Opinion
H036813
01-25-2012
In re JAMES LENWOOD STEVENSON, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. 203910)
Petitioner James L. Stevenson is currently serving an indeterminate life term for a 1998 conviction of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)). On February 23, 2010, following a fourth subsequent parole consideration hearing, a panel of the California Board of Parole Hearings (Board) found petitioner unsuitable for parole. On March 25, 2011, the superior court granted petitioner's writ of habeas corpus, vacating the decision and directing the Board to hold a new hearing within 100 days. Respondent Warden Rick Hill appeals. (§ 1507.)
All further statutory references are to the Penal Code.
We have issued a writ of supersedeas, staying enforcement of the March 25, 2010 order pending final determination of this appeal.
Respondent contends that the order should be reversed because "some evidence" supports the Board's decision. Respondent also asserts that the court erred in refusing to consider the confidential information upon which the Board relied since the petition did not challenge its reliability. We conclude that the Board's parole suitability decision must be upheld under the deferential "some evidence" standard of review. Consequently, we will reverse the superior court's order granting habeas corpus relief.
I
Factual and Procedural History
A. Underlying Offenses
In 1998, following a jury trial, petitioner was convicted of second degree robbery (§§ 211, 212.5, subd. (c)), kidnapping to commit robbery (§ 209, subd. (b)), and conspiracy to commit kidnapping (§ 182, subd. (a)(1)). The jury found a firearm enhancement allegation to be true. (§ 12022, subd. (a)(1).) B. February 23, 2010 Suitability Hearing and Decision
1. Hearing
The presiding commissioner recited for the record that the commitment offense took place in November 1997. After the victim got out of his vehicle, the victim was approached by two individuals wearing ski masks. Petitioner's co-perpetrator shoved a semi-automatic into the victim's ribcage and asked if he had any money. After the victim replied in the negative, petitioner reached into the victim's pockets and removed a wallet and a pager. Petitioner asked the victim how many people were in the house and whether there was any money in the house. The victim replied that there was no money in the house. Petitioner told the victim to take him to his residence. The victim was shoved toward the house and they walked down the sidewalk. When a police car was observed, petitioner and his co-perpetrator tried to flee.
Petitioner indicated at the hearing that he had asked who was in the house because someone was looking out a window and claimed that they had no intention of going into anyone's house. He indicated that he did not intend to commit a kidnapping.
Petitioner explained that he committed the offense for money and he was living a "real bad lifestyle at the time" and selling drugs. He said he had "no understanding of what [he] was doing at the time." When asked why he chose that bad lifestyle, petitioner stated it started when he divorced his first wife but mainly it came down to money.
Petitioner revealed that that he had been the victim of a robbery a few weeks before the commitment offense and he "just got stupid." Petitioner was asked to explain how, after being victimized himself, he could rob someone else. Petitioner stated that being robbed had made him mad and, at the time, he felt it was right to take something from someone else. He said, "I've taked about this to myself and to someone a million times. And every time I try to explain it to someone, I don't know what to really say."
Petitioner had an arrest history that predated the commitment offense. In April 1995, he was arrested for possession of a controlled substance and sent to a diversion program. Petitioner indicated that he had possessed weed and cocaine for personal use. In December 1996, he was arrested and charged with carrying a concealed weapon, carrying a loaded firearm in a public place, and receiving stolen property (the gun). Petitioner explained that he had been selling drugs at the time, he had believed he needed to protect himself, and he had purchased the gun off the streets. In May 1997, he was arrested for robbery but the charge was dismissed. According to petitioner, the investigation showed he had nothing to do with that robbery.
Before this serious of arrests, petitioner had been gainfully employed. After high school, he had been in the Navy for four years and he was honorably discharged in 1992. He blamed his first wife for talking him out of reenlisting in the Navy after the birth of their son.
After his Navy discharge, petitioner worked at a paint shop for a couple of months and then began working at the post office. He worked for the post office for over three years. Petitioner became dissatisfied with the post office job and quit to sell drugs because "the drug money was better than the post office money."
When asked why he turned to a criminal lifestyle, petitioner said that he was having a rough time and going through a divorce, he moved into a neighborhood with crime around him, and he was greedy and he saw a way to make easy money. Petitioner said that he wished he could "fully explain it." The presiding commissioner observed that a lot of people go through divorce and a lot of people are unhappy with their incomes, but they do not resort to crime. Petitioner said that he "wish[ed] [he] could just break it down piece by piece for you" but "I don't know how." He blamed his greed.
The presiding commissioner subsequently commented that thousands of people work for the post office and are satisfied with their jobs and make ends meet. Petitioner said that selling drugs was easier and took less time and less work. When asked what he did with the rest of his time, petitioner said "leisure," "nothing," and he spent time with his son.
Petitioner indicated that alcohol and marijuana played a part in his criminal conduct but his reason for committing the offense "basically boil[ed] down to . . . greed" because he "thought money was something." He stated that money no longer meant anything to him and all he wanted was his family.
Petitioner acknowledged that he was an alcoholic and he had used weed and cocaine. When he was 15 or 16 years old and in high school, he began smoking weed and drinking alcohol. He used cocaine for the first time in 1988 when he was 18 years old; he had used cocaine about nine or 10 times. When he graduated from high school in 1988, he was dealing cocaine and he had been for about a year.
When he was in the Navy, petitioner drank alcohol every day while in port. Petitioner indicated he did not use drugs or smoke weed while in the Navy. But his most recent psychological evaluation, dated September 2009, stated that petitioner's marijuana use increased while petitioner was in the Navy and he was smoking a few joints three to four times per week. Petitioner stated that information was incorrect and the evaluator must have misunderstood or misheard him. The presiding commissioner indicated that discrepancies existed in other reports beyond the current psychological evaluation. Petitioner indicated that he was trying his best to remember.
After he left the Navy, he continued drinking and got drunk about three or four times a week. He used to drink with his former wife. He also smoked weed four or five times a week and continued smoking through 2000 despite incarceration. He indicated that alcohol and drug use affected his whole life and was a reason he was in prison.
According to petitioner, the last time he used drugs was in 2000. His current wife was arrested for drug possession in 2000. This occurred when authorities had information that drugs were being brought into the prison; his wife was taken into custody when she was in the visiting room and searched, and her hotel room was searched and drugs were found. He denied that the drugs were meant to go to him.
Petitioner stated that he believed his wife, who told him that the drugs were not hers and they belonged to other women with whom she was sharing the hotel room. He asserted that his wife had "never been in trouble in her life." But he then admitted that she had been convicted and sentenced to prison. Petitioner's attorney informed the court that she had successfully completed parole and returned to working for BART.
Petitioner had received three CDC 115s (Rule Violations). The last one had occurred in November 2002. He had received five 128As (Custodial Counseling Chrono). The last one had occurred in October 2002 and was for smoking.
Petitioner had completed anger management and stress management programs. Petitioner reported that he had also taken a victim awareness class and was taking a parenting class.
Petitioner's custody level was medium A, which was the lowest he could receive. His classification score was 19, which was the lowest he could receive. He was not gang-affiliated. He had been participating in work assignments since February 2003. At the time of the hearing, petitioner was assigned to the yard crew. The most recent work report in his file was from 2007 and it gave him an above average review.
Petitioner had completed some vocational training. He had a 2002 certificate of completion for Brake and Barriers and a 2003 certificate of completion for Small Engine Repair. He also had training in upholstery. Petitioner was attending Community Coastline College and had obtained nine units.
Prior to 2009, petitioner had been consistently involved in AA and NA but his latest documented class was July 2008. Petitioner said the classes had been cancelled until approximately February 2009. He indicated he and others had formed their own class. He stated that he had been alcohol and drug free for nine years. Petitioner thought he had been involved in AA and NA for five years.
The psychological evaluation, completed in September 2009, indicated that petitioner presented a relatively low to moderate risk for violence if released into the community. The risks were posed by his alcohol and drug abuse history, his history of drug dealing, his lack of a relapse prevention plan, and his incomplete parole plan. The report commented on petitioner's lack of knowledge of AA principles and the steps. At the hearing, petitioner explained that he had been thrown off by the interviewer who began the evaluation by asking about his sexual history. Petitioner discussed some of the steps.
When asked about his triggers for substance abuse, petitioner indicated that a trigger was his lack of confidence and feeling like he was not getting what he wanted out of life. He needed something to help him not focus on that. He also disclosed that everything was a trigger but nevertheless asserted that he did not need alcohol anymore. He later indicated that he was uncomfortable when confronted with what he had done in the past when he was trying so hard to forget his past and being uncomfortable was one of his triggers.
As to the reported lack of an adequate relapse prevention plan, petitioner indicated that the doctor had recommended a halfway house called "Another Chance," whose main focus was alcohol and drug addiction, and he wanted to be paroled there. There was a document, dated January 19, 2010, stating that he had been accepted as a resident. He would have to supply and prepare his own meals. The Petitioner acknowledged that there was a monthly facility charge of $500 and stated that his brother, who was in the Navy, was going to pay it. Petitioner had not obtained a confirmation letter from his brother but offered to provide his brother's number and address. The presiding commissioner explained that it was not the Board's job to investigate. Petitioner also indicated that his wife could afford to pay it.
As to his work plans, petitioner stated that a good friend had offered him a job working for a painting company and he could train to become a counselor at Another Chance. He offered a letter regarding the painting job but it was undated and contained no phone number. Petitioner stated that he obtained it "like, eight months ago" and orally gave a phone number. Petitioner stated he was a stationary engineer in the Navy and could fix practically anything. Petitioner had not tried to contact any companies that dealt with upholstery or small engines even though he had obtained vocational training in those areas. He had no current, concrete job offer.
When asked what his plan was after the halfway house, he indicated that he had been talking with the director of Another Chance, who would help him get into some counseling. He also stated that he is going to continue AA and NA for life but admitted that he did not have a sponsor. He said that the director of Another Chance was going to recommend a sponsor.
When asked what steps he would take to avoid criminality when he lives in the community and is having a difficult time finding a job, petitioner did not directly answer the question. He indicated that he did not want to go back to prison, money was no longer important to him, and he had never physically hurt anyone. He acknowledged that he may have emotionally injured people and stated that he hoped and prayed that the victim had forgotten about him and moved on with his life.
Deputy Commissioner Lopez observed that the stresses in the community were different than those in the controlled prison environment and there were still holes in the relapse prevention plan, including the lack of a sponsor and lack of knowledge about resources in the community. When asked again about his triggers, petitioner answered that he did not "understand what triggers are" and all he knew was that he "had a problem." He indicated that part of the problem was his divorce, his inexperience with being on his own without being under the authority of his father or the Navy, and his greed and stupidity. When asked what he was going to do when he was back in the community, he said he was "going to find another way" and he was "going to pray on it." He said he did not know what he was going to do but he was not going to do anything wrong.
2. Parole Suitability Decision
The panel concluded that petitioner was not suitable for parole because he currently posed an unreasonable risk of danger if released from prison. The gravity of the commitment offense was not a consideration in denying parole, however, since it barely met the requirements of a life crime, no one was hurt, and petitioner was not carrying the weapon. The panel was troubled, however, by petitioner's lack of insight into why he chose to give up a good and stable job and adopt a criminal, antisocial lifestyle. In addition, petitioner had not adequately explained why he would rob someone after having been robbed himself only weeks earlier. He had not demonstrated that he fully understood the impact of the commitment offense on the victim.
The panel concluded that petitioner also lacked insight into the need for substance abuse treatment. The psychological evaluation stated that he underestimated his substance abuse problems. The panel did not find him to be credible regarding his wife and the drugs found in her motel room. Twenty bundles of heroin weighing 10.96 grams and marijuana weighing 2.6 grams had been found in her motel room and those were the same drugs that petitioner had possessed in 2000.
A further factor in their parole decision was confidential information implicating petitioner in drug trafficking. During the hearing, Deputy Commissioner Lopez had told petitioner Stevenson that "there [was] confidential information in [his] file" but indicated "at this point, we're not going to be utilizing that confidential information." At the time of decision, however, Stevenson was told that the panel had "decided to use the confidential information" and he was informed that there was "confidential information in the file, dated April of '09," that implicated him in drug trafficking in Folsom prison and indicated that he was "getting the drugs through visiting." He was informed that, although that information was not the sole reason for denying parole, it was "a factor in the denial." Stevenson was told that the information was reliable and it was in his confidential folder but no additional information could be provided. Stevenson was advised to address that confidential information because, even if he subsequently received a parole date, the Governor's Office would review it.
California Code of Regulations, title 15, section 2235 provides: "No decision shall be based upon information that is not available to the prisoner unless the information has been designated confidential under the rules of the department and is necessary to the decision. [¶] (a) Reliability. The reliability of confidential information to be used shall be established to the satisfaction of the hearing panel. A finding of reliability shall be documented by the hearing panel. A hearing may be continued to establish the reliability of the information or to request the department to designate the information as nonconfidential. [¶] (b) Documentation. If confidential information affected a decision the prisoner shall be notified of reports on which the panel relied."
Another factor in the suitability decision was petitioner's poor understanding of, and lack of, a relapse prevention plan. Although he had indicated a plan to parole to a halfway house and participate in AA and NA, he had not shown understanding of his need for prolonged substance abuse programming and a relapse prevention plan. He minimized his substance abuse problems and he insisted he no longer wanted to use drugs or drink but he had no insight into the triggers that could cause him to begin abusing again. He had not explained what he would do if he wanted to use drugs or drink. C. Writ Proceedings
On July 27, 2010, petitioner filed a petition for writ of habeas corpus in the superior court. The court issued an order to show cause. Respondent filed a return. Petitioner filed a denial (traverse) and a motion to compel respondent to file under seal in the superior court "all confidential information" considered at the February 23, 2010 parole suitability hearing and "any documentation of the reliability of the information." Respondent filed opposition to that motion.
The court granted habeas relief. The court believed that the Board had misused the "stable social history" factor as a factor of unsuitability. It also concluded that the Board had improperly utilized a "lack of insight" factor, stating that "[s]ince the motive for Petitioner's crimes was money, Petitioner's explanation that his personal depression led to its reckless pursuit through criminal means is adequately insightful." It also concluded that petitioner had "fairly articulated that his personal growth, and the consequences of 12 years of incarceration, have impressed upon him the resolve to live a fully reformed life." The superior court acknowledged that there was room to disagree with its analysis of petitioner's insight but indicated that the Board's decision did not pass muster under the objective framework established by this court in In re Rodriguez (2011) 193 Cal.App.4th 85. The superior court also faulted respondent for not submitting the confidential material, under seal, with the return. Since the confidential information had not been submitted under seal, the court refused to consider the information even insofar as it had been disclosed to petitioner.
II
Confidential Information
Stevenson's petition for a writ of mandate alleged that the Board's decision denying his parole suitability was not supported by some evidence of his current dangerousness. The petition did not state that the 2009 confidential information implicating him in drug trafficking was false or unreliable. The petition merely alleged that the presiding commissioner stated the confidential information was reliable "without indicating how this could be." For the first time in his denial to the return (the traverse), petitioner Stevenson alleged that he was denied a meaningful opportunity to object to or contest the confidential information and the Board improperly relied upon unreliable information.
"When an order to show cause does issue, it is limited to the claims raised in the petition and the factual bases for those claims alleged in the petition. It directs the respondent to address only those issues." (In re Clark (1993) 5 Cal.4th 750, 781, fn. 16.) "The factual allegations of a return must . . . respond to the allegations of the petition that form the basis of the petitioner's claim that the confinement is unlawful. (Romero, supra, 8 Cal.4th at p. 738 . . . ; People v. Pacini (1981) 120 Cal.App.3d 877, 884 . . . .) In addition to stating facts, the return should also, 'where appropriate, . . . provide such documentary evidence, affidavits, or other materials as will enable the court to determine which issues are truly disputed.' (Lewallen, supra, 23 Cal.3d at p. 278, fn. 2 . . . .)" (People v. Duvall (1995) 9 Cal.4th 464, 476, fn. omitted.) The burden with respect to the return is "one of pleading, not proof." (Id. at p. 476, fn. 3.)
Since the petition did not assert the unreliability of the confidential information as a ground for relief, the court's issuance of the order to show cause did not require respondent to respond to any such claim in the return. Respondent had no reason to submit the confidential information under seal to the superior court. "While the traverse may allege additional facts in support of the claim on which an order to show cause has issued, attempts to introduce additional claims or wholly different factual bases for those claims in a traverse do not expand the scope of the proceeding which is limited to the claims which the court initially determined stated a prima facie case for relief. [Citations.]" (In re Clark, supra, 5 Cal.4th at p. 781, fn. 16.)
The interplay between the return and traverse frame the issues in a habeas proceeding. (In re Serrano (1995) 10 Cal.4th 447, 455.) "Under this process, the issues to be addressed may not extend beyond the claims alleged in the habeas corpus petition." (Board of Prison Terms v. Superior Court (2005) 130 Cal.App.4th 1212, 1235.) The reliability of the confidential information before the panel was beyond the scope of the habeas proceedings as framed by the pleadings.
Consequently, the trial court erred in concluding that respondent was required to submit the confidential information or documentation of its reliability, under seal, with the return. It improperly refused to consider the confidential information discussed at the hearing in evaluating whether there was some evidence in the record to support the Board's decision. In any case, even disregarding the confidential information, which the panel indicated was not determinative, there was "some evidence" supporting the Board's parole suitability decision.
III
Review of Board's Decision
A. Legal Principles Governing Parole Suitability Decision
In making its parole suitability determination, the Board must consider "[a]ll relevant, reliable information available to the panel," including an inmate'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, § 2281, subd. (b).) The specific relevant circumstances set forth in the administrative regulations are merely "general guidelines" and "the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel." (Cal. Code Regs., tit. 15, § 2281, subd. (c) and (d).) "[T]he Board must consider specified factors and exercise broad discretion in balancing the interests of the inmate and of the public." (In re Rosenkrantz (2002) 29 Cal.4th 616, 656-657.) "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, § 2281.) "Resolution of any conflicts in the evidence and the weight to be given the evidence are within the authority of the Board. [Citation.]" (In re Rosenkrantz, supra, 29 Cal.4th at p. 656; see In re Lawrence (2008) 44 Cal.4th 1181, 1204.) "If the Board determines, based upon an evaluation of each of the statutory factors as required by statute, that an inmate remains a danger, it can, and must, decline to set a parole date." (In re Lawrence, supra, 44 Cal.4th at p. 1227.) B. Standard of Review
"[T]he 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. If the decision's consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, 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.)
"[T]he 'some evidence' standard is extremely deferential . . . ." (Id. at p. 652.) "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 [Board]. . . . [T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the [Board], 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 [Board'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 [Board's] decision." (Id. at p. 677.)
"The reviewing court does not ask whether the inmate is currently dangerous. That question is reserved for the executive branch. Rather, the court considers whether there is a rational nexus between the evidence and the ultimate determination of current dangerousness. The court is not empowered to reweigh the evidence." (In re Shaputis (2011) _ Cal.4th _, _ [134 Cal.Rptr.3d 86, 109] (Shaputis II).) "Only when the evidence reflecting the inmate's present risk to public safety leads to but one conclusion may a court overturn a contrary decision by the Board or the Governor. In that circumstance the denial of parole is arbitrary and capricious, and amounts to a denial of due process. ([Lawrence, supra, 44 Cal.4th] at pp. 1204-1205 . . . .)" (Id. at p. 101].)
"Because the trial court's findings were based solely upon documentary evidence, we independently review the record. (In re Serrano, supra, 10 Cal.4th at p. 457 . . . .)" (In re Rosenkrantz (2002) 29 Cal.4th at p. 677.)
C. Some Evidence
While this court has recognized that "whether a person has or lacks insight is often in the eye of the beholder" (In re Ryner (2011) 196 Cal.App.4th 533, 548), "the current parole regulations firmly support consideration of an inmate's insight into his or her criminal behavior as a relevant factor." (Shaputis II, supra, 134 Cal.Rptr.3d at p. 108.) As for the view that "insight is a particularly subjective factor," "a finding on insight is no more subjective or conclusory than a finding on the inmate's 'past and present mental state.' ([Cal. Code Regs. title 15,] § 2402, subd. (b).)" (Id. at 107.) "Furthermore, it has long been recognized that a parole suitability decision is an 'attempt to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts.' (Rosenkrantz, supra, 29 Cal.4th at p. 655 . . . ; see In re Sturm (1974) 11 Cal.3d 258, 266 . . . .)" (Ibid.) The Supreme Court has "expressly recognized that the presence or absence of insight is a significant factor in determining whether there is a 'rational nexus' between the inmate's dangerous past behavior and the threat the inmate currently poses to public safety. (Lawrence, at p. 1227 . . . ; see also Shaputis I, at p. 1261, fn. 20 . . . .)" (Id. at p. 107.) "[I]t is noteworthy that lack of insight pertains to the inmate's current state of mind, unlike the circumstances of the commitment offense . . . . [Citation.] Thus, insight bears more immediately on the ultimate question of the present risk to public safety posed by the inmate's release." (Id. at p. 108.) "[T]he inmate's insight into not just the commitment offense, but also his or her other antisocial behavior, is a proper consideration." (Id. at p. 107.) Furthermore, "the unexceptional nature of the commitment offense will not inevitably reflect a lack of current dangerousness without due consideration of the inmate's post-conviction actions and progress toward rehabilitation." (In re Lawrence, supra, 44 Cal.4th 1181, 1218.)
In this case, the record does not reflect that the Board misapplied the suitability factors. The board did not utilize evidence of petitioner's "stable social history," a circumstance tending to show suitability for release on parole (Cal. Code Regs., tit. 15, § 2281, subd. (d)(2)), as a factor warranting a finding of unsuitablility. Rather, it considered petitioner's minimal insight into what caused him to abandon a stable job and adopt a criminal lifestyle when others faced with similar pressures (marital dissolution, job dissatisfaction, desire for greater wealth) do not take that route.
Applying the deferential standard of review as required, we now conclude that the record provides support for the Board's conclusion that petitioner was not yet suitable for parole. It could reasonably find that petitioner had only a superficial understanding of the dynamics causing him to turn to drug dealing, crime, and the commitment offense, especially given his previous gainful employment. Additionally, it could reasonably conclude that petitioner continued to minimize the role substance abuse had played in his life choices and failed to fully address those issues. Therefore, petitioner remained vulnerable to stressful circumstances that had led him to embrace a criminal lifestyle.
Even after incarceration for the commitment crime, petitioner had possessed drugs in prison in 2000. Although petitioner seemed to have some understanding that his past alcohol and drug use had contributed to his present situation and he claimed at the parole hearing not to have used substances for nine years in the controlled prison setting, petitioner did not fully understand the term "trigger" and he had not identified specific strategies for coping with the stressors and demands of life that he would face upon release. Although his plan was to parole to a halfway house focused on substance abuse and to participate in NA and AA, he did not currently have a sponsor or have a sponsor lined up for the future and he had no recent documented classes. He had not developed a relapse prevention plan.
In addition, petitioner's parole plan was incomplete. He did not have written confirmation from his brother or anyone else indicating they would pay for petitioner's halfway house expenses, he did not have a current, firm job offer, and he had not thought beyond the halfway house. The fact that a prisoner has made realistic plans for release is a circumstance tending to show suitability for release on parole. (Cal. Code Regs., tit. 15, § 2281, subd. (d)(8).)
In addition, although petitioner had taken a victim awareness class, he did not describe any insights gained or express genuine understanding for the magnitude of the offense or the potential impact on the victim's life. He merely hoped that the victim had forgotten about him.
Petitioner has evidently made some important strides in the right direction but the record reveals "some evidence" justifying the Board's conclusion that, at the time of the hearing, petitioner continued to pose a current threat to public safety if released on parole. The 2009 confidential information that that petitioner was involved in drug trafficking in prison buttresses that determination. The Board's decision must be upheld. (See Shaputis II, supra, 134 Cal.Rptr. 3d at p. 101; Rosenkrantz, supra, 29 Cal.4th at pp. 656-658, 677.)
DISPOSITION
The superior court's order granting Stevenson's petition for writ of habeas corpus is reversed.
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ELIA, Acting P. J.
WE CONCUR: ____________
BAMATTRE-MANOUKIAN, J.
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WALSH, J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice Pursuant to article VI, section 6 of the California Constitution.
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