Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of habeas corpus, Super. Ct. No. C-63003.
Michael George Berger, in pro.per.; and Michael Satris, under appointment by the Court of Appeal, for Petitioner.
Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Assistant Attorney General, Jessica N. Blonien, Lora Fox Martin, Heather Bushman, and Linnea D. Piazza, Deputy Attorneys General, for Respondent.
OPINION
IKOLA, J.
Michael George Berger petitions this court for a writ of habeas corpus. Berger’s petition claims the California Board of Parole Hearings (Board) improperly found him, on multiple occasions, to be unsuitable for parole in contravention of Supreme Court case law. (See In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence); In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis).) These cases make clear that, to support a finding of unsuitability, there must be “some evidence” a prisoner remains a “current threat to public safety” and not “merely some evidence supporting the... characterization of the commitment offense as particularly egregious.” (Lawrence, supra, 44 Cal.4th at p. 1191.) Because we find the Board did not identify any evidence of current dangerousness, we grant Berger’s petition.
FACTS
Berger confessed to killing the victim in July 1986. The victim, a close friend of Berger, was living with Berger and Berger’s girlfriend Janice Wilson. A series of factors (e.g., Berger’s abuse of alcohol, Wilson’s dislike of the victim, the burglary of Berger’s apartment by individuals to whom Berger and the victim had sold drugs, domestic violence between Berger and Wilson) led to a verbal confrontation between Berger and the victim. When the victim attempted to leave, Berger grabbed him. The victim picked up a metal pipe out of his van and swung it at Berger. Berger caught the pipe, took it away, and bludgeoned the victim with the pipe four times on the head. The victim fell into his van, and Berger closed the door.
Berger discussed what happened with Wilson. Berger and Wilson argued about what to do; in the course of arguing, Berger “choked” Wilson (for the second time that day). That night, Berger and Wilson drove the victim’s van to Fullerton Airport and left the van (with the victim’s body inside). Ultimately, Wilson notified the police as to the whereabouts of the victim’s body and identified Berger as the killer.
Berger was convicted of second degree murder and sentenced to 15 years to life in prison. The Board denied Berger’s bids for parole from 1995 through 2005. Berger, born in July 1956, is now 53 years old.
July 2006 Hearing
Berger’s initial propria persona petition, filed with this court, related to his parole hearing on July 27, 2006. The Board, however, conducted another regularly scheduled parole hearing for Berger on November 6, 2008 — before the briefing and oral argument in this case occurred. This 2008 hearing occurred after the announcement (in August 2008) of Lawrence, supra, 44 Cal.4th 1181 and Shaputis, supra, 44 Cal.4th 1241. Indeed, Berger’s attorney argued to the Board at the November 2008 hearing that in light of Lawrence, and other recent cases, “it is an abuse of [the] due process rights of an inmate to continuously deny him parole based only on the commitment offense, which is a factor that does not change.”
After oral argument, we deemed Berger’s petition based on the July 2006 parole hearing to be moot. Even assuming relief would be justified based on the July 2006 findings of the Board, the appropriate remedy for the error would be to direct the Board to conduct a new hearing in light of Lawrence and Shaputis because those cases had not yet been announced at the time of the July 2006 parole hearing. As Berger already obtained this remedy through the passage of time, no further attention need be paid to the 2006 parole hearing.
November 2008 Hearing
Berger’s “supplemental” petition, filed by appointed counsel after this court granted an order to show cause, also raised the Board’s denial of parole on November 6, 2008. Having reviewed all of the information before it, the Board again found Berger “not yet suitable for parole and [he] would pose an unreasonable risk of danger to society or a threat to public safety if released from prison.”
We first held oral argument on September 21, 2009, but vacated submission of the case to allow the parties to file a supplemental return and supplemental traverse focused on the November 2008 parole hearing. Since September 2009, Berger once again received a parole hearing (in October 2009). But, unlike Berger’s challenge of the 2006 hearing, his challenge to the 2008 hearing is not moot. (See, e.g., In re Masoner (2009) 172 Cal.App.4th 1098, 1101, fn. 1.)
The Board explained its decision. “The first consideration that does weigh against suitability is the commitment offense. This certainly wasn’t a pretty offense. It was an offense that was carried out in an especially heinous and cruel manner. It was carried out in a very dispassionate manner. But it was carried out in a manner where the body was left in a vehicle to decompose. It was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering and the motive for this [crime] is inexplicable.... This was a lifelong friend. The Panel noted at the time of the autopsy that [the victim] was described as being 67-1/2 inches tall, weighing a rather light 107 pounds.”
“With respect to social history, the Panel did note the prior criminality as a juvenile [and subsequently as an adult]. There was the burglary. There was the unlawful taking of a vehicle. There was the stealing of the water. There was the driving under the influence. There was the Health and Safety Code violation. And... an assault and battery that... was charged out as a... disturbing the peace.... That would indicate that at the time of the commitment offense that you were on probation. The result of that, of course, is that you did fail to take a previous grant of probation... seriously. And that you failed to profit from society’s previous attempts to correct the criminality.” As noted above, Berger has admitted he was selling drugs and physically abusing his girlfriend at the time of the murder.
The Board noted “alcohol was a factor in your life at that particular time.” The Board then discussed other evidence. “The psychological report from Dr. Thatcher dated May 13 of 2008. The doctor, although he gives you[] a low to moderate risk, the doctor basically neutralized that finding so far as the moderate portion of it by indicating that those were more associated with the historical factors, which the Panel is aware historical factors cannot change or generally do not change. We noted no misconduct while incarcerated. So far as the parole plans, your parole plans seem viable.... Also, the level of programming that you’ve done.... We also noted the lack of an assaultive history as juvenile.... [W]e certainly want to commend you for these things but the considerations that make you unsuitable for parole... outweigh these positive aspects of your case.”
The risk conclusion in the psychological report itself states: “Overall current risk assessment estimates suggest that Mr. Berger falls within the range for future violence. Because of some of Mr. Berger’s historical risk factors that are not amenable to change, his risk level is unlikely to decrease further. This estimate takes into account his cultural background, language issues, personal, social, and criminal history, institutional programming, community/social support, release plans, and current clinical presentation. In addition, there is the caveat that such an assessment is at least partially based on the likelihood of continued abstinence from any substance abuse.” The report indicates Berger’s “diagnoses of Amphetamine Dependence and Alcohol Abuse... are noted to be in sustained-full remission.”
In sum, the Board relied on the circumstances of the commitment offense, Berger’s criminal and social history before his imprisonment, and Berger’s substance abuse issues before his imprisonment in finding defendant to be currently dangerous. The Board apparently did not rely on the psychological report as a factor supporting its finding.
DISCUSSION
The Board “shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual....” (Pen. Code, § 3041, subd. (b).)
“Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.” (Cal. Code Regs., tit. 15, § 2402, subd. (a).) “All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner’s social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner’s suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.” (Cal. Code Regs., tit. 15, § 2402, subd. (b).)
“The Board’s regulations set forth nine factors tending to show suitability for release on parole: (1) the absence of a juvenile record; (2) a history of reasonably stable social relationships with others; (3) tangible signs of remorse; (4) the commission of the crime resulted from significant stress, especially if the stress had built up over a long period of time; (5) battered woman syndrome; (6) a lack of history of violent crime; (7) increased age, which reduces the probability of recidivism; (8) marketable skills and reasonable plans for the future; and (9) responsible institutional behavior.” (In re Ross (2009) 170 Cal.App.4th 1490, 1503.) “Factors tending to demonstrate unsuitability for release on parole include the inmate’s (1) commission of the offense in an especially heinous, atrocious, or cruel manner; (2) previous history of violence; (3) unstable social history; (4) prior sadistic sexual offenses; (5) lengthy history of mental problems; and (6) serious misconduct in prison or jail.” (Ibid.)
“[W]hen a court reviews a decision of the Board... the relevant inquiry is whether some evidence supports the decision... that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings.” (Lawrence, supra, 44 Cal.4th at p. 1212.) “[T]he circumstances of the commitment offense (or any of the other factors related to unsuitability) establish unsuitability if, and only if, those circumstances are probative of the determination that a prisoner remains a danger to the public. It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public.” (Ibid.)
The Board relied on Berger’s criminal conduct, both the commitment offense in 1986 and prior criminal history, to support its finding Berger was currently dangerous to society. The Board also relied on Berger’s troubled social history in coming to its decision, including substance abuse issues. Does this amount to “some evidence” demonstrating current dangerousness, even though Berger’s prison record is spotless and the evidence suggests he has made significant progress toward becoming a better person?
It is difficult to agree with the Board’s conclusion that Berger’s commitment offense was particularly heinous, atrocious, or cruel. There was a single victim who was killed in a rage (not dispassionately), following a heated argument and after the victim picked up and swung the murder weapon. The offense was not carried out in a particularly callous manner. Berger used force which might be expected to result in the victim’s death, but there is no evidence Berger tortured the victim or took pause to consider how to deliver the death blows. The motive for the confrontation between Berger and his victim is inexplicable and trivial, but Berger’s proximate motivating factor for striking his victim with the metal pipe was the victim’s use of the pipe to attack Berger.
In addition, there is ample evidence demonstrating Berger’s suitability for parole. Berger has been a model inmate, developing work skills, participating in programming, and avoiding misbehavior. Reliance on Berger’s criminal and social history for a finding of current dangerousness is questionable. More than 20 years after the murder, there is no indication in the record that Berger will revert to his prior life if he is released from prison.
The psychological report cannot be taken as “some evidence” of current dangerousness, as the assessment of Berger as a low to moderate risk of future violence is based entirely on immutable historical factors from the time of the underlying offense. (Compare In re Criscione (2009) 180 Cal.App.4th 1446 [in case with similar facts to those here, upholding Board’s decision largely because Board expressed concern with lack of certainty in psychological report about the likely outcome of the prisoner’s future interactions with females after release].) Regardless, because the Board did not indicate it relied on Berger’s psychological report as a negative factor in its analysis, we cannot “salvage the Board’s inadequate findings by inferring factors that might have been relied upon.” (In re Roderick (2007) 154 Cal.App.4th 242, 265.)
While the Board duly considered all of the evidence put before it and all of the factors prescribed by its guiding regulations, the Board did not “establish[] a rational nexus between” its concerns and “the necessary basis for the ultimate decision — the determination of current dangerousness.” (Lawrence, supra, 44 Cal.4th at p. 1210.) There is no evidence that, if Berger were released now, he would still pose an unreasonable risk to the public.
The parties disagree on the appropriate remedy. Berger requests us to order his immediate release. The Board counters that it should be allowed another opportunity to conduct a de novo parole hearing. Under the circumstances of this case, a middle course is the correct one: “we direct the [Board] to find [Berger] suitable for parole unless new information, either previously undiscovered or discovered subsequent to the 200[8] hearing, supports a determination that [Berger] poses an unreasonable risk of danger if released on parole.” (In re Rico (2009) 171 Cal.App.4th 659, 688.)
DISPOSITION
Berger’s petition for writ of habeas corpus is granted and the Board is ordered to vacate its decision finding Berger unsuitable for parole. The Board is directed to conduct a new parole suitability hearing within 120 days of the issuance of the remittitur in this matter. At that hearing, the Board is directed to find Berger suitable for parole unless either previously undiscovered evidence or new evidence subsequent to the 2008 parole hearing, regarding his conduct, circumstances, or change in his mental state, supports a determination that he currently poses an unreasonable risk of danger to society if released on parole. Pursuant to California Rules of Court, rule 8.387(b)(3)(A), this opinion shall be final as to this court five days after it is filed.
WE CONCUR: RYLAARSDAM, ACTING P. J.ARONSON, J.