Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. 5549
Pollak, J.
We are presented with another petition for habeas corpus challenging the Governor’s reversal, prior to the decisions of our Supreme Court in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241(Shaputis), of a decision by the Board of Parole Hearings (the Board) that a life-term inmate is suitable for parole. Because the Governor’s decision was based solely on the gravity of the inmate’s crime and is not supported by any evidence that his release will pose an unreasonable risk of danger to society at this time, as required by Lawrence and Shaputis, we vacate the reversal and reinstate the Board’s decision.
FACTS AND PROCEDURAL HISTORY
On July 31, 1989, petitioner Charles Brooks, then 22 years of age, brutally beat and stabbed to death a 65-year-old victim, Mario Copovilla. When the victim was fishing on a pier in San Francisco, Brooks stabbed him in the head and neck numerous times with a needle-nose pliers he had removed from Copovilla’s fishing gear. After Brooks knocked the victim to his knees, he continued to beat him and then dragged him to the edge of the pier. Brooks then walked away, dropping the pliers in a trashcan. The victim ultimately died as a result of the injuries sustained in the attack.
According to Brooks, he began using crack cocaine in 1987, resulting in the loss of contact with his girlfriend and children, his home, and his employment. He established another intimate relationship, but due to the death of his brother and continued drug use he lost that relationship too. He became depressed and developed a drug-induced paranoid psychosis. On the day of the murder he walked to the pier to clear his mind and sort out voices he was hearing. Concerned about plots to take over the world, he reports experiencing bizarre ideation, paranoia, and grandiose ideation that he needed to save the world. In this confused state he recalls hearing a growl and, believing that he (a non-swimmer) was in danger of being thrown off the pier, he attacked Copovilla to fend off the imaginary threat he believed the victim posed.
Brooks was convicted in 1991 of second degree murder and sentenced to a term of 15 years to life imprisonment. On September 20, 2006, the Board found that Brooks is suitable for parole and that he will not pose an unreasonable danger to society if released. The Board concluded that Brooks had a stable social history with “continuingly stable relationships with others in this institution” and had gone to “great lengths in maintaining a stable relationship with his [immediate and extended] family.” It found that he had “enhanced his ability to function within the law . . . through participation in educational programs, self-help and therapy, vocational programs, institutional job assignments and other programming.” The panel (and Brooks himself) considered the crime to be “heinous” and “awful.” The Board did not condone or minimize his drug use but was impressed by Brooks’s significant progress over the years. The panel reviewed Brooks’s psychological evaluation, which assessed his violence potential as “no higher than that of the average citizen.” It noted the causal relationship between Brooks’s cocaine use and the commitment offense, concluding that at the time he was “most likely experiencing symptoms of a substance-induced psychotic disorder, hallucinations and paranoia, along with severely impaired judgment and insight . . . .” It stated that his drug dependency appeared to be in remission, in part due to his progress in 12-step recovery programs. The Board agreed with the psychological assessment, which noted no “unfinished business” or “unresolved issue that should preclude [Brooks’s] release. On the contrary, [Brooks] appears to have taken full advantage of individual and group therapy and a large number of self-help programs, and to have used them to gain sobriety, while at the same time he has developed considerable insight, a large measure of understanding, and an impressive array of coping skills.” The Board found Brooks to be suitable for release on parole and calculated his term to be 187 months. On February 14, 2007, the Board’s Decision Unit approved the panel’s decision, subject to gubernatorial review.
Two days later, on February 16, 2007, the Governor reversed the Board’s determination that petitioner is suitable for parole. The Governor’s decision recited the facts of the commitment offense. It referred to Brooks’s criminal record, which includes arrests but no convictions for defrauding an innkeeper, possession of a controlled substance, entering a noncommercial dwelling, resisting a police officer, transporting and selling a controlled substance, criminal conspiracy, attempted murder, and aggravated mayhem. The decision also referred to Brooks’s history of discipline while in prison, consisting of discipline for an over-familiar relationship with a staff member and a fighting incident in 1994, in addition to counseling for three minor violations, most recently in 2001. The Governor then reviewed numerous positive factors tending to indicate suitability for parole, including earning a GED in 1992, completing a paralegal course, completing vocational training in building maintenance and electronic computer repair, and having held “institutional positions such as clerk, scanner, library assistant, culinary worker, and teacher’s aide.” The Governor acknowledged Brooks’s participation in “an array of self-help and therapy, including Anger Management, Alcoholics Anonymous, Narcotics Anonymous, Addiction Treatment Unit, Framework for Recovery, Breaking Barriers, Intensive Parenting Education and Relationship Awareness, and The Purpose Driven Life.” Lastly, the Governor noted Brooks’s solid relationships and close ties with family members, his favorable evaluations from various correctional and mental-health professionals, and his plans to live with family and work in his uncle’s janitorial business.
The Governor concluded that “Despite the positive factors I considered, the second degree murder for which Mr. Brooks was convicted was especially heinous because his actions demonstrated an exceptionally callous disregard for Mr. Copovilla’s suffering and life. . . . The gravity of the second-degree murder committed by Mr. Brooks is alone sufficient for me to conclude presently that his release from prison would pose an unreasonable public-safety risk.” With respect to the Board’s conclusion that Brooks was under significant stress due to his drug abuse when he committed the commitment offense, the Governor stated that “Even if Mr. Brooks was under stress when he committed the life offense, I do not presently believe that this factor, by itself, sufficiently mitigates the severity of the crime he committed.” In conclusion the Governor repeated that although Brooks “made some creditable gains in prison, including accepting responsibility for his actions and expressing remorse,” he found that “the gravity of the murder perpetrated by Mr. Brooks presently outweighs the positive factors. Accordingly, . . .his release would pose an unreasonable risk of danger to society at this time.”
On June 13, 2008, also before the Supreme Court had decided Lawrence and Shaputis, the San Francisco Superior Court denied petitioner’s petition for a writ of habeas corpus, concluding that there is “ ‘some evidence’ that petitioner committed this crime in such a particularly heinous, atrocious or cruel manner as to undermine the evidence that Petitioner’s rehabilitative efforts demonstrate he no longer continued to pose an unreasonable danger to public safety if released from prison.” Petitioner then filed the instant petition in this court. After requesting informal briefing, we issued an order to show cause requiring the Governor to show that his decision reversing parole was supported by some evidence. Having reviewed the return, the traverse, and the arguments of the parties, we reverse the Governor’s decision and re-instate the Board’s September 20, 2006 decision finding the petitioner suitable for parole.
DISCUSSION
The Board is vested with the authority to determine the suitability of life inmates for parole and to set parole dates. (Pen. Code, § 3041.) There is an expectation that prisoners will be paroled unless either the Board or the Governor determines that the prisoner “pose[s] an unreasonable risk of danger to society if released from prison.” (Cal. Code Regs., tit. #15, § 2281, subd. (a); see Lawrence, supra, 44 Cal.4th at p. 1204; Shaputis, supra, 44 Cal.4th at p. 1258; In re Smith (2003) 114 Cal.App.4th 343, 351; In re Barker (2007) 151 Cal.App.4th 346, 364.) If the Governor determines that the Board’s grant of parole should be overturned there must be a “rational nexus” between the factors upon which the Governor relies and the finding that the prisoner continues to be a threat to public safety. (Lawrence, supra, at p. 1210.) “This standard is unquestionably deferential, but certainly is 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.” (Ibid.) “[T]he 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.” (Id. at p. 1211.) “Where, as here, all postconviction evidence in the record supports the determination that the inmate has been rehabilitated and no longer poses a danger to public safety, and the Governor has neither disputed this evidence nor related the commitment offense to current circumstances to suggest the inmate will continue to pose a danger if released, ‘mere recitation of the circumstances of the commitment offense, absent articulation of a rational nexus between those facts and current dangerousness, fails to provide the required “modicum of evidence” of unsuitability’ for parole.” (In re Burdan (2008) 169 Cal.App.4th 18, 39, citing Lawrence, supra, 44 Cal.4th at p. 1227; see also, e.g., In re Vasquez (2009) 170 Cal.App.4th 370 [where prisoner had been under significant stress at the time he murdered the victim, suggesting the crime was unlikely to recur, there was a positive psychological evaluation, and the prisoner had demonstrated a nonviolent history while incarcerated, commitment offense alone was insufficient basis to deny parole]; In re Gaul (2009) 170 Cal.App.4th 20 [despite evidence that the commitment offense demonstrated a callous disregard for the victim’s suffering, an unstable social history, and a 10-year-old psychological evaluation recommending continued therapy, there was no evidence to show that the prisoner currently posed an unreasonable risk to society if released].)
There is absolutely no evidence in this record to suggest that public safety would be unreasonably jeopardized if Brooks were released. Brooks has shown consistent and long-standing improvement in his mental health evaluations. A 2001 psychological evaluation documented that after his arrest, Brooks was diagnosed as psychotic. Staff at the California Medical Facility initially diagnosed him as having a major depression with psychotic features; more recently his diagnosis had been down-graded to dysthymia—a low-grade depression. The evaluator opined that Brooks’s “cocaine dependence and subsequent cocaine-related psychosis conjoined with situational losses to provoke a severe and slow-to-remit depressive disorder.” According to his most recent psychological evaluation, Brooks has not been in the prison mental health treatment program since October 4, 2001, has been free of mental health symptoms for some time, and has shown no evidence of relapse or new symptoms. His diagnosis on Axis I is ”Cocaine Dependence (By History), Institutional Remission, Cannabis and Alcohol Abuse (By History), Substance Induced Psychosis (By History), Resolved, No Symptoms.” He was given no Axis II or characterological diagnosis. His Axis IV diagnosis is “Life term with exceptional support from staff, family, & friends” and his Axis V level of global functioning was rated extremely high—95 on a 100-point scale. Assuming he does not return to abusing drugs or alcohol, the evaluating psychologist considered Brooks’s potential for dangerous behavior upon release to be “no higher than that of the average citizen in the community.” The evaluator acknowledged that there is always some risk that a former drug-dependent individual will relapse when leaving a controlled environment. But after noting that Brooks’s parole plans include participation in substance abuse programs and are “more detailed, practical and believable than those of most Life-term inmates [he had] evaluated,” the evaluator concluded that Brooks “stands an excellent chance of carrying out those plans” and complying with the evaluator’s additional recommendations.
While in prison Brooks has regularly participated in both Narcotics Anonymous and Alcoholics Anonymous meetings and has voluntarily submitted to drug testing—which has been negative. He was also treated at the addiction treatment unit at the California Medical Facility. In addition to participating in substance abuse programs, he has participated in numerous self-help programs, including stress management, relaxation, relationship awareness, parenting classes, anger management, a religious-based program, and a class in overcoming obstacles to personal change. During his time in prison he has been gainfully employed in a number of jobs including legal clerk, scanner and stock clerk, canteen clerk, culinary clerk, library assistant, and teacher’s aide. His work evaluations have varied from satisfactory to superlative. He has also found time to work in the prison hospice caring for dying patients and as a literacy tutor where he also earned high praise.
Notwithstanding the Attorney General’s attempt to buttress the Governor’s decision by referring to Brooks’s criminal history and in-prison disciplinary history, the only factor that the Governor relied on to reverse the Board is the gravity of the commitment offense. Although the Governor referred to numerous factors, both positive and negative, in reaching his decision he stated specifically, “The gravity of the second-degree murder committed by Mr. Brooks is alone sufficient for me to conclude presently that his release from prison would pose an unreasonable public-safety risk.” (Italics added.) Nowhere in his discussion of reasons for reversing the Board’s decision does the Governor mention any other factor. In his summation he states, “I find that the gravity of the murder perpetrated by Mr. Brooks presently outweighs the positive factors.” Our review is limited to the factors enumerated by the Governor as supporting his conclusion—not hypothetical findings he might have made. (In re Burdan, supra, 169 Cal.App.4th at p. 35; In re Roderick (2007) 154 Cal.App.4th 242, 265; In re DeLuna (2005) 126 Cal.App.4th 585, 593-594.)
Contrary to the contention made by the Attorney General at oral argument, nothing in Shaputis implies any disagreement with this principle. In Shaputis, the Governor himself relied on petitioner’s failure to accept responsibility for and lack of insight into his conduct towards the victim of his crime, one of the factors upon which the Supreme Court relied in upholding the Governor’s finding of unsuitability. (Shaputis, supra, 44 Cal.4th at pp. 1253, 1258, 1260.)
The Governor has not articulated any reason why Brooks’s 1989 commitment offense remains a valid predictor of his risk to the community. We have carefully reviewed the record and can find none. The Governor’s decision reversing the Board’s decision to grant parole therefore must be vacated. The Attorney General argues that in the event this court grants the petition, the matter should be remanded to the Governor for his further review. He emphasizes that the decision to grant or revoke parole is vested exclusively in the executive branch (Cal. Const., art V, § 8, subd. (b); In re Rosenkrantz (2002) 29 Cal.4th 616, 659.) and that the Governor made his decision before the Supreme Court clarified in Lawrence and Shaputis how the “some evidence” standard is to be applied.
Remand of this case would serve no useful purpose. Although Lawrence and Shaputis had not been decided when the Governor acted, his explanation for his decision to reject the determination of the Board made clear that he did so based solely on the gravity of the commitment offense. In vacating his decision and reinstating the decision of the executive body primarily charged with making parole suitability determinations—the Board—we do not substitute our judgment for that of the executive branch. In determining that the Governor failed to identify any evidence justifying the reversal of the Board’s decision, we do no more than perform the traditional judicial function of ensuring proper application of executive prerogatives. (See Morrissey v. Brewer (1972) 408 U.S. 471, 480; In re Prewitt (1972) 8 Cal.3d 470, 473-475.)
An increasing number of appellate decisions after Lawrence have recognized that when the record reflects no evidence supporting the denial of parole, the proper disposition is to avoid remand and, in effect, order the usually long-overdue release of the inmate. (See In re Burdan, supra,169 Cal.App.4th at p. 39 [“to ‘proceed in accordance with due process of law’ does not mean the Board, or the Governor, is to be given an opportunity to reconsider the parole decision. Rather, where, as here, it is determined there is not ‘some evidence’ in the record to support the Governor’s decision to overrule the Board’s grant of parole, the proper remedy is to vacate the Governor’s decision and to reinstate that of the Board. (See Lawrence, supra, 44 Cal.App.4th at pp. 1190, 1229 [affirming a Court of Appeal decision to vacate the Governor’s denial of parole and reinstate the Board’s grant of parole]”]; In re Vasquez, supra, 170 Cal.App.4th at p. 386 [Governor’s decision to reverse Board order granting inmate parole vacated and Board’s parole release order reinstated; in the interests of justice, opinion made final as to Court of Appeal seven days after filing]; In re Aguilar (2008) 168 Cal.App.4th 1479, 1491-1492 [“The Governor’s decision to reverse the Board's grant of parole to Aguilar is vacated and the Board's parole release order is reinstated. [¶] Because we have reviewed the materials that were before the Board and found no evidence to support a decision other than the one reached by the Board, a remand to the Governor would amount to an idle act. [Citation.] We therefore order that Aguilar be released forthwith pursuant to the conditions set forth in the Board’s December 6, 2005, decision. [Citation.] [¶] Considering that Aguilar’s release by the Board would have been final in April 2006, more than two and one-half years ago, and in the interests of justice, this opinion shall be final as to this court immediately”].)
The same practice is being followed when the Board itself incorrectly finds an inmate to be unsuitable for parole despite the absence of evidence of continuing dangerousness. (In re Gaul, supra, 170 Cal.App.4th at pp. 39, 40 [“Having concluded that no [evidence that the inmate constitutes a current threat to public safety] exists in ‘the full record before the Board’ [citation], vacating the denial of parole and directing the Board to conduct a new hearing on the same record would be a meaningless exercise”; “when the reviewing court has determined there is no evidence in the record that would support the denial of parole, there is no reason to order the Board to conduct any further hearing on the matter, at least in the absence of some new evidence about the inmate’s post-hearing conduct” ]; In re Singler (2008) 169 Cal.App.4th 1227, 1245 [directing Board to find inmate suitable for parole in the absence of evidence of events subsequent to the hearing being reviewed, showing that he currently poses an unreasonable risk of danger].)
DISPOSITION
The Governor’s February 16, 2007 decision reversing the Board’s decision granting petitioner parole is vacated. The Board’s decision granting petitioner parole shall be reinstated, provided that the Board does not determine that any circumstances occurring subsequent to its decision granting parole adversely affect its finding of suitability. Pursuant to petitioner’s request and because, absent the Governor’s action, the Board’s 2006 decision would have been final more than two years ago, this decision shall be final as to this court seven days after its filing. (Cal. Rules of Court, rule 8.490(b)(3); In re Elkins (2006) 144 Cal.App.4th 475, 503.)
Nothing in this decision limits the Board’s ability to rescind parole on an appropriate record, based on events occurring subsequent to the Board’s determination of suitability. (See Pen. Code, §§ 3041.5, 3041.7.)
We concur, McGuiness, P. J., Jenkins, J.
Moreover, the additional matters to which the Attorney General refers provide no indication that petitioner currently presents a risk of violence or illegal behavior. Petitioner’s pre-commitment criminal history (for which there were no convictions) is more than 20 years old and given the uncontradicted evidence that he has since stopped using drugs and engaged in a plethora of socially responsible activities, his prior criminal history loses much of its predictive value to show current dangerousness. With regard to Brooks’s discipline while imprisoned, he was disciplined 15 years ago for fighting. According to petitioner, another inmate under the influence of “pruno” (a homemade intoxicant) mistook him for someone else and attacked him. The one other incident for which he was disciplined was for over-familiarity with a clinical social worker working with him on a video project. No threats or violence were involved. Since 2001 Brooks has remained discipline free.