Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County S.Ct. No. 63185
Richman, J.
David Barker petitions this court, for the second time, for a writ of habeas corpus to effect his release from state prison. On his first trip here, we held that, according to the then-prevailing standard of In re Rosenkrantz (2002) 29 Cal.4th 616, and our decisions in In re Scott (2004) 119 Cal.App.4th 871 and In re Scott (2005) 133 Cal.App.4th 573, that there was not “some evidence” in the record to support the decision of a panel of the Board of Parole Hearings (Board) denying Barker parole. We directed the Board to conduct a new hearing. (In re Barker (2007) 151 Cal.App.4th 346, 378 (Barker I).) The Board held a new hearing, but the two-member panel could not agree, thus sending the matter to the entire eleven person Board. A unanimous Board (with one abstention) granted Barker parole. The Governor reversed the Board’s decision on the ground that releasing Barker “would pose an unreasonable risk of danger to society at this time,” a decision that was based solely upon the circumstances of the offenses for which Barker has been in prison for 31 years.
The Board ordinarily operates with parole hearings and release dates being decided by “a panel of two or more commissioners or deputy commissioners . . . . In the event of a tie vote, the matter shall be referred for an en banc hearing” by the entire Board. (Pen. Code, § 3041, subd. (a).)
Barker then filed this second petition. Applying the standard recently announced by our Supreme Court in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence), we conclude that Barker is entitled to relief because the circumstances of the commitment offenses do not, in and of themselves, establish that he remains a threat to public safety. It follows that there is not “some evidence” in the record probative on the issue of Barker’s current dangerousness if released, and the Governor’s decision cannot stand. Accordingly, Baker is entitled to release.
BACKGROUND
Because the extensive record filed in connection with Barker’s first petition is known to the parties and was set forth in detail in Barker I, only an abbreviated narrative is needed here.
In 1976, 20-year-old Barry Braeseke persuaded 16-year-old David Barker to assist in the murder of Braeseke’s parents and grandfather. On August 23 of that year, Braeseke shot his mother and father; Barker killed Braeseke’s grandfather by hitting his head several times with a chisel, and then shooting him in the head with the same .22 rifle Braeseke used to kill his parents. Barker was tried and convicted of two counts of second degree murder for the parents, and one count of first degree murder for the grandfather. In accordance with the determinate sentencing provisions then in effect, Barker was sentenced to concurrent terms of five years to life for the killing of Braeseke’s parents, and a concurrent term of life for the killing of Braeseke’s grandfather. This court affirmed Barker’s conviction. (People v. Barker (1979) 94 Cal.App.3d 321.)
Barker was 17 years old when he began serving his sentences in 1977. He was denied parole in 1982, 1984, 1986, 1987, 1988, 1991, 1994, 1997, 2000, and 2005. After this last denial, he filed his first habeas petition.
In our prior opinion, we noted in Barker’s history behind bars: “While in prison, Barker has had numerous jobs for which he has received consistent above-average to exceptional ratings. He also obtained his G.E.D. . . . and has completed 45 units in college courses. He completed vocational and on-the job training as an airframe mechanic, auto mechanic, carpenter, plumber, and clerk. Since 1987, he has participated in numerous therapy and self-help programs . . . . [¶] Barker has not had any disciplinary problems since 1995, and none of his six earlier disciplinary problems involved violent behavior.” (Barker I, supra, 151 Cal.App.4th 346, 355.) “Barker has accepted full responsibility for his part in the murders since at least 1995.” (Id. at p. 356.) “Every psychological evaluation in the record dating back to at least 1999 has concluded Barker would pose little or no danger to public safety if released on parole.” (Id. at p. 357.)
In its 2005 decision, the Board denied Barker parole on the ground that he “ ‘would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. Specifically, . . . [because] the offense [sic] was carried out in an especially cruel and callous manner . . . . The offense was carried out in a manner which demonstrates an exceptional callous disregard for human suffering in that . . . the murders were planned. The victims were particularly vulnerable as they were in their residence and had absolutely no idea what was about to take place. And the motive for the crime was inexplicable . . . . ’ ” (Barker I, supra, 151 Cal.App.4th 346, 359.) “ ‘[T]he inmate needs therapy in order to face, discuss, understand, and cope with stress in a nondestructive manner, and until progress is made, the inmate continues to be unpredictable and a threat to others. And the inmate’s gains are recent. He must demonstrate an ability to maintain these gains over an extended period of time.’ ” (Id. at p. 360.)
We concluded that “there is not ‘some evidence’ ” to support the Board’s findings, that, “Indeed, the record is 180 degrees to the contrary. [¶] Regarding the Board’s first finding, that Barker needed therapy, none of the recent psychological reports in the record mentions any need for therapy—or, for that matter, any difficulty in dealing with stress in a nondestructive manner.” (Barker I, supra, 151 Cal.App.4th 346, 366.) “The Board’s second finding, that Barker’s gains are recent, is likewise unsupported by ‘some evidence.’ As the Board itself acknowledged, Barker has been ‘disciplinary-free since 1995.’ More importantly, as mentioned above Barker has taken responsibility for his crimes since at least 1995—and perhaps as early as 1990. . . . [¶] Moreover, review of earlier Board decisions also suggests many of the suitability factors which the Board itself acknowledges Barker has satisfied . . . are not recent gains. Rather, from all indications Barker’s gains began long ago, and have been consistent He has participated in, and completed, self-help programs going back over 20 years; and he has not received even a minor infraction in over 10 years. Those gains are hardly ‘recent.’ ” (Id. at p. 368.)
We also concluded that the “suitability factors” for parole enumerated in title 15, section 2281 of the California Code of Regulations “support Barker,” and “the unsuitability factors do not support denial of parole.” (Barker I, supra, 151 Cal.App.4th 346, 369-370.) With respect to the sole unsuitability factor cited by the Board—the circumstances of the commitment offenses—we concluded that the circumstances of the killings were not sufficiently egregious to support the denial of parole on that basis alone. (Id. at pp. 372-375.)
Finally, and dispositively, we concluded that “the record before us contains no evidence Barker poses an unreasonable risk to public safety even under the deferential ‘some evidence’ standard.” (Barker I, supra, 151 Cal.App.4th 346, 377.)
Following our decision, a two-member panel of the Board conducted a new hearing on July 24, 2007. Barker was present, and underwent detailed questioning about his participation in the killings; how he viewed them—and his role in them—in retrospect; his life in prison; and his plans if paroled. At the conclusion of the hearing, one of the panel members voted that Barker should be granted parole, while the other member voted to deny parole, thus sending the matter to the full Board. (See fn. 1, ante.) On August 21, 2007, the Board granted Barker parole. Of the Board’s 11 members, ten voted for parole, none opposed, and one abstained.
On December 20, 2007, the Governor reversed the Board’s decision. In his decision, the Governor reviewed the circumstances of the killings at length. He also noted every incident in Barker’s life that had criminal or anti-social overtones:
“David [Barker] often boasted to Barry [Braeseke] that he had killed chickens before. Several times David tied a bag around some chickens’ heads and threw them up in the air to watch them hit the ground. He also buried a chicken up to its head, then put hay in a circle around the chicken and lit it on fire. Based on these experiences, David suggested the best way to kill Barry’s parents would be by hitting them on the head and choking them.
“[¶] . . . [¶] When he committed these crimes [i.e., the killings], Mr. Barker had no record of juvenile adjudications. Nonetheless, according to the probation report, he was reprimanded at age 13 for burglary and vandalism. A warrant was also issued for his arrest at age 16 for possessing fireworks, and one of Mr. Barker’s neighbors accused him of setting fire to a house and causing property damage. Mr. Barker told the 2007 Board [panel] that he may have caused the fire by setting off fireworks, but, ‘[i]f I did it, . . . it sure wasn’t something we did on purpose . . . .’ In addition, Mr. Barker admitted he experimented with marijuana prior to the murder. And as the Deputy District Attorney at the 2007 hearing said, ‘[h]e does have [a] disturbing record of cruelty to animals.’ ”
After reviewing Barker’s progress in prison, the Governor gave the following reasons for denying parolee:
“Despite the positive factors I considered, the murders for which David Barker was convicted were especially atrocious because multiple victims were killed in a cold and calculated manner. Indeed, each of the murders, including the murders of Barry’s parents, involved careful planning and preparation. David and Barry, according to the Statement by Judge and District Attorney, discussed in advance how to kill Barry’s parents, and David suggested that they hit and choke them. The crime partners selected weapons and, shortly before the murders, agreed to shoot the victims instead. While Barry’s parents and grandfather watched television, Barry approached his father from behind and shot him in the head at close range. David positioned himself behind Barry’s grandfather. While Barry shot his father and mother, David struck the grandfather on the head three or four times with a chisel. Barry threw his grandfather on the floor, and David shot him twice in the head.
“Furthermore, David’s motive for the murders was very trivial in relation to the magnitude of the offense. The 2000 Board asked David why he agreed to participate in the murders, and he replied, ‘I can’t give you a good reason. . . . I was a stupid kid, who somehow had felt sorry for [Barry].’ David told the 2005 Board that Barry ‘wore me down, you know, he got me to go along with him.’ David similarly told the 2007 Board, ‘there was almost a resignation in it. There was a “Yeah, okay, I guess this is where we’re at now.” ’ The Court of Appeal in 2007 said, ‘[i]t is undisputed that Barker committed the crime because (1) Braeseke told him that Braeseke’s father had abused Braeseke, and that the mother and grandfather had done nothing to stop the abuse; and (2) Barker, 16 years old at the time, sought the older Braeseke’s acceptance and succumbed to his persuasion.’ Although the Court concluded that Mr. Barker’s motive was not very trivial, I disagree. Here, the offense is not an isolated murder. This was a triple homicide. Members from two generations of the Braeseke family were gunned down in their own home. Moreover, David’s participation in these murders came after knowing Barry for less than two months. David told the 2000 Board that he had only known Barry for approximately six or seven weeks prior to the murders.
This is not exactly accurate. What we said was this: “[T]he record does not indicate that Barker’s motive was ‘very trivial in relation to [his] offense.’ ([Cal. Code Regs., tit. 15] § 2281, subd. (c)(1)(E).) ‘The offense committed by most prisoners serving life terms is, or course, murder. Given the high value our society places upon life, there is no motive for unlawfully taking the life of another human being that could not reasonably be deemed “trivial.” The Legislature has foreclosed that approach, however, by declaring that murderers with life sentences must “normally” be given release dates when they approach their minimum eligible parole dates. . . . The reference in Board regulations to motives that are “very trivial in relationship to the offense” therefore requires comparisons; to fit the regulatory description, the motive must be materially less significant (or more “trivial”) than those which conventionally drive people to commit the offense in question, and therefore more indicative of a risk of danger to society if the prisoner is released than is ordinarily presented.’ (Scott I, supra, 119 Cal.App.4th at p. 893.).” (Barker I, supra, 151 Cal.App.4th 346, 374.)
“Additionally, David’s motivation to participate in the murders was even more trivial because he previously decided he would not spend time with Barry due to Barry’s desire to kill his parents. David told the 2007 Board, ‘I stopped hanging out with him, because finally it did scare me when I realized he was serious.’ Recognizing the seriousness of Barry’s desire to murder his parents, David stopped seeing Barry for ‘a couple of weeks, at least a week, week and a half.’ David could have avoided planning and participating in these brutal murders. But he chose to continue. Given the nature and circumstances of the offense, the gravity of the murders committed by David Barker are alone sufficient for me to conclude presently that his release from prison would pose an unreasonable public safety risk. The Alameda County District Attorney’s Office agrees, registering opposition to parole with the 2007 Board based, in part, on the gravity of the offense.
“I note that the Board’s August 21, 2007 en banc decision granted parole to Mr. Barker based on ‘the reasons set forth by the Commissioner at the July 24, 2007 hearing . . . .’ Significantly, while the Commissioner who elected to deny Mr. Barker’s parole at the July 24, 2007 hearing considered the gravity of Mr. Barker’s offense, the granting member of the July 24, 2007 hearing panel did not consider the murders or their gravity when finding Mr. Barker suitable for parole. That Commissioner said, ‘the First Appellate Division [sic] made decisions in regard to the inability of us to use the gravity of the crime . . . .’ The Commissioner added, ‘[we were] unable to use in the case multiple murders; we were unable to discuss execution style and other specific circumstances . . . in regard to making a decision in your case.’
“At age 47 now, after being incarcerated for more than 31 years, Mr. Barker made some creditable gains in prison. But given the current record before me, and after carefully considering the very same factors the Board must consider, I find that the gravity of the murders committed by Mr. Barker presently outweighs the positive factors. Accordingly, because I believe his release would pose an unreasonable risk of danger to society at this time, I REVERSE the Board’s 2007 decision to grant parole to Mr. Barker.”
Barker then commenced this proceeding in January 2008 by filing his second habeas petition. While his petition was pending, the Supreme Court decided Lawrence, and at our request the parties provided supplemental briefing on the effect of that decision.
DISCUSSION
In Lawrence, the Supreme Court wrestled with the same issue before us: to what extent may the circumstances of the offense(s) for which a life prisoner was convicted be considered at the time of deciding whether to grant parole. After a lengthy review of its decisions in In re Dannenberg (2005) 34 Cal.4th 1061, and In re Rosenkrantz, supra, 29 Cal.4th 616, the court distilled its holding:
“In sum, the Penal Code and corresponding regulations establish that the fundamental consideration in parole decisions is public safety [citations], and our decisions in both Rosenkrantz and Dannenberg emphasized this point. Moreover, it is apparent from the foregoing discussion that the core determination of ‘public safety’ . . . involves an assessment of an inmate’s current dangerousness. As noted above, a parole release decision authorizes the Board (and the Governor) to identify and weigh only the factors relevant to predicting ‘whether the inmate will be able to live in society without committing additional antisocial acts.’ [Citation.] These factors are designed to guide an assessment of the inmate’s threat to society, if released, and hence could not logically relate to anything but the threat currently posed by the inmate. [Citations.]” (Lawrence, supra, 44 Cal.4th 1181, 1205-1206.)
“[Court of Appeal] decisions conclude that the some evidence standard described in Rosenkrantz and Dannenberg poses not simply a question of whether some evidence supports the factors cited for denial, but instead, whether the evidence supports the core determination required . . . before parole can be denied—that an inmate’s release will unreasonably endanger public safety.” (Lawrence, supra, 44 Cal.4th 1181, 1209.)
“[O]ur conclusion that current dangerousness (rather than the mere presence of a statutory unsuitability factor) is the focus of the parole decision is rooted in the governing statute. We have observed that ‘ “[t]he Board’s authority to make an exception [to the requirement of setting a parole date] based on the gravity of a life term inmate’s current or past offenses should not operate so as to swallow the rule that parole is ‘normally’ to be granted. Otherwise, the Board’s case-by-case rulings would destroy the proportionality contemplated by Penal Code section 3041, subdivision (a), and also by the murder statutes, which provide distinct terms of life without possibility of parole . . . . [Citations.]” ” ” (Lawrence, supra, 44 Cal.4th 1181, 1210-1211.)
“[T]he circumstance that the offense is aggravated does not, in every case, provide evidence that the inmate is a current threat to public safety. Indeed, it is not the circumstance that the crime is particularly egregious that makes a prisoner unsuitable for parole—it is the implication concerning future dangerousness that derives from the prisoner having committed that crime. Because the parole decision reflects 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.
“Accordingly, we conclude that although the Board and the Governor 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 post-incarceration 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 commitment offense remain probative to the statutory determination of a continuing threat to public safety.” (Lawrence, supra, 44 Cal.4th 1181, 1213-1214.)
“An evaluation of the circumstances of the crime in isolation allows a fact finder or reviewing court to determine whether a commitment offense was particularly egregious—a designation we have seen applied in nearly every murder case considered by the Board or the Governor—and to conclude that the prisoner was a danger to the public at or around the time of the commission of the offense. Absent affirmative of a change in the prisoner’s demeanor and mental state, the circumstances of the commitment offense may continue to be probative of the prisoner’s dangerousness for some time in the future. At some point, however, when there is affirmative evidence, based upon the prisoner’s subsequent behavior and current mental state, that the prisoner, if released, would not currently be dangerous, his or her past offense may no longer realistically constitute a reliable or accurate indicator of the prisoner’s current dangerousness.
“. . . [C]ontrary to the Attorney General’s contention that if the circumstances of the commitment offense are egregious, those circumstances will provide some evidence of current dangerousness in perpetuity, it is evident that the Legislature considered the passage of time—and the attendant changes in a prisoner’s maturity, understanding, and mental state—to be highly probative to the determination of current dangerousness.” (Lawrence, supra, 44 Cal.4th 1181, 1219-1220.)
The court reiterated the crucial point: “[T]he relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense. This inquiry is, by necessity and by statutory mandate, an individualized one and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time, or the attendant changes in the inmate’s psychological or mental attitude. . . . [¶] In sum, the Board or the Governor may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate’s criminal history, but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. [Citation.] Accordingly, the relevant inquiry for a reviewing court is not merely whether an inmate’s crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness, when considered in light of the full record before the Board or Governor.” (Lawrence, supra, 44 Cal.4th 1181, 1221)
In his supplemental brief, Barker asserts that Lawrence “unequivocally” supports him and “compels the grant of relief” because “the Governor’s decision in the instant case was based solely on Barker’s commitment offenses,” without any demonstration of how the killings of the 1976 killings are probative to the issue of Barker’s current dangerousness. The Attorney General, representing the warden of the prison where Barker is incarcerated, invokes the acknowledgements in Lawrence that “the Governor has discretion to be ‘more stringent or cautious’ in determining whether a defendant poses an unreasonable risk to public safety” and that courts should not reweigh the evidence considered by the Governor (Lawrence, supra, 44 Cal.4th 1181, 1204), and gamely tries to uphold the Governor’s decision. Thus, the Attorney General argues: “The Governor’s decision reflects his reasonable concern that a person who several times had tortured chickens and then agreed to, planned to, and then actually did kill three of another’s family members, remained a danger to public safety. Barker’s responses reflecting the indifference of his decision to kill Braeseke’s family are examples of his questionable demeanor and mental state. Nor can Barker’s rehabilitation be easily measured when his reason for committing the crime was essentially because he wanted a friend. The combination of pre-conviction factors and Barker’s responses reflect that Barker’s crime continued to be probative of his current dangerousness.”
But the Attorney General is constrained to admit that “The Governor specifically relied on the commitment offenses only” in reversing the Board’s decision, but he invites us to remedy the situation: “this Court can properly consider the other factors to Governor discussed when denying parole.” Barker treats this as a concession by the Attorney General that the Governor based his decision exclusively on the basis that the circumstances of Barker’s commitment offenses were sufficiently egregious, in and of themselves, to justify denying him parole. So do we. The “core determination” of the Governor’s decision was clearly and exclusively based upon the perceived danger to public safety if Barker was released. (See Lawrence, supra, 44 Cal.4th 1181, 1205, 1209.) And we decline to take up the Attorney General’s suggestion that we examine the record de novo with a view to discovering an alternate basis on which the Governor could have based his decision. Dredging up words to put in the Governor’s mouth is not our function. (E.g., In re Marriage of Fink (1979) 25 Cal.3d 877, 887-888 [“It is neither practical nor appropriate for us to comb the record on [a party’s] behalf”]; Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 113 [court “ ‘cannot be expected to search through a . . . record to discover evidence’ ”].)
The handful of events in Barker’s background prior to the killings that were negatively mentioned in the Governor’s decision—his treatment of chickens and the uncharged juvenile incidents—were discussed in our prior decision:
“Barker’s criminal record consists of the commitment offenses and one arrest in 1973, when Barker was 13 years old. Barker was arrested (along with four other juveniles) for burglary and vandalism of items from an apartment complex storage locker. He received a reprimand and his parents paid for his share of the damage. At the Parole Hearing Barker testified no charges were ever filed. . . .
“The April 2004 life prisoner evaluation report indicated that ‘[n]eighbors described [Barker] as a troublemaker and stated they saw him torture animals and light fire to a neighboring property that resulted in $45,000 worth of damage.’ Regarding the fire, Barker admitted at the Parole Hearing that he and a neighbor boy his age had been playing with bottle rockets in his backyard, and they may have accidentally started the fire in the house across the street, but it was not intentional or malicious. No charges were ever filed and Barker was not arrested in connection with this incident.
“Regarding torturing animals, Barker admitted during the Parole Hearing he had been cruel to chickens as a young teenager. However, he has since told a psychologist that his behavior was ‘senseless and stupid, and he is ashamed that he behaved that way.’ His background otherwise shows he was able to take care of animals, as Barker was an active member in the 4-H club some seven years (including three years as club president), and he raised cattle, pigeons, rabbits and chickens.” (Barker I, supra, 151 Cal.App.4th 346, 354-355.)
We also explained why these matters were not germane to the dispositive issue: “It is true that the presiding commissioner observed that Barker had ‘a juvenile burglary and vandalism’ and ‘there [was] some abuse with livestock, in particular chickens.’ However, there is no evidence in the record that either the incident leading to Barker’s arrest for burglary and vandalism or his abuse of chickens involved an actual or potential risk of harm to people. Thus, neither incident comes within the ambit of the unsuitability factor which provides as follows: ‘Previous Record of Violence. The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age.’ ([Cal. Code Regs., tit. 15,] § 2281, subd. (c)(2); cf. § 2281, subd. (d)(1) [listing as a suitability factor no juvenile record of ‘assaulting others’ or ‘committing crimes with a potential of personal harm to victims’].)” (Barker I, supra, 151 Cal.App.4th 346, 370-371, fn. 23, italics added.)
The Supreme Court in Lawrence subsequently made the same point. No one disputes that the killings of the Braeseke family members were brutal and senseless. No one challenges that Barker was properly convicted for his integral part in those killings. But while the fact of the killings is “immutable and unchangeable” (Lawrence, supra, 44 Cal.4th 1181, 1227), their legal import is not. Barker’s life in prison has not been perfect, but it has been on at upward course for a long time. This was shown in the record of the 2005 Board proceedings summarized in Barker I, and there is nothing in the record of the 2007 Board proceedings indicating a change in that trajectory. The Attorney General makes no real effort to argue otherwise.
We noted in our prior opinion that “Every psychological evaluation . . . dating back at least to 1999 has concluded Barker would pose little or no danger to public safety if released on parole.” (Barker I, supra, 151 Cal.App.4th 346, 357.) No change in that assessment was produced in the 2007 proceedings before the Board. We also noted Barker’s educational and job training achievements, the disappearance of disciplinary problems in prison, and that “Barker has accepted full responsibility for his part in the murders since at least 1995.” (Id. at pp. 355-356.) Finally, we noted that Barker has presented plans for “places to live and personal and financial support upon his release on parole.” (Id. at p. 357.) In these circumstances, “the unchanging factor of the gravity of petitioner’s commitment offense has no predictive value regarding [his] current threat to public safety, and thus provides no support for the Governor’s conclusion that petitioner is unsuitable for parole at the present time.” (Lawrence, supra, 44 Cal.4th 1181, 1226.)
This is the second time we have taken a hard look at this matter. We are very sensitive to the fact that the overarching consideration for the Board and the Governor is public safety. Nevertheless, we reach the same conclusion as did the Supreme Court in Lawrence. Because the circumstances in Lawrence are virtually identical to those here, we cannot improve upon the language used in Lawrence. We therefore adopt it as our own as applies to petitioner David Barker:
“When, as here, . . . the Governor has neither disputed the petitioner’s rehabilitative gains nor, importantly, related the commitment offense[s] to current circumstances or suggested that any further rehabilitation might change the ultimate decision that petitioner remains a danger, . . . absent articulation of a rational nexus between those facts and current dangerousness, fails to provide the required ‘modicum of evidence’ of unsuitability.
“Accordingly, under the circumstances of the present case—in which the record is replete with evidence establishing petitioner’s rehabilitation, insight, remorse, and psychological health, and devoid of any evidence supporting a finding that [he]continues to pose a threat to public safety—petitioner’s due process and statutory rights were violated by the Governor’s reliance upon the immutable and unchangeable circumstances of [his] commitment offense[s] in reversing the Board’s decision to grant parole. . . . The evidence relied upon by the Governor in this case—the egregiousness of the commitment offense[s]—does not provide ‘some evidence’ that petitioner remains a current threat to public safety. Accordingly, the Governor’s decision is not supported by ‘some evidence’ of current dangerousness and is properly set aside by this court.” (Lawrence, supra, 44 Cal.4th 1181, 1226-1227.)
DISPOSITION
The petition is granted. A writ of habeas corpus will issue vacating the Governor’s decision to reverse the Board’s grant of parole and reinstating the Board’s parole release order. This opinion shall be final as to this court immediately. (In re Scott, supra, 133 Cal.App.4th 573, 604; Cal. Rules of Court, rule 8.387(b)(3)(A).)
We concur: Kline, P.J. Lambden, J.