Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for a writ of habeas corpus, Los Angeles County Super. Ct. Nos. BA063168, BH004646 Peter P. Espinoza, Judge. Petition granted.
Sean Brown, in pro. per., and Melanie K. Dorian, under appointment by the Court of Appeal, for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jennifer A. Neill and Gregory J. Marcot, Deputy Attorneys General, for Respondent.
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
In 1993, Sean Brown was sentenced to an indeterminate prison term of 15 years to life for second degree murder, plus three years for using a firearm. In 2006, the Board of Parole Hearings (Board) found Brown suitable for parole, but the Governor reversed the decision. Brown has filed a petition for writ of habeas corpus. As the Governor’s decision is not supported by “some evidence,” we grant the petition as prayed.
RELEVANT FACTUAL AND PROCEDURAL HISTORY
A. Commitment Offense
On August 16, 1992, Brown, then 18 years old, and two codefendants, members of the 29th Street gang, drove around looking for rival Ghetto Boys gang members. Brown was armed with a sawed-off.22 caliber rifle. He has stated he wanted to retaliate against the rival gang for shooting and killing his friend the night before. Brown and his codefendants came upon a group of men gathered near the intersection of Adams Boulevard and Maple Avenue in Los Angeles. Brown recognized a rival gang member and opened fire. A security guard returned fire, which startled Brown’s codefendant (the driver) and caused him to crash the vehicle. All three occupants jumped out of the car and ran. Witnesses identified the three suspects, and they were promptly arrested. At the time of his arrest, Brown had several.22 caliber bullets in his pocket. He admitted shooting the victim, who had died at the hospital.
Brown pleaded guilty to and was convicted of one count of second degree murder, with a firearm enhancement. He was subsequently sentenced to a prison term of 18 years to life.
B. Social History
Brown was born on January 20, 1974, the ninth of 13 children born to Rose Marie Stephenson and Titus Lee Brown. Brown reported his father “slap[ped his] mom around” every weekend. His mother died of cancer in 1991. Brown has never been married and has no children. His current relationship with a number of his brothers and sisters is positive; several have written letters of support and have offered him a place to live when he is paroled.
Brown had finished 12th grade at the time of his arrest, and needed just five more credits to earn his diploma. He said he was not an athlete, but did play trumpet in the high school band.
Brown’s last job before his arrest was at McDonald’s, where he had worked from July 1990 until January 1992. He stated he was not a drug user. As for alcohol, he tried a beer once, but did not like how he felt, and never drank again.
Brown said he joined the 29th Street gang when he was 15 years old and was a gang member at the time of his commitment offense. Since his incarceration, he has had no gang involvement.
Brown’s contacts with law enforcement as a minor consisted of an arrest when he was 16 for receiving stolen property (a car) and driving the car without the owner’s consent. He was placed on juvenile probation, which had terminated prior to the date of the commitment offense. Brown has no adult record other than the commitment offense.
C. Prison Record
Brown was received at the Department of Corrections (now the Department of Corrections and Rehabilitation) in February 1993. He has a classification score of 19 (the lowest possible for a life term inmate) and a Medium A custody rating. His disciplinary record includes two “CDC 115” rule violations in 1996, both for disobeying direct orders, neither one involving violence. He has received six “CDC 128-A” counseling chronos, the most recent in 2005 for failing to report to class.
“‘Prisoner classification scores play a significant role in determining where, within the state’s many prison facilities, a prisoner will be sent to serve [his] term of incarceration. [Citation.] As a general rule, a prisoner’s classification score is directly proportional to the level of security needed to house the inmate....’... [¶] When a male inmate is first received in the prison system, he is housed at a reception center where his case factors are evaluated (i.e., length of sentence, criminal history, behavior during prior and current terms, including escape history) and a standardized system is used to compute a classification score to determine his initial placement in one of the state’s prisons or camps. (See [Cal. Code Regs., tit. 15,] §§ 3375.1–3375.3, subd. (a).) The score is recalculated at least yearly and may determine the necessity of subsequent prison transfers. ([Id., ] § 3375.4.)” (In re Player (2007) 146 Cal.App.4th 813, 823–824.) The mandatory minimum score for a life term inmate is 19. (CDCR, Department Operations Manual (electronic ed. Dec. 31, 2006) Adult Parole Operations, § 61010.11.5, pp. 465–466 [as of May 15, 2009].) Scores of 52 and above require the highest level of security (level IV). (Cal. Code Regs., tit. 15, § 3375.1, subd. (a)(4).)
The CDCR “uses... inmate custody designations to establish where an inmate shall be housed and assigned, and the level of staff supervision required to ensure institutional security and public safety[.]” (Cal. Code Regs., tit. 15, § 3377.1, subd. (a).) At the Medium A custody level, inmates are housed in cells or dormitories within the facility security perimeter; their assignments and activities must be within the facility security perimeter; and their supervision must be “frequent and direct.” (Id., subd. (a)(6)(A)–(C).)
A “CDC 115” documents misconduct believed to be a violation of law or otherwise not minor in nature. (See Cal. Code Regs., tit. 15, § 3312, subd. (a)(3); In re Gray (2007) 151 Cal.App.4th 379, 389.)
A “CDC 128-A” documents incidents of minor misconduct. (See Cal. Code Regs., tit. 15, § 3312, subd. (a)(2); In re Gray, supra, 151 Cal.App.4th at p. 389.)
Although the Board referred during the hearing to six CDC 128-A’s, in their decision, they referred to seven.
Brown has upgraded vocationally while in prison. He obtained his certification in Vocational Plumbing in 2003. Through the Emergency Management Institute, Brown completed courses in Developing and Managing Volunteers; Animals in Disaster, Community Planning; Livestock in Disaster; Building for the Earthquakes of Tomorrow; and Animals in Disaster, Awareness and Preparedness.
Brown has maintained full-time work assignments as well. His supervisors’ reports were never less than satisfactory and include many above average and several exceptional reports.
Brown has also upgraded educationally, earning his GED in 1998.
With regard to self-help and life skills programs, Brown participated in numerous therapy and self-help courses. He participated twice in Cage Your Rage, and also participated in Breaking Barriers (1999), Creative Conflict Resolution (2000), Parenting Program (2001), Alternative Parenting (2001), Victim Awareness (2005), Anger Management (2005), My Change Plan (2006), The Con Game (2006), and Relationships/Communication (2006). He also received a certificate for his participation in Alcoholics Anonymous (AA) (2001), although he has no substance abuse history.
D. Psychological Evaluations and Insight Into Offense
The American Psychiatric Association publishes the Diagnostic and Statistical Manual of Mental Disorders, Text Edition (4th Ed. 2000) setting forth all currently recognized mental health disorders and a comprehensive classification system. Generally, the classification system calls for information to be organized into five “axes” or dimensions to assist clinicians in planning treatment and assessing prognosis: (1) clinical disorders, (2) personality disorders, (3) medical conditions, (4) psychosocial and environmental problems, and (5) global assessment of functioning (GAF). (Id. at p. 27.) Using a point scale from one hundred down to one and organized into 10-point descriptive ranges, e.g., 80–71, 50–41, or 20–11, GAF scoring reflects higher functioning in the higher numbers. (Id. at p. 33.) Although we refer to the DSM-IV criteria, we recognize that the 2000 text edition of the manual is the authoritative source.
In the July 2005 psychological evaluation, the psychologist’s DSM-IV diagnosis was “no diagnosis or condition” on Axex 1 and II. On Axis III, she found no medical conditions relevant to AxsI and II. On Axis IV, “incarceration” was the only psychosocial stressor. Brown’s GAF (Global Assessment of Functioning) score was 75 (on a 100 point scale). She quoted Brown extensively in her evaluation, including his statements of remorse: “I take full responsibility for [the crime]. Not a day goes by that I don’t think about my victim... took his life for no reason... feel bad for his loved ones. Maybe he had kids that don’t have a father. I don’t know. He had family. I took their loved one away... can’t take it back. I would trade places with him if I could... deserve to be here.” The psychologist found Brown “very candid in his depiction of the crime. He has come to terms with his crime and his self recrimination is genuine and long lasting.”
In the Clinical Observations and Recommendations section, the psychologist noted Brown had not completed another vocation, per the Board’s request in 2003. She explained the difficulty: “Vocational training is at a premium at this prison, as is AA and NA [Narcotics Anonymous]. There are long waiting lists, and Mr. Brown will need to persevere to fulfill this recommendation by the Board. He may need to transfer to another prison in order to complete another trade. Nonetheless, he has excellent family support that could be counted for assistance in finding employment while he learns another trade or pursues additional academic goals. He demonstrated above average work ethics prior to incarceration while in Jr. High and High School, and can be counted on to continue doing so.”
Her assessment of Brown’s current dangerousness was brief: “Mr. Brown received two disciplinary 115’s in 1996, but not for violence. His commitment offense is the only violence in his history. His risk of violence is below average for parolee population.” While the psychologist appeared to believe Brown’s parole did not pose much of a risk of danger, it is unclear whether she was comparing him to the general prison population or to the public at large.
The May 2003 mental health evaluation complements the July 2005 evaluation to some extent. The psychologist’s DSM IV impressions do vary though: on Axis I, the psychologist diagnosed a history of adolescent antisocial behavior and deferred findings on Axes II and III. Axis IV was the same (incarceration was the psychosocial stressor), and Brown’s GAF score was 75–80. The psychologist observed that Brown was able to exhibit some insight into his own behavior, as well as remorse for his victim. He quoted Brown explaining some of his gang behavior: “I was trying to be someone I wasn’t.” In addition, the psychologist wrote, Brown “takes full responsibility for his actions. He added that at one time he blamed his family for not being there for him, but he has changed his attitude about this and sees his role and culpability. He stated that he knows that his actions ruined four families with his one mistake.” In his clinical observations, the psychologist stated that Brown “shows insight and remorse into his crime and an understanding of the long-term repercussions of what he did. He also shows some insight into his own personal dynamics that contributed to his committing this murder.”
Assessing Brown’s current dangerousness, the psychologist acknowledged Brown’s prison conduct had not been disciplinary free, citing the two CDC 115’s and “several minor 128 As.” Brown had, however, been disciplinary free since at least June 1997. Weighing a variety of factors to predict the risk of Brown’s potential for dangerousness, the psychologist opined:
“[I]t is my opinion that his potential for dangerousness in a level II facility is likely lower than average. In the community, his risk of dangerousness would be probably... no more than average. While he engaged in severely antisocial conduct in the commission of [the] life-term offense, he does not appear to have an antisocial personality. His crime appeared to be driven more by exogenous situational forces than by internal characterological factors. His emotional growth and maturity over the last 10 years of incarceration would be a positive factor in assuring that he would be able to recognize and avoid these kind[s] of situations if released. As long as he could stay disaffiliated from any gang associations, he would likely be a lower than average risk for future violence in the community.”
The psychologist concluded that Brown’s adjustment to incarceration, insight, and remorse made him “a good candidate” for parole consideration.
Even at the time of Brown’s CDC 115’s, there seemed to be relatively little concern about Brown’s dangerousness. The psychiatrist stated in 1997 that Brown’s potential for violence “appears to be less than it was at the time the crime was committed and it also appears to be less than that of the average inmate.” The psychiatrist’s DSM IV impressions on Axes I and III were no diagnosis.” On Axis II, the psychiatrist diagnosed antisocial behavior.” On Axis IV, he observed mild stressors in the prison setting. The psychiatrist did not assign Brown a numerical GAF score, but stated “[i]nmate is showing a good level of functioning.”
By the July 2005 evaluation, antisocial behavior” was no longer listed for Axis II.
E. Parole Plans
Brown plans to reside with one of his sisters in her apartment in Los Angeles. He also has an offer to live with several of his other sisters.
Brown provided a written offer from Jay Dixon to work for Dixon’s Automobile Restoring & Towing Service. Mr. Dixon wrote: “[Brown] would be assisting me with repairing odds & ends on clients[’] vehicle[s]. I am willing to help [Brown] with anything that could possibly help him get a new start in life. If not my business perhaps my assistan[ce] can be of some help.” Brown stated he also has an offer to work in maintenance.
One of Brown’s sisters, who lives in Texas, offered Brown a place to stay and “[f]inancial, emotional and spiritual support.” Brown’s sister’s significant other offered monetary resources, traveling expenses, meals, and housing if Brown is allowed to travel to Texas. The panel members during Brown’s hearing reviewed several other letters of support, including one from Larry Saunders, who offered clothing and support, Brown’s sister, Rosalyn Brown, his niece, Michele Deon (who also offered clothing, transportation, housing, and money), his sister and brother-in-law, Tara and Eugene Howard (“[m]y husband and I are willing to take him into our home, provide him shelter, food, clothing and whatever other items he needs”), his sister, Cassandra D. Brown, and the Howards’ pastor, Edran N. Jones.
F. District Attorney’s Position on Parole
The district attorney opposed Brown’s parole, as did Los Angeles Chief of Police, William J. Bratton.
G. Board Hearing and Decision
Brown’s parole board hearing in 2006 was his second such hearing. Addressing the Board, Brown stated repeatedly that he took full responsibility for his crime, that he understood how many people were affected, and that he wanted to apologize to the victim’s family. Discussing his gang involvement, Brown acknowledged the “very negative effect on the community”: “And I was a part of that, you know. So I’m pretty sure everybody in the neighborhood [was]... pretty much scared of the way we was running around, you know. And... I can understand it because I got nieces and nephews. So at the same time, my sisters and them, they afraid too because all the gang violence that’s going on out there. I wouldn’t wish to see neither one of them get hurt. And I mean, but I sit back and think about it and blame, you know, I was a part of all this.... So I know it’s not easy.... And that’s why I wish that I never had joined a gang. But you know, I was weak and I gave into it. Gave into it.”
He said he was an unreasonable risk to society when he entered prison, but at age 32, he had “grown up,” “matured,” was “constantly learning,” and “trying to better [him]self now.” His parole plans were realistic because he had a legitimate place to stay with his sister. He also had marketable skills—plumbing, welding, electronics, and auto mechanics.
The Board found Brown suitable for parole. They cited his strong family relationship, the lack of any drugs or alcohol in his background, the fact he had enhanced his ability to function within the law upon release through participation in educational programs, self-help and therapy, vocational programs, and institutional job assignments. “[T]his Panel notes that he showed his work ethic by his early establishment of continuous work for two years at McDonald’s. He committed this crime as a result of significant stress in his life. He lacks a significant criminal history of violent crime, albeit... he was participating in a gang notorious for violence. Because of maturation, growth, greater understanding and advanced age he has a reduced probability of recidivism. He has realistic parole plans that include a job offer and family support.” The Board noted that Brown’s last CDC 115 was in 1996.
The Board further cited Brown’s remorse and understanding of the nature and magnitude of his offense, and his “desire to change toward good citizenship.” Brown had also displayed no violence and had resisted all gang ties while in prison. The Board reiterated that Brown had “showed us your insight into your criminality and motivation for the crime and that you are here today taking realistic responsibility for your actions.”
The Board quoted extensively from all the psychological evaluations and stated Brown’s work supervisors consistently said positive things about his attitude and ability to work with people. The Board calculated Brown’s term from the matrix contained in the regulations. After deducting time for his good behavior but not for the time forfeited due to his CDC 115’s, the Board set Brown’s term at 208 months, which he has not yet served.
H. Governor’s Reversal
On August 30, 2006, Governor Arnold Schwarzenegger reversed the Board’s decision. The Governor acknowledged positive factors but determined that the gravity of the offense outweighed those achievements. The murder was especially atrocious because Brown “actively, willingly, and knowingly participated in a gang-related drive-by shooting that resulted in the murder of a 21 year old man.” There was evidence of premeditation because Brown told the Board that he “‘picked up that gun and decided to go retaliate the death of my friend who was killed the night before.’” Brown also put the safety of others at the scene at risk. The Governor stated he did not believe that the stress Brown was experiencing at the time of the offense mitigated the nature and circumstances of the offense. The Governor did not articulate a nexus between the offense and his conclusion that Brown’s release would pose an unreasonable risk of danger to society.
I. Habeas Corpus Proceedings
Brown filed a petition for writ of habeas corpus in April 2007 in the Los Angeles County Superior Court. The court found the Governor’s reversal supported by some evidence. In particular, the court noted the Governor’s reliance on the evidence of premeditation. The record also indicated that the offense was especially heinous, atrocious or cruel under the applicable regulations because it was carried out in a dispassionate and calculated manner: “The victim was essentially executed by the Petitioner and his crime partners for being a member of a rival gang.”
Brown filed his petition for writ of habeas corpus in this court in October 2007. We requested informal opposition, then issued an alternative writ or order to show cause in May 2008, set a briefing schedule, and appointed counsel. We stayed further proceedings pending the Supreme Court’s decisions in In re Lawrence (2008) 44 Cal.4th 1181, and In re Shaputis (2008) 44 Cal.4th 1241. The stay was vacated in December 2008, and a new briefing schedule was set. The warden filed a return, and Brown filed a traverse. The case is now ready for decision.
DISCUSSION
Brown contends the Governor articulated no evidence that his parole would pose a current threat to public safety. We agree.
A. Governing Law
The purpose of parole is to help prisoners “reintegrate into society as constructive individuals as soon as they are able,” without being confined for the full term of their sentence. (Morrissey v. Brewer (1972) 408 U.S. 471, 477 [92 S.Ct. 2593].) Although a prisoner has no constitutional or inherent right to be conditionally released before the expiration of his sentence (Greenholtz v. Nebraska Penal Inmates (1979) 442 U.S. 1, 7 [99 S.Ct. 2100]), in this state, Penal Code section 3041 creates in every inmate a cognizable liberty interest in parole, and that interest is protected by the procedural safeguards of the due process clause. (In re Lawrence, supra,44 Cal.4th at p. 1205 [“petitioner is entitled to a constitutionally adequate and meaningful review of a parole decision, because an inmate’s due process right ‘cannot exist in any practical sense without a remedy against its abrogation,’” quoting In re Rosenkrantz (2002) 29 Cal.4th 616, 664]; Biggs v. Terhune (9th Cir. 2003) 334 F.3d 910, 914–915.)
All references to section 3041 are to that section of the Penal Code. Section 3041, subdivision (a), provides as relevant: “One year prior to the inmate’s minimum eligible parole release date a panel of two or more commissioners or deputy commissioners shall again meet with the inmate and shall normally set a parole release date as provided in Section 3041.5.... The release date shall be set in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public, and that will comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of parole release dates. The board shall establish criteria for the setting of parole release dates and in doing so shall consider the number of victims of the crime for which the inmate was sentenced and other factors in mitigation or aggravation of the crime.”
Section 3041, subdivision (b) establishes a presumption that parole will be the rule, rather than the exception, providing that the Board “shall 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 for this individual, and that a parole date, therefore, cannot be fixed.” (See Board of Pardons v. Allen (1987) 482 U.S. 369, 377–378 [107 S.Ct. 2415] [unless designated findings made, parole generally presumed to be available].) “[I]n light of the constitutional liberty interest at stake, judicial review must be sufficiently robust to reveal and remedy any evident deprivation of constitutional rights.” (In re Lawrence, supra, 44 Cal.4th at p. 1211; Irons v. Carey (9th Cir. 2007) 505 F.3d 846, 850 [section 3041 vests “California prisoners whose sentences provide for the possibility of parole with a constitutionally protected liberty interest in the receipt of a parole release date, a liberty interest that is protected by the procedural safeguards of the Due Process Clause”].)
When assessing whether a life prisoner will pose an unreasonable risk of danger to society if released from prison, the panel considers all relevant, reliable information available on a case-by-case basis. The regulations set forth a nonexclusive list of circumstances tending to show suitability or unsuitability for release. (Cal. Code Regs., tit. 15, § 2402, subds. (c) & (d).) Factors tending to indicate suitability include: (1) the absence of a juvenile record, (2) stable social history, (3) signs of remorse, (4) significant life stress motivated the crime, (5) battered woman syndrome, (6) no significant history of violent crime, (7) inmate’s age, (8) realistic plans for the future, and (9) institutional behavior. (§ 2402, subd. (d).) Circumstances tending to show unsuitability include: (1) commitment offense was committed “in an especially heinous, atrocious or cruel manner,” (2) previous record of violence, (3) unstable social history, (4) sadistic sexual offenses, (5) psychological factors, and (6) serious misconduct while incarcerated. (§ 2402, subd. (c).) “In sum, the Penal Code and corresponding regulations establish that the fundamental consideration in parole decisions is public safety.” (In re Lawrence, supra, 44 Cal.4th at p. 1205.)
Regulation references are to title 15 of the California Code of Regulations unless otherwise indicated.
The regulation specifies the factors to be considered in determining whether the offense was committed in an especially heinous, atrocious or cruel manner as: “(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 which demonstrates an exceptionally callous disregard for human suffering. [¶] (E) The motive for the crime is inexplicable or very trivial in relation to the offense.” (§ 2402, subd. (c)(1).)
The “core determination” thus “involves an assessment of an inmate’s current dangerousness.” (In re Lawrence, supra, 44 Cal.4th at p. 1205, original italics.) The Board is authorized “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.’” (In re Lawrence, supra, 44 Cal.4th at pp. 1205–1206, quoting In re Rosenkrantz, supra, 29 Cal.4th at p. 655.) “[D]irecting the Board to consider the statutory factors relevant to suitability, many of which relate to postconviction conduct and rehabilitation, the Legislature explicitly recognized that the inmate’s threat to public safety could be minimized over time by changes in attitude, acceptance of responsibility, and a commitment to living within the strictures of the law.” (In re Lawrence, supra, 44 Cal.4th at p. 1219.) As a result, 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.” (In re Lawrence, supra, 44 Cal.4th at p. 1211.) The Board can, of course, rely on the aggravated circumstances of the commitment offense as a reason for finding an inmate unsuitable for parole; however, “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... current demeanor and mental state, indicates that the implications regarding the prisoner’s dangerousness that derive from his... commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.” (In re Lawrence, supra, 44 Cal.4th at p. 1214, italics in original.)
When reviewing the Board’s decision, the Governor must consider the same factors as the Board. (Cal. Const., art. V, § 8, subd. (b); In re Rosenkrantz, supra, 29 Cal.4th at p. 676.) The Governor may weigh the factors differently than did the Board. (Cal. Code Regs., tit. 15, § 2402, subds. (c) & (d).) The test, though, remains the same: whether some evidence indicates a parolee’s release would unreasonably endanger public safety. (Cal. Code. Regs., tit. 15, § 2402, subd. (a).)
B. Standard of Review
“[W]hen a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings.” (In re Lawrence, supra, 44 Cal.4th at p. 1212, original italics.) The standard is “unquestionably deferential,” and “‘limited to ascertaining whether there is some evidence in the record that supports the [Board’s] decision.’” (Id. at p. 1210.) Nonetheless, the standard “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.) Our inquiry thus 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.” (Id. at p. 1221, original italics.) The Board or Governor must articulate a “rational nexus” between the facts of the commitment offense and the inmate’s current threat to public safety. (Id. at pp. 1226–1227 [finding no evidence supported Governor’s determination that Lawrence remained a threat to public safety in view of her “extraordinary rehabilitative efforts specifically tailored to address the circumstances that led to her criminality, her insight into her past criminal behavior, her expressions of remorse, her realistic parole plans, the support of her family, and numerous institutional reports justifying parole, as well as the favorable discretionary decisions of the Board”].)
C. Analysis
As in Lawrence, the unsuitability decision here was based solely on the commitment offense. The Governor said as much: “The gravity of the second-degree murder perpetrated by Mr. Brown is alone sufficient for me to conclude presently that his release from prison would pose an unreasonable public-safety risk.” The Governor stated the murder was “especially atrocious because Mr. Brown actively, willingly, and knowingly participated in a gang-related drive-by shooting that resulted in the murder of a 21 year old man.” The Governor stated there was evidence of premeditation, notably Brown’s statement during the parole hearing that he had “picked up that gun and decided to retaliate the death of my friend....” The Governor also pointed to the opinion of one of the investigating officers, set forth in the probation report that Brown and his cohorts “‘conspired to assault rival gang members. They armed themselves and went in search of those gang members in order to inflict harm.’” Brown also put others at risk by his actions. The Governor disputed the Board’s finding that Brown committed the offense due to significant stress in his life, relying on Brown’s statement at the parole hearing that he meant to retaliate against the rival gang. The Governor concluded that, weighing the gravity of the murder against the “creditable gains” Brown had made during incarceration, “the gravity of the murder... presently outweighs the positive factors.”
Reliance on the aggravated circumstances of the commitment offense as a factor in finding an inmate unsuitable for parole is proper, but there must also be “something in the prisoner’s pre- or post-incarceration history, or his... current demeanor and mental state, indicat[ing] that the implications regarding the prisoner’s dangerousness that derive from his... commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.” (In re Lawrence, supra, 44 Cal.4th at p. 1214.) The Governor did not purport to rely on anything other than the commitment offense and made no mention of any connection to his finding that Brown’s release (in October 2011) would pose an unreasonable risk of danger to society. Nothing in Brown’s pre- or post-incarceration history, or his current demeanor and mental state support a prediction of current dangerousness. The Governor failed to offer a single reason why Brown remained a public safety risk, 14 years after the commitment offense, nor did he “establish[] a rational nexus between those factors and the necessary basis for the ultimate decision—the determination of current dangerousness.” (Id. at p. 1210.) In a case such as this, “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” in reversing the Board’s finding of suitability. (Id. at p. 1227.) We conclude that, just as in Lawrence, there was no evidence in the record to establish that Brown’s parole currently poses a threat to public safety. His rights were thus violated by the Governor’s reliance solely upon the circumstances of his commitment offense.
DISPOSITION
The petition for writ of habeas corpus is granted. The Governor’s 2006 decision reversing the Board’s grant of parole is vacated, and the Board’s 2006 decision finding Brown suitable for parole is reinstated.
We concur: MALLANO, P.J. ROTHSCHILD, J.