass. Choir Sponsor”
“August 23, 2007
“Young Adult Networking Group (YANG),‘Chrono of excellence, ’‘successfully completed “Seven Habitsof Highly Effective People” a three sessioncourse sponsored by Franklin Covey International,’ July 2–16, 2007”
“August 17, 2007
“Forever Free, ‘asset to peer mentorprograms, ’ signed by Michele Peters,Forever Free Counselor”
“August 6, 2007
“CODA, Co facilitated November 2,2006–June 28, 2007, signed by Lupe Quiroz,AA/NA Sponsor”
“June 28, 2007
“Participation in CODA, November 2, 2006through June 28, 2007”
“June 28, 2007
“Participation in AA/NA, attending 6meetings per month, November 2, 2006 through June28, 2007”
Petit’s rehabilitation is both intensive and extensive. Not only has she been commended by her teachers, she has become a leader, helping others with the same problems she has had to face and overcome.
Petit’s parole plans
Crossroads Program and two different Walden House locations, which have accepted Petit into their transition programs, will assist Petit in securing work in one of her vocational fields. Petit plans to continue her academic education at a community college and to continue to participate in both Alcoholics Anonymous and Narcotics Anonymous.
Upon release, Petit will have the support of family and friends.
Petit’s insight
The 2008 psychological report concludes that Petit has been active in Substance Abuse Program, Alcoholics Anonymous, Narcotics Anonymous, and the 12-Step Codependency Self Help Group, “and her work with them has assisted her in the development of a better understanding of how violence occurs. Ms. Petit appears to have given some thought and attention to the underlying causes of her offense, and... she recognizes that her choice to abuse substances was a contributor to her life offense. She appears to have developed the ability to be assertive and to deal with potential destabilizers without any regression to aggressive thoughts or actions or to the use of alchohol.”
During the parole hearing, Petit told the Commissioners, in part, that at previous parole hearings, “I didn’t want to say anything bad about Victor [Benjamin], because his dying was already too much for me. I have never said it here before, and the only reason I’m getting ready to say this now is to show the personality I was dealing with that night, along with my own personality. This came out in my bail hearing and trial, and that’s Victor was a gangbanger, Victor was a dope dealer, Victor had a police record and Victor was under the influence that night.... This also doesn’t come up, even though it’s in your packet and the police report, and that’s my face had bruises on it.... ”
Petit went on to say: “I also thought that violence deserved violence. I didn’t know how to walk away after I had been violated. I had to get all my coping skills in a violent prison, but I did get them... Twenty-three years ago, believe it or not, I was very angry at Victor. God had to help me forgive him, and once I did then the tears of healing came. Then I became truly sorry for everything that happened between us, because, before then I thought I was only protecting myself.... I know my part in this is wrong.... I have learned to say no to drugs. I’ve learned to control my temper. I have grown up and matured.... I’ve learned to depend on my higher power and, most of all, I have learned to love myself and believe I do deserve a second chance.”
Risk to the public
The 2008 psychological evaluation concludes that Petit presents a low to moderate risk of committing a violent crime in the future, with the historical factors raising the risk, which would otherwise be low, if based solely on her regular and consistent involvement in self-help and relapse-prevention groups, compliance with prison rules, and solid parole plans.
Board’s decision
In denying parole for three years, the Board set forth the following immutable factors: (1) criminal history; (2) failure to rehabilitate prior to committing the “life crime”; (3) institutional misconduct; and (4) the circumstances of the commitment offense, including the trivial nature of the motivation and callous disregard for the victim.
The Board also set forth the following factors to demonstrate Petit’s current mind set: (5) lack of insight into the commitment offense; (6) providing a version of events differing from that set forth in the appellate opinion and from the commissioners’ understanding, minimizing her conduct during the commitment offense, and continuing to claim self-defense; and (7) “besmirch[ing]” Victor Benjamin’s name.
DISCUSSION
Under Penal Code section 3041, subdivision (b), the Board has the power to decline to fix a firm date for an inmate’s release on parole and to continue the inmate’s indeterminate status, as it did with respect to petitioner in this case, if it finds that the inmate’s crime or social history continues to reflect that he presents a risk to public safety. (In re Dannenberg (2005) 34 Cal.4th 1061, 1083–1084, 1095; In re Lawrence (2008) 44 Cal.4th 1181, 1227–1228.) In determining an inmate’s suitability for parole, the Board “must consider all relevant statutory factors, including those that relate to postconviction conduct and rehabilitation. [Citation.]” (In re Lawrence, supra, 44 Cal.4th. at p. 1219.) The presumption is that parole must be granted unless public safety requires a lengthier period of incarceration. (In re Shaputis (2008) 44 Cal.4th 1241, 1257.)
The Board must set a release date “unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.” (Pen. Code, § 3041, subd. (b).)
In reviewing the Board’s parole suitability determination, we examine whether “some evidence” in the record demonstrates that the inmate poses a current threat to public safety (rather than whether some evidence supports the Board’s characterization of the facts contained in the record). (In re Lawrence, supra, 44 Cal.4th at p. 1191; In re Prather, supra, 50 Cal.4th at pp. 251–252.) The “some evidence” standard of review is “‘exceedingly deferential, ’” but “certainly is not toothless, ” for it “requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision—the determination of current dangerousness.” (In re Lawrence, supra, 44 Cal.4th at pp. 1210–1212.)
In determining whether an inmate is suitable for release on parole—whether the inmate “will pose an unreasonable risk of danger to society if released”—the Board must apply the factors found in California Code of Regulations, title 15, section 2281, subdivisions (c) and (d). Under these regulations, the circumstances tending to show unsuitability for release include the heinous nature of the commitment offense, including whether its motive was very trivial in relation to the offense; petitioner’s previous record of violence; and petitioner’s record of serious misconduct while incarcerated. The circumstances tending to show suitability for release include whether petitioner has a record of violent crimes; whether the petitioner has performed acts indicating remorse for the commitment offense, or shows an understanding of the nature and magnitude of the offense; whether petitioner has made realistic plans postrelease or has developed marketable skills that can be put to use upon release; and whether activities during incarceration indicate an enhanced ability to function within the law upon release. (Cal. Code. Regs., tit. 15, § 2281, subds. (c) & (d).) “Because the parole decision represents a prospective view—essentially a prediction concerning the future—and reflects an uncertain conclusion, rarely (if ever) will the existence of a single isolated fact in the record, evaluated in a vacuum, suffice to support or refute that decision.” (In re Lawrence, supra, 44 Cal.4th at p. 1214.
A. The immutable factors upon which the Board based its decision are insufficient.
The immutable factors cited by the Board include Petit’s criminal history; failure of previous rehabilitation efforts; institutional misconduct; and circumstances of the commitment offense, including the trivial nature of the motivation and the callous disregard for the victim. These factors that the Board identified for its decision relate to conduct before and soon after Petit’s imprisonment, a category of events that is immutable and cannot be changed no matter how complete her rehabilitation might be. These factors can be relevant to the Board’s consideration whether petitioner remains dangerous to public safety (as § 2281 of Cal. Code Regs. provides). But after many years, the “‘diminishing predictive value’” of these factors for petitioner’s future conduct renders them insufficient to show that petitioner continues to pose a serious public danger. (In re Lawrence, supra, 44 Cal.4th at p. 1218.)
For that reason, reliance on these factors, without identifying how they show a risk of current or future dangerousness, can violate the statutory and constitutional requirements of the parole determination process. (In re Roderick (2007) 154 Cal.App.4th 242, 277; In re Scott (2005) 133 Cal.App.4th 573, 594-595 [reliance on immutable factor without regard to later circumstances may violate due process].) After a long period of positive rehabilitation these factors cannot alone support a determination that petitioner remains dangerous to public safety decades later. (In re Lawrence, supra, 44 Cal.4th at pp. 1191, 1211.)
(1) The evidence does not support the Board’s reliance on Petit’s criminal history.
In denying parole, the Board stated that Petit had two juvenile matters in 1973 (attempted robbery and receiving stolen property) and was convicted of first degree burglary five years later in 1978. The Board failed to draw a nexus between Petit’s actions in 1973 and 1978—over 30 years ago—and her current likelihood of committing any offenses if released.
(2) The evidence does not support the Board’s reliance on rehabilitation efforts undertaken before the “life crime.”
The Board noted that Petit had been on juvenile probation, in juvenile hall, in county jail, and on adult probation. A review of the record shows that, on the 1978 adult conviction, Petit was placed on formal probation and served six days in jail. Again, the Board failed to draw a nexus between Petit’s actions in 1973 and 1978—over 30 years ago—and her current likelihood of committing any offenses if released.
(3) The evidence does not support the Board’s reliance on Petit’s early institutional misconduct.
Presiding Commissioner Chrones focused on Petit’s early lack of adjustment to prison, while minimizing her subsequent excellent rehabilitation successes: “You have had some serious misconduct while incarcerated. It’s been years since you’ve had real serious problems, but certainly at first you’ve had some problems dealing with confrontation with people in prison. You had thirty-seven 128s, many of those for non-participation in jobs or school, eight 115s.”
The Board based its decision in part on Petit’s long-ago history of misconduct in prison, while at the same time finding that her last incident of serious misconduct was in 2000. The Board fails to identify any reason that this stale history outweighs Petit’s unbroken pattern of good conduct for the decade that followed. Its decision also fails to identify how these unchanging factors tend to show any serious likelihood that Petit might revert to the violent, substance-abuse lifestyle in which she was engaged at the time of the commitment offense in 1986, or how these ancient factors show that Petit poses a current threat to public safety. (In re Lawrence, supra, 44 Cal.4th at p. 1191.) Without a nexus between these stale circumstances and the conclusions the Board draws from them, these factors do not constitute evidence sufficient to support the Board’s determination. (Id. at pp. 1213-1214, 1228 [seriousness or aggravated nature of offense may justify determination years later that the inmate remains a threat to public safety only if, in addition to that factor, “the inmate has failed to make efforts toward rehabilitation, has continued to engage in criminal conduct postincarceration, or has shown a lack of insight or remorse”].)
(4) The evidence does not support the Board’s determination that the motivation for the offense was trivial and that Petit showed callous disregard for the victim.
The Board characterized Petit’s stabbing of Benjamin as “trivial and callous” but also noted that Benjamin was considerably larger than Petit (she described him as “six-foot, five.” Petit has since realized she was wrong to stab Benjamin and has learned to avoid drugs and violence. The Board draws no nexus between Petit’s attitude at the time she committed the crime and her current steadfast and demonstrated refusal to engage with drugs or violence.
As in In re Cerny (2009) 178 Cal.App.4th 1303, 1309, Petit’s commitment offense arose out of substance abuse. While she was not under the influence when she went to Benjamin’s apartment, she did go there in connection with a purchase of cocaine. The First District noted at page 1310: “Given the close nexus between Cerny’s history of drug abuse and the circumstances of his commitment offense, the substantial amount of intervening time during which there is no evidence that Cerny has committed any violent act or abused drugs, and his long-standing treatment for drug abuse, Cerny’s commitment offense no longer provides evidence that he is currently dangerous or that his release would unreasonably endanger the public.” The First District continued: “[A]ll of Cerny’s crimes were committed while he was already drinking alcohol, smoking marijuana and using heroin. Cerny has stopped using drugs and alcohol and is committed to remaining abstinent. Because so much time has elapsed since those crimes were committed, Cerny’s drug abuse is inseparable from his criminal history, and his criminal history discloses no history of escalating violence; his criminal history is simply too far removed both in time and behavioral attributes to constitute reliable evidence that Cerny is currently dangerous.” (Id. at p. 1311.)
Not only has Petit been involved intensely in substance abuse programs, she has also been a facilitator and mentor to others. Her past abuse of alcohol and drugs nearly a quarter of a century in the past does not support the conclusion that she poses a current danger if released on parole.
(5) The evidence does not support the Board’s reliance on Petit’s “lack of insight.”
One of the factors the Board is required to consider in determining whether to grant parole is whether an inmate shows an understanding of “the nature and magnitude” of her commitment offense. (Cal. Code. Regs., tit. 15, § 2281, subd. (d).) The regulations identify this as a positive factor where it is found, weighing in favor of parole. However, the Supreme Court has said that the absence of this factor may also in some circumstances weigh against release on parole.
In In re Shaputis, supra, 44 Cal.4th 1241, the California Supreme Court held that an inmate’s minimization of his responsibility for years of violence against his family and lack of self-awareness of the violence he had inflicted, justified a determination, even after the passage of time, that the aggravated nature of the commitment offense continues to indicate that the petitioner remains dangerous. (Id. at p. 1260 & fn. 18; In re Smith (2009) 171 Cal.App.4th 1631, 1638.) “[W]here the record... contains evidence demonstrating that the inmate lacks insight into his or her commitment offense or previous acts of violence, ... the aggravated circumstances of the crime reliably may continue to predict current dangerousness even after many years of incarceration. [Citations].” (In re Lawrence, supra, 44 Cal.4th at p. 1228.) Thus a refusal to grant parole may be justified “when evidence in the record supports the conclusion that the circumstances of the crime continue to be predictive of current dangerousness despite an inmate’s discipline-free record during incarceration.” (Ibid.; In re Smith, supra, 171 Cal.App.4th at p. 1639.)
More is required than recitation of that conclusion. It is not a finding that the inmate lacks some level of insight that itself constitutes a measure of an inmate’s suitability for release. Nor does the Board’s finding that an inmate lacks insight fully address the Board’s responsibility, which is to evaluate whether the inmate continues to present a serious risk of danger to the public. (In re Lawrence, supra, 44 Cal.4th at pp. 1227–1228.) “[T]he incantation of ‘lack of insight, ’ a more subjective factor than those specified in the regulations as indicative of unsuitability, has no talismanic quality. Like all evidence relied upon to find an inmate unsuitable for release on parole, ‘lack of insight’ is probative of unsuitability only to the extent that it is both (1) demonstrably shown by the record and (2) rationally indicative of the inmate’s current dangerousness.” (In re Calderon (2010) 184 Cal.App.4th 670, 690.)
Commissioner Chrones critiqued Petit’s ability to express her feelings about Benjamin’s death, stating, “And I can’t get a feeling about your remorse. I know you’re emotional about it. I know you’re very regretful. I know that you wished he wasn’t dead. But I don’t know if it’s remorse or if it’s regret. And although you were tearful when you talked about the fact that he’s gone, I don’t know. We just weren’t real sure about how you felt. It wasn’t necessarily expressed, I guess.”
Although Commissioner Chrones distinguished between “regret” (unacceptable) versus “remorse” (acceptable), such may constitute a distinction without a difference, as some cases do not differentiate readily between the two. (See In re Vasquez (2009) 170 Cal.App.4th 370, 386 [“A psychologist reported that Vasquez did not believe it was ever right to take another man’s life and that Vasquez’s level of remorse was consistent with an inmate that has a tremendous regret for the ultimate outcome.” (Italics added.)]; see also In re Smith (2003) 109 Cal.App.4th 489, 496; In re Roderick, supra, 154 Cal.App.4th at p. 272; see also People v. Bell (2007) 40 Cal.4th 582, 607, and People v. Keenan (1988) 46 Cal.3d 478, 509-510 [regret and remorse treated interchangeably].) Commissioner Chrones has differentiated between “remorse” and “regret, ” but case law seems to use those words interchangeably with an identical meaning. Clearly, Petit has demonstrated that she understands “the nature and magnitude of the offense, ” as plainly set forth in the applicable regulation. (Cal. Code Regs., tit. 15, § 2281, subd. (d)(3).)
(6) The evidence does not support the Board’s conclusion that Petit’s differing version of events, her “minimizing” her conduct, and her claiming self-defense show that she presents a danger to the public upon release.
Commissioner Chrones stated that Petit’s explanation of self-defense was not credible, because she did not call out to Williams for help. Commissioner Chrones also stated that Petit minimized her conduct by explaining that she defended herself after Benjamin struck her in the eye: “[Y]ou tend to minimize your conduct and you say you just stabbed him, because he hit you in the eye. I know that Victor [Benjamin] was a big man. I understand that. But hitting somebody in the eye doesn’t warrant stabbing him in the heart.” The commissioner further criticized Petit for continuing to maintain that she acted in self-defense “in spite of jury trial, Appellate Decision.”
To the extent that the Board relied on discrepancies between Petit’s version of events and other evidence, it failed to articulate any rational nexus between these discrepancies and current dangerousness, and these discrepancies do not constitute “some evidence” of such dangerousness under the circumstances of this case. (In re Moses (2010) 182 Cal.App.4th at p. 1307.)
Here, the record contains extensive evidence concerning the history and extent of Petit’s rehabilitation, insight, remorse, and acceptance of responsibility as shown by reams of laudatory “chronos” and Petit’s own reaction to a physical attack in 2005. She did not react to her attacker, but contacted authorities.
(7) The evidence does not support the Board’s reliance on Petit’s characterization of the victim.
The Board stated as one factor for denying parole the “besmirch[ing]” of Benjamin’s name by referring to his being a dope dealer, a gangbanger, and having a police record. The Board seems to have taken Petit’s remarks out of context to view them as if she had manufactured a pretext to try to present a false picture of why she needed to protect herself.
To the contrary, a review of Petit’s testimony—in context—shows that she made these statements to explain her mindset at the time Benjamin attacked her: she was so afraid of him that she believed that her act of violence was necessary to protect herself. That this is the proper interpretation of her statements is evidenced by the statements she made immediately thereafter; she went on to state that she had learned as a child that “violence deserved violence” and she “had to learn all [her] coping skills in prison.” Petitioner’s statements, taken in context, were to explain her fear of Benjamin and her actions of self-defense, rather than to cast aspersions on the victim or provide a pretext for the offense.
DISPOSITION
The petition is granted, and the decision of the Board of Parole Hearings is hereby vacated. The matter is remanded to the Board for a new hearing consistent with due process and with the decision of the Supreme Court in In re Prather, supra, 50 Cal.4th 238.
We concur: MALLANO, P. J., JOHNSON, J.