Opinion
D059403 Super. Ct. No. SCD106844
01-05-2012
In re JAMES WING 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Original proceeding on a petition for writ of habeas corpus. Relief granted.
In 1995, a jury convicted James Wing of second degree murder (Pen. Code,§ 187) and also found he personally used a firearm to commit the offense (§ 12022.5, subd. (a)). The court sentenced him to prison for 15 years to life, plus a four-year enhancement under section 12022.5, subdivision (a). Wing, at age 41, began serving his indeterminate term in 1995 and participated in an initial parole consideration hearing on January 13, 2010. The Board of Parole Hearings (the Board) found Wing unsuitable for a release date and denied him parole, setting a new suitability hearing in three years.
All statutory references are to the Penal Code unless otherwise specified.
After the trial court denied a request for habeas relief, Wing filed the present petition for writ of habeas corpus. Wing asserts the Board's conclusion is not supported by some evidence that, if paroled, he currently would pose an unreasonable danger to the
public. He also contends the application of Marsy's Law to increase his time between parole suitability hearings violates the federal and California Constitutions' ex post facto provisions. We need not discuss the latter contention because we conclude the record does not contain "some evidence" to support the Board's ultimate conclusion that Wing was unsuitable for parole because he currently poses an unreasonable risk to public safety. Accordingly, we grant Wing habeas relief.
Marsy's Law or Proposition 9, which the electorate approved November 4, 2008 and became effective November 5, 2008, changed certain aspects of California's parole system, including amended section 3041.5, subdivision (b) regarding the frequency and availability of parole hearings for petitioners not found suitable for parole.
FACTUAL AND PROCEDURAL BACKGROUND
The Commitment Offense
Wing's conviction for second degree murder was upheld on appeal. (See People v. Wing (May 22, 1997, D024775) [nonpub. opn.].) We repeat the facts contained in this court's opinion.
"The victim, 22-year-old Lamont Moore (Moore), occasionally stayed at an apartment in a complex on Camino Ruiz in Mira Mesa. Wing and his wife also lived in an apartment in the complex in which Moore occasionally resided.
"About 7 o'clock on the evening of September 26, 1994, Moore, his friend Thomas Lewis, and two of Lewis's cousins were all walking across Camino Ruiz near Mira Mesa High School, coming from Taco Bell. As Lewis stood on the center median and the others were still in the street, Wing, in his automobile, turned onto Camino Ruiz from Mira Mesa Boulevard and drove past Moore and Lewis's cousins. Wing, who thought the group of young men were acting 'like they own the road,' then 'zipped by' them while traveling about 45 miles per hour, coming within a couple of feet of hitting Moore and his friends.
"A verbal altercation ensued between Moore and his friends and Wing. Moore and his friends yelled obscenities at Wing, who extend the middle finger of his hand toward them. Wing drove on, and stopped in a left turn lane at the corner of Camino Ruiz and New Salem.
"Moore had been pushing a bicycle with him. He got on the bicycle and pedaled off in pursuit of Wing's car, while Lewis's two cousins ran after him. When he caught up with Wing, Moore threw a drink he had bought at Taco Bell onto Wing's car. Wing then gunned his engine, made a U-turn, and ran up over the curb onto the sidewalk in the area where Moore was standing. Moore and his friends hit at Wing's car, breaking the passenger window. Wing then drove off through the parking lot.
"As Wing drove home, he saw Moore going into the apartment complex with his bicycle. Wing parked his car and went to his apartment, where he obtained a five-shot .38 caliber Smith and Wesson revolver, which was loaded with hollow point rounds. Wing then put the gun in his waistband, and went out into the complex, searching for Moore.
The .38 was a "double action" revolver, in which a long pull on the trigger would first cause the hammer to move back, and then cause it to be released forward to fire. A pressure of about 12 pounds was necessary to fire the revolver in this manner. If the hammer were first pulled back by hand, however, the revolver could be fired in "single action" mode, with a much shorter and less forceful trigger pull of about three pounds required to cause it to discharge once the hammer had been pulled back. The gun had no mechanical defect.
"Wing found Moore 'hunkered down' in a patio, eating a taco.' Holding the gun in his right hand, Wing grabbed Moore's collar in his left hand and pulled him from the patio. About this time, a neighbor heard Wing say harshly, 'Do you want me to kill you?' Moore answered in a pleading tone, 'No, no.'
"Wing dragged Moore onto the walkway, where Moore dropped to his knees. Wing told police he 'had pulled the hammer back on the gun and I let it back again and I must have pulled it back again.' As Wing 'kept yelling at him' and attempting to pull Moore up, and as Moore was still resisting being removed, the .38 discharged. Moore died from a gunshot wound to the right side of his head, fired at close range.
See footnote 3, ante.
"Wing returned to his apartment. On his way back to his apartment, a neighbor asked Wing what had happened. Wing said, 'I think somebody was shot.' In his apartment Wing called 911. Neighbors also called 911. Wing later made an in-custody statement to the police.
A tape recording of the 911 call was played for the jury.
A videotape recording of a police interview with Wing was played for the jury.
"Wing consented to a police search of his apartment. The .38 revolver was found, and the police also found a box of hollow point ammunition, a holster and two pellet guns. A postmortem examination revealed Moore had methamphetamine and amphetamine in his blood.
Defense
"Wing had a reputation as a nonaggressive and nonviolent person. Wing's pulling the trigger on the gun was consistent with his attempting to raise Moore off of the ground. A criminalist testified that, based on the facts surrounding the shooting, the evidence was consistent with an unintentional discharge of the gun.
"Toxicologist Richard Whalley testified the amount of methamphetamine in Moore's blood would make a person other than a hardened user euphoric, with grandiose thoughts and feelings of well-being and omnipotence."
Wing's Preconviction History
Wing has two sisters and two brothers. His parents, ages 79 and 81, are still married and live in San Diego. Wing enjoyed a stable home and upbringing. He graduated from high school and attended community college, ultimately earning an associate degree.
Wing married his first wife when he was 19 years old. The marriage lasted 15 years and produced two children. Both children are adults. He remarried in 1993 and remains married to his second wife.
Wing served in the Navy from 1971 to 1974 and was honorably discharged. Prior to his incarceration, he was employed by Data Trek for about four years. He also worked for the Veteran's Administration for 10 years doing computer work.
Wing's Criminal History and Postconviction Conduct
When Wing entered prison, he had no previous criminal history. During his approximately 15 years in prison, Wing's disciplinary record was flawless. He received no documentation of misconduct. Wing has no history of gang involvement or drug abuse.
Wing also has participated in numerous self-help and therapy programs, including Breaking Barriers (multiple times), Alcoholic Anonymous (AA) (multiple times), the Substance Abuse and Anger Management Program, Literacy Tutor, the Cognitive Program, Anger Management (multiple times), Basic Alternative to Violence, Alternative to Violence, and the veteran's group (multiple times). He received numerous laudatory chronos for his participation, including some noting Wing has been "an inspiration to others" and encouraging him to return to the program.
Wing also received a certificate of achievement for textiles and served as a clerk in the computer-aided instruction lab, where a laudatory chrono stated he "did an exceptional job" and referred to him as "punctual, dependable, courteous, patient, professional . . . [and] positive."
The 2009 Psychological Review
In September 2009, a forensic psychologist prepared a psychological review of Wing based on a clinical interview of Wing, review of Wing's central file and unit health record, and various risk assessment data. The psychologist noted in the report Wing scored lower than 99 percent of those sampled under the Psychotherapy Check List-Revised (PCL-R). Wing's overall score as measured by the Historical-Clinical-Risk
Management-20 (HCR-20) placed him in the low risk category for violent recidivism.The psychologist found Wing displayed few predictive factors for violence.
The PCL-R and HCR-20 are assessment guides used to estimate an inmate's risk for future violence in the community. The lower the score the less likely the person is to engage in future violence
Wing's Level of Service/Case Management Inventory (LS/CMI) score indicates he is in the low category of general recidivism. During his evaluation, Wing did not exhibit any symptoms of major mental illness or demonstrate evidence of psychopathy.
The LS/CMI is an actuarial instrument designed to evaluate levels of risk to recidivate.
During the clinic interview, Wing discussed remorse for his life offense, stating he has "more remorse than [he] can show" and thinks of the victim all the time.
Weighing all the data from available records, the clinic interview of Wing, and the risk assessment data, the psychologist opined, "Wing presents a relatively low risk for violence in the free community."
The January 13, 2010 Proceeding
Suitability Hearing
Because the January 13, 2010 suitability hearing was Wing's first, the Board read a lot of Wing's central file, including laudatory chronos, the 2009 psychological report, the facts from the appellate decision affirming the judgment convicting Wing of the life offense, and portions of the probation report into the record. The Board stated both the District Attorney's Office and the San Diego Police Department sent letters requesting the Board to deny Wing parole. The Board also read the transcript of video tape testimony from the victim's mother, urging the Board to deny Wing parole.
The Board also considered several letters of support, some included offers of financial assistance, from Wing's parents, siblings, children, wife, ex-wife, ex-father-in-law, former employer, former co-worker, and friends. If granted parole, Wing planned to live with his wife in her apartment in San Diego. Wing's wife has the financial means to support Wing while he looks for work. Wing planned to find work in the computer field when released.
The majority of the Board's questions to Wing concerned the commission of the life offense. The Board focused on what Wing could have done differently on the night of the murder as well as whether Wing knew the victim actually lived in his apartment complex. Wing answered the Board's questions and discussed the life offense in detail.
On the advice of counsel, Wing refused to answer any questions from the deputy district attorney.
When asked who was responsible for the murder of the victim, Wing responded, "I'm solely responsible for the murder of Mr. Moore." Wing also admitted to being "extremely" remorseful for killing Moore and indicated he understood the consequences to Moore's family because of his actions. Wing stated he had changed himself, while incarcerated, to ensure he would not resort to violence again. He explained he had "done some severe introspection into [his] life, [his] past, and everything [he has] ever done, and how . . . [he] react[s] to [his] anger." He also explained the impact of his participation in Breaking Barriers, which caused him to change his life through the "belief window," i.e., how he views the world.
In closing, the deputy district attorney stressed Wing took too long to take responsibility for his actions and exhibited quintessential criminal behavior in killing Moore. Wing's attorney countered that Wing immediately took responsibility for his actions by calling 911 and admitted he alone was responsible for Moore's death. Wing's attorney also emphasized Wing is remorseful and the psychological evaluation shows he would not be a danger to society if paroled.
In Wing's final comments to the Board, he reiterated his remorse, pointed to his strong family support and work ethic, and promised he would be a productive member of society if paroled.
The Board's Decision
Based on the totality of the record, the Board denied Wing parole and concluded Wing "poses a present risk of danger to society or threat to public safety if released from prison." The Board based its decision primarily on its belief Wing lacks insight into the life offense because he minimized his actions in what occurred. In addition, in support of its decision, the Board referenced the life offense being "a very reckless offense, a murder." In its decision, the Board once again summarized the facts of the life offense in detail.
Despite finding Wing not suitable for parole, the Board acknowledged there was little other evidence supporting its decision:
"You have very little else that is not in your favor. In fact is [sic], I didn't find anything. Your prior criminality: You have none. Your social history is stable, was stable, and continues to be stable. You have no serious misconduct; you should be proud of that. That doesn't happen very often on this side of the table. This Panel feels that you are remorseful for your actions. Your parole plans are good. Your institutional adjustment is good."
The Habeas Proceeding
Wing petitioned the San Diego County Superior Court for a writ of habeas corpus to overturn the Board's denial, but the court denied the petition, finding "some evidence" supported the Board's decision. Wing then petitioned this court for a writ of habeas corpus challenging the Board's decision as unsupported by some evidence that his parole would unreasonably endanger the public and arguing the provision in Marsy's Law increasing the subsequent hearing period violates ex post facto principles. We issued an order to show cause why the requested relief should not be granted.
The Attorney General filed a return, denying the Board's decision was not supported by "some evidence" in the record due to the combined factors of the nature of Wing's commitment offense and his lack of insight. The Attorney General also argued the application of Marsy's Law does not violate ex post facto principles. Wing filed a traverse, asserting the Board, in its denial of parole, failed to set forth some reliable evidence showing his release from prison currently poses an unreasonable risk of danger to public safety.
DISCUSSION
I
THE BOARD'S DENIAL IS NOT SUPPORTED BY SOME EVIDENCE
A. The Parole Suitability Framework
As this court recognized in In Re Vasquez (2009) 170 Cal.App.4th 370 (Vasquez), "[t]he granting of parole is an essential part of our criminal justice system and is intended to assist those convicted of crime to integrate into society as constructive individuals as soon as possible and alleviate the cost of maintaining them in custodial facilities. [Citations.] Release on parole is said to be the rule, rather than the exception [citations] and the Board is required to set a release date unless it determines that 'the gravity of the current convicted offense . . . is such that consideration of the public safety requires a more lengthy period of incarceration . . . .' [Citation.]" (Id. at pp. 379-380.)
The decision whether to grant parole is an inherently subjective determination (In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz)) that is guided by a number of factors, some objective, identified in section 3041 and the Board's regulations. (Cal. Code Regs., tit. 15, §§ 2281, 2402.) In making the suitability determination, the Board must consider "[a]ll relevant, reliable information," such as the nature of the commitment offense including behavior before, during, and after the crime; the prisoner's social history; mental state; criminal record; attitude towards the crime; and parole plans. (Cal. Code Regs., tit. 15, § 2402, subd. (b).) The circumstances that tend to show unsuitability for parole include that the inmate: (1) committed the offense in a particularly heinous, atrocious or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) has previously sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (Cal. Code Regs., tit. 15, § 2402, subd. (c).) A factor that alone might not establish unsuitability for parole may still contribute to a finding of unsuitability. (Cal. Code Regs., tit. 15, § 2402, subd. (b).)
Factors that support the finding the crime was committed "in an especially heinous, atrocious or cruel manner" (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1)), include the following: (A) multiple victims were attacked, injured, or killed in the same or separate incidents; (B) the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (C) the victim was abused, defiled, or mutilated during or after the offense; (D) the offense was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering; and (E) the motive for the crime is inexplicable or very trivial in relation to the offense.
Circumstances tending to show suitability for parole include that the inmate: (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his life, especially if the stress had built over a long period of time; (5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use upon release; and (9) has engaged in institutional activities that indicate an enhanced ability to function within the law upon release. (Cal. Code Regs., tit. 15, § 2402, subd. (d).)
These criteria are "general guidelines," illustrative rather than exclusive, and " 'the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the [Board].' " (Rosenkrantz, supra, 29 Cal.4th at p. 654; Cal. Code Regs., tit. 15, § 2402, subds. (c), (d).) Thus, the endeavor is to try "to predict by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts." (Rosenkrantz, supra, at p. 655.) Because parole unsuitability factors need only be found by a preponderance of the evidence, the [Board] is free to consider facts apart from those found true by a jury or judge beyond a reasonable doubt. (Id. at p. 679.) Nonetheless, the Board's decision must comport with due process. (Id. at p. 660.)
B. Judicial Review
In Rosenkrantz, our Supreme Court addressed the standard for a court to apply when reviewing a parole decision by the executive branch. The court held that "the judicial branch is authorized to review the factual basis of a decision of the Board denying parole . . . 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 on the factors specified by statute and regulation." (Rosenkrantz, supra, 29 Cal.4th at p. 658.)
In In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence), our high court reaffirmed its analysis in Rosenkrantz, supra, 29 Cal.4th 616, that the decision of parole suitability is subject to the "some evidence" standard of review. (Lawrence, supra, at p. 1205.) However, in doing so, it recognized that Rosenkrantz's characterization of that standard as extremely deferential and requiring "[o]nly a modicum of evidence" (Rosenkrantz, supra, at p. 667) had generated confusion and disagreement among the lower courts "regarding the precise contours of the 'some evidence' standard." (Lawrence, supra, at p. 1206.) The court in Lawrence, recognizing that the legislative scheme contemplates "an assessment of an inmate's current dangerousness" (id. at p. 1205), clarified that the analysis required when reviewing a decision relating to a prisoner's current suitability for parole is "whether some evidence supports the decision of the Board that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings." (Id. at p. 1212.)
As to this standard, the court in Lawrence further explained that although it was "unquestionably deferential, [it was] certainly . . . not toothless, and 'due consideration' of the specified factors 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." (Lawrence, supra, 44 Cal.4th at p. 1210, italics added.) Because consideration of public safety is the primary statutory issue to be determined in deciding whether an inmate should be granted parole (§ 3041, subd. (b); Lawrence, supra, at p. 1205), "[t]his inquiry is, by necessity and by statutory mandate, an individualized one," and requires a court to consider the circumstances surrounding the commitment offense, along with the other facts in the record, to determine whether an inmate poses a current danger to public safety. (In re Shaputis (2008) 44 Cal.4th 1241, 1254-1255 (Shaputis).)
Regarding such consideration, "although the Board . . . may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre- or postincarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety." (Lawrence, supra, 44 Cal.4th at p. 1214.)
In this case, because the court below denied Wing's petition for a writ of habeas corpus, the current petition for habeas relief is an original proceeding that requires we independently review the record to determine whether there is some evidence to support the Board's decision in denying Wing parole. (In re Scott (2004) 119 Cal.App.4th 871, 884.) In other words, "we independently review the record [citation] to determine 'whether the identified facts [by the Board] are probative to the central issue of current dangerousness when considered in light of the full record before [the Board].' [Citation.]" (Vasquez, supra, 170 Cal.App.4th at pp. 382-383.)
C. Analysis
The parties disagree as to the factors the Board relied on in denying Wing parole. The Attorney General argues the Board relied on both the circumstances of the commitment offense and Wing's purported lack of insight. Wing, claims the Board only relied upon his lack of insight of the causative factors of the life offense in denying him parole.
The Board clearly referenced the circumstances of the life crime in supporting its decision. "As far as the offense goes, it was a very reckless offense, a murder." The Board then again described in detail the facts of the life offense. We thus conclude the Board was stating, perhaps inartfully, it was relying upon the circumstances of the commitment offense in support of its denial. There would have been no reason to repeat the facts of the life offense in detail otherwise.
1. Circumstances of the Commitment Offense
The Board found Wing committed "a very reckless offense, a murder." While the Board repeated the facts of the life offense, it did not describe the crime as "heinous," "atrocious" or "cruel." While we do not ascribe any talismanic qualities to a Board's use of these words, the law is clear that a factor showing an inmate is unsuitable for parole is the Board finding the life offense was committed "in an especially heinous, atrocious or cruel manner." (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1); Rosenkrantz, supra, 29 Cal.4th at p. 678.) Here, it is unclear if the Board made such a finding.
Even assuming the Board found that Wing committed the life offense "in an especially heinous, atrocious or cruel manner," this factor does not support the Board's denial on this record. The commitment offense predates incarceration and is immutable. In Lawrence, supra, 44 Cal.4th 1181, the court explained that parole for murderers is the rule, not the exception, and therefore, the immutable aggravated circumstances of an offense alone rarely will provide a valid basis to deny parole after an inmate has served the suggested base term and when there is strong evidence of rehabilitation and no other evidence of current dangerousness. (Id. at pp. 1211, 1218-1219.) Under such circumstances, the aggravated nature of the offense realistically loses probative value to show current dangerousness unless there is other, more recent evidence reasonably indicating that the offense still has some tendency to show that the inmate poses a risk of harm to others. (Id. at pp. 1214, 1219.)
Here, the Board described the murder as "reckless," but did not articulate how the life offense indicates Wing will be a current danger to the public if paroled. We agree with the Board that the circumstances of the life offense are despicable and fully justify Wing's conviction and sentence for second degree murder. These circumstances alone, however, are not "some evidence" supporting the Board's denial of parole. The inquiry into current dangerousness "cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate's psychological or mental attitude." (Lawrence, supra, 44 Cal.4th at p. 1221.) We find nothing in the record showing the Board's reasoning establishing a rational nexus between the life offense and the determination of current dangerousness. (Id. at p. 1210.)
Citing Lawrence, supra, 44 Cal.4th at page 1211, the Attorney General suggests the life crime is not temporally remote because Wing had not yet served his base term at the time of the hearing. We do not read Lawrence as providing such a bright line rule. Instead, the entire sentence from which the Attorney General quotes provides:
"But the statutory and regulatory mandate to normally grant parole to life prisoners who have committed murder means that, particularly after these prisoners have served their suggested base terms, the underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when there is strong evidence of rehabilitation and no other evidence of current dangerousness." (Ibid.)The court was not stating the circumstances of a crime only become immutable after an inmate serves his base term, but instead, reasoned the circumstances of a crime alone rarely will provide a valid ground to deny parole. The portion of the court's sentence on which the Attorney General relies does not limit this principle, but merely provides another aspect to consider when evaluating a Board's reliance on the circumstances of the life offense to deny parole.
The Attorney General also argues the nature of the life offense alone can constitute a sufficient basis for denying parole. (Rosencrantz, supra, 29 Cal.4th at p. 682.) While Rosenkrantz appears to support the Attorney General's proposition, the court also stressed the Board is "prohibited from adopting a blanket rule that automatically excludes parole for individuals who have been convicted of a particular type of offense." (Id. at p. 683.) Thus, the court concluded the Governor did not adopt a prohibited blanket rule to deny parole for murderers because he relied on the degree of violence and the amount of viciousness shown by the petitioner in committing the crime combined with the petitioner's conduct, affirming the violent act, while he remained a fugitive during the several weeks following the commission of the crime. (Ibid. ["Therefore, a life term offense or any other offenses underlying an indeterminate sentence must be particularly egregious to justify the denial of a parole date."].)
Here, there are no analogous facts before us. Unlike the petitioner in Rosenkrantz, Wing was not a fugitive for several weeks following the commission of the crime. Instead, he called 911 after shooting Moore. In addition, there is no indication in the record the Board was concerned with the degree of violence or the amount of viciousness Wing exhibited in committing the life offense. Indeed, by describing the offense as reckless, the Board, at the very least, left some doubt whether it believed (1) the life offense was committed in an "especially heinous, atrocious or cruel manner" (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1)), or (2) "no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction for that offense . . . ." (Rosenkrantz, supra, 44 Cal.4th at p. 683.)
Simply put, the Board's reliance on the circumstances of the life offense must be combined with some other evidence of current dangerousness. (Lawrence, supra, 44 Cal.4th at p. 1214.) On the record before us, we have no other indication of Wing's current dangerousness. As such, we conclude the circumstances of the life crime, committed some 15 years prior to the 2010 suitability hearing, without additional evidence, have little probative value regarding Wing's dangerousness to society if released.
2. Minimization/Lack of Insight
A prisoner's insight into his offenses and his understanding of the nature, magnitude and causes of his crime are important parole suitability factors. (In re Rodriguez (2011) 193 Cal.App.4th 85, 97.) Further, a "petitioner's current attitude toward the crime constitute[s] [a] factor[] indicating unsuitability for parole." (Shaputis, supra, 44 Cal.4th at p. 1246.) A conclusion that a petitioner remains dangerous and is unsuitable for parole can be supported by evidence that, among other things, the petitioner "is unable to gain insight into his antisocial behavior despite years of therapy and rehabilitative 'programming.' " (Id. at p. 1260.) However, expressions of insight and remorse will vary from inmate to inmate and there are no special words for an inmate to articulate to communicate he or she has committed to ending a previous pattern of violent or antisocial behavior. (Id. at p. 1260, fn. 18.)
Although case law is clear a Board can consider a petitioner's lack of insight of the life offense, it is obscure regarding the proper role of this nonstatutory factor for assessing suitability for parole.
The Supreme Court has recently discussed the "lack of insight" on the part of inmates and how the Governor or parole authorities may use lack of insight in parole decisions. (In re Shaputis (Dec. 29, 2011, S188655) ____ Cal.4th ____ (Shaputis II).) In that case, the court reaffirmed the requirement ofjudicial deference to executive branch decisions regarding paroles. The court noted parole authorities can use this factor as a basis of a parole denial and that judicial review is limited to determining whether there is a modicum of evidence to support the executive decision. (Id. at DJDAR 18589, 18593) The court recognized lack of insight may be an indicator of current dangerousness.
Shaputis II, supra, ____ Cal. 4th ____ does not require us to defer to the Board's decision based on lack of insight. It is apparent from a review of the record, as noted below, there is no evidence of a current lack of insight on the part of Wing. Indeed, the entire discussion by the Board focused on the events surrounding the commission of the life offense. Those events are relevant to parole review, but nothing in the Board's analysis supports a finding of current dangerousness based on a lack of insight at the time of the offense.
Here, the Board emphasized three issues in finding Wing lacked insight. First, the Board stated Wing's explanation that he was nervous, upset, afraid, and angry leading up to the commission of the life offense "just doesn't come together and make sense there to us." Second, the Board was troubled that Wing admitted he had called the police for assistance in the past, but did not do so on the evening he committed the life offense. Third, the Board believed Wing's testimony on the transcript of his 911 call after commission of the life offense was inconsistent with the facts in the parole report and appellate decision affirming Wing's conviction.
The first two issues ostensibly explore why Wing committed the life offense. However, the Board appeared more concerned with probing Wing's failure to act differently on the evening of the life offense rather than exploring his insight into the crime. For example, the Board would not allow Wing to explain why he engaged Moore if he was afraid of him:
"[The Board]: Okay. And yet, despite being frightened, you decided to actually physically engage him?
"Inmate Wing: Yes, sir. I guess that's --
"[The Board]: Okay. Thank you. That's all."
In addition, the Board and Wing discussed why Wing retrieved a gun and again focused on alternative action Wing could have taken on the evening he committed the life offense:
"[The Board]: And would you explain to me again why you retrieved the firearm?
"Inmate Wing: It was to bolster my ego, and my decision to do it, a citizen's arrest.
"[The Board]: And why would you want to do the citizen's arrest?
" Inmate Wing: Because he [Moore] had damaged my car, and I felt that he should be held accountable for that.
"[The Board]: And if you had had incidents before, which you mentioned, where you called the law enforcement, why didn't you call the law enforcement at this particular time?
"Inmate Wing: It was irrational thinking. I wasn't thinking.
"[The Board]: Were you angry?
"Inmate Wing: I was angry. I was fearful. I was upset.
"[The Board]: What were you --
"Inmate Wing: I was - -
"[The Board]: - - fearful of?
"Inmate Wing: - - humiliated.
"[The Board]: What were you fearful of?
"Inmate Wing: Of him [Moore]. That he was in my complex. That I didn't know why he was in my complex. I was afraid he was going to come back after me. And I think that initiated the response that I decided to -- that -- take care of it myself, which was wrong.
"[The Board]: Well, if you were afraid of him, and again, I know that's hindsight, looking back on it, my thinking would be that you'd go to your apartment, maybe get your gun, and call the police and tell them that you had somebody that was either stalking you or looking for you, or you felt that they were, and explain what happened. Is -- you never thought of that?
"Inmate Wing: At the time, no sir. I was in a state of shock and confusion. I wasn't thinking rationally."
Of course, had Wing remained in his apartment and just called the police to report his earlier encounter with Moore, Wing more than likely would not have committed the life offense. This hypothetical, however, is of little value in determining Wing's possible unreasonable risk to society if paroled. Indeed, Wing agreed with the Board: "I tried to be the authority, and I picked up a weapon and brought it into a situation that I had no experience in, and I shouldn't have been doing. I should have closed the door and called the police." However, we are not convinced Wing's admission that he should have reacted differently on the evening he committed the life offense evidences his lack of insight. To the contrary, this admission actually undermines the Board's claim Wing lacked insight. Wing acknowledges it was his anger and his inability to think rationally in response to his first interaction with Moore on his way home from work that lead him to commit the crime.
We also are not persuaded that inconsistencies between the 911 tape and the facts contained in the parole report and appellate decision affirming Wing's conviction evidence a lack of insight. Although the Board is not extremely clear in its decision, it appears to be troubled by two inconsistencies in the 911 call transcript. First, Wing apparently told the 911 operator Moore lived in his apartment complex while the facts in the appellate court opinion stated Moore occasionally stayed at the apartment complex. Whether Moore actually lived in the same apartment complex is of little importance in determining Moore's insight into his crime. During the suitability hearing, Wing testified he thought Moore lived in his apartment complex, but later discovered that he did not. Wing also testified he had not "consciously" seen Moore at the apartment complex prior to the evening Wing committed the life offense.
The Board also expressed concern about a reference in the transcript of the 911 call that Moore kept fighting. The Board stated it was not sure "if there was any fighting or not." However, the Board never asked Wing to explain the fighting reference during the suitability hearing. In addition, Wing testified Moore was resisting him and kept stopping after Wing grabbed him from the apartment patio and tried to take him to Wing's apartment. The Board, nevertheless, did not ask Wing if Moore's resistance was the fighting to which he referred during the 911 call. Thus, on the record before us, we are not convinced the reference to fighting during the 911 call is an inconsistent statement evidencing Wing's lack of insight. Moreover, on the record, we struggle to find any indication Wing exhibited a lack of insight. Wing testified at length regarding the circumstances of the life offense. He answered the Board's questions about the life offense. He admitted he was "solely responsible for the murder of Mr. Moore." He expressed remorse, and the Board found he was remorseful. Wing testified he had conducted a "fearless moral inventory" of his life, including what happened on the evening of the life offense. He emphasized that, through "severe introspection," he changed how he responds to anger. He further assured the Board he brings both Moore's face and the life offense to his "mind" every day so he "never ever could have a chance of ever repeating such a thing again." There is little more Wing could have done to show the Board he has sufficient insight into the life offense.
We understand the Board is in a better position to evaluate Wing's credibility, but the Board, in its decision, did not comment on Wing's credibility. Instead, the Board focused on Wing's explanation of the circumstances of his life offense and his failure to take a different course of action. Thus, we conclude the Board found Wing credible and review whether Wing's testimony provided some evidence to support the Board's conclusion that he lacked insight. As with any other factor relied on to find an inmate unsuitable for release on parole, "lack of insight" is probative of unsuitability only to the extent that it is both demonstrably shown by evidence in the record, and is rationally indicative of the inmate's current dangerousness. (Cf. Lawrence, supra, 44 Cal.4th at pp. 1211-1212.)
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D. Conclusion
But for the immutable nature of his life crime and the unsupported determination by the Board that he lacks insight, all the applicable regulatory criteria indicate that Wing is suitable for parole. (Cal. Code Regs., tit. 15, § 2402, subd. (d).) Wing has been a model prisoner since 1995. He has addressed the anger that led to his life offense via self-help, vocational and educational programs, and therapy. He has no prior criminal record or assaultive behavior, has no current mental health issues, and has remained discipline free in prison for over 15 years. The psychological evaluator concluded that Wing is a very good candidate for parole and would unlikely reoffend, finding him to be in the very lowest risk group for violence if released. The Board was satisfied with Wing's parole plans. The evidence at the hearing showed that Wing was credible, remorseful and that he had insight into his crime for which he accepted full responsibility. Given the undisputed evidence of Wing's rehabilitation and the lack of some evidence of current dangerousness to support the Board's decision, we are compelled to conclude under the standards adopted by Lawrence, supra, 44 Cal.4th 1181, and applied in this case, that the Board's decision is not supported by some evidence and therefore violated Wing's due process rights. Accordingly, Wing is entitled to habeas relief. Because the Board's finding of no suitability for parole has no evidentiary support, it cannot stand.
Accordingly, the Board's decision denying parole is vacated and the matter is remanded to the Board for a further hearing in accordance with due process standards as articulated in In re Prather (2010) 50 Cal.4th 238.
DISPOSITION
The relief sought in the petition for writ of habeas corpus is granted. The Board is directed to vacate its decision denying parole and thereafter proceed in accordance with due process of law, consistent with the decision of this court and the principles of res judicata. (In re Prather, supra, 50 Cal.4th 238.) In the interests of justice, this decision is made final as to this court seven days from the date of filing. (Cal. Rules of Court, rule 8.387(b)(3)(A).)
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HUFFMAN, J.
WE CONCUR:
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McCONNELL, P. J.
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AARON, J.