Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for Los Angeles County, Ct. No. BH005336 Peter Paul Espinoza, Judge.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Heather Bushman and Kathleen R. Frey, Deputy Attorneys General, for Appellant.
Melanie K. Dorian, under appointment by the Court of Appeal, for Respondent.
WILLHITE, J.
The Board of Parole Hearings (the Board) appeals from a superior court order granting a petition for writ of habeas corpus filed by prisoner Glenn Cannon after the Board concluded that Cannon was not suitable for parole and would pose an unreasonable risk of danger to society if released. The superior court found the Board’s conclusion was not supported by “some evidence,” vacated the Board’s decision denying parole, and ordered the Board to conduct a new parole hearing. We affirm the judgment.
We note that the Board of Parole Hearings replaced the Board of Prison Terms in July 2005. (Pen. Code, § 5075, subd. (a).) For ease of reference, we will use the same term -- “the Board” -- to refer to both entities because they performed the same duties. (See, e.g., In re Lawrence (2008) 44 Cal.4th 1181, 1190, fn. 1 (Lawrence).)
BACKGROUND
Sometime in the early morning hours of June 27, 1986, Cannon stabbed his 79-year-old aunt 11 times, killing her. Her nude body was discovered by her ex-husband and his son later than morning; she had not been sexually assaulted.
According to Cannon, he had gone to his aunt’s house that morning to seek guidance from her. His aunt had raised him for a time after his parents were killed in a car accident when he was six or seven years old, and he “always went to her whenever [he] needed somebody.” He needed her help that morning because his life was a mess: he had become addicted to cocaine, his wife left him, he lost his home to foreclosure, he was in danger of losing his job, and he was suicidal. After talking with his aunt for a while, he became more despondent and grabbed a letter opener from the coffee table. He tried to stab himself with the letter opener, but his aunt intervened and he cut her instead. When he realized he had hurt her, he panicked and stabbed her to death. He wanted to get rid of the evidence, so he started grabbing things, including his aunt’s robe (which had come off during the struggle), and tried to ransack the apartment to make it look like someone had broken in.
After he left the apartment he wandered aimlessly for two days, feeling guilty. Eventually, he flagged down a police officer and told him he had killed his aunt. He was convicted of second degree murder with use of a deadly weapon (Pen. Code, §§ 187, 12022.3), and sentenced to a term of 16 years to life in prison (15 years to life for murder, plus one year for the weapon use enhancement). He was received by the California Department of Corrections on June 6, 1988, and his minimum parole eligibility date was June 30, 1997.
In 2003, the Board found that Cannon was suitable for parole and would not pose an unreasonable risk of danger to society if released from prison. The Governor, however, reversed the Board’s decision, finding that Cannon posed an unreasonable risk to public safety based on the gravity and depravity of the committed offense.
The Governor also expressed concern about the absence in the record of current job offer for Cannon if he were released; he noted that Cannon and the Board believed that Cannon committed the offense while under significant stress, and Cannon attributed some of that stress to financial problems.
The Board held a subsequent parole consideration hearing in August 2007, which is the hearing at issue in this appeal. At the time of the hearing, Cannon was 53 years old, and had served more than 19 years in prison.
The Board noted at the 2007 hearing that Cannon had no juvenile record and no adult criminal record other than commitment offense. The only disciplinary action he received during his incarceration was a single “128” (a custodial counseling chrono) in 1995 for smoking in the dorm. He consistently received exceptional work reports from his prison work assignments, and he obtained his GED in 1991 and a certificate for 6,000 hours in small engine repair in 1996. He also consistently attended Alcoholics Anonymous (AA) and other self-help programs, many of which addressed anger management.
The Board also noted that the most recent psychological evaluations of Cannon, done in 2003 and 2004, concluded that Cannon presented low risk of anti-social criminal behavior. The 2004 evaluation was a two-page document in which the psychologist, Dr. E.W. Hewchuk, stated that Cannon “presented as a mature, responsible, and sensitive individual” who “merits a low-risk status both within an institutional context and outside in a community setting.” The psychologist who conducted the 2003 evaluation, Dr. Melvin Macomber, stated that he agreed with the more detailed evaluation conducted in 2001 by Dr. M. Carswell. Dr. Carswell noted that Cannon had taken advantage of every self-help opportunity available to him, including completing a course of individual therapy (which Dr. Carswell said was “very unusual”), that he “recovered from his depression [which had caused him to become suicidal] with a commendable effort,” and that he “show[ed] a level of maturity and insight into the crime that is unusual.” In agreeing with Dr. Carswell’s assessment that Cannon’s violence potential if released to the community was no greater than the average citizen, Dr. Macomber stated, “The only risk factor in this case at the time of the offense was severe [depression] and drug dependence. Both of these problems are thoroughly resolved and do not pose a risk factor at this time.”
Although the Board did not specifically address Dr. Carswell’s evaluation during the 2007 hearing, the 2001 evaluation was part of the record before the Board at that hearing, and the Board looked to the 2001 evaluation when summarizing Cannon’s social and personal history.
In addition to acknowledging Cannon’s psychological evaluations and conduct in prison, the Board questioned Cannon about his drug use, the commitment offense, his self-help programs, and his plans if he were released from prison.
Cannon admitted that he had smoked marijuana during his childhood, but he said he used no other drugs until 1985. In 1985, he was working the graveyard shift at the post office, and started to hang out with co-workers who drank and used cocaine. He tried cocaine and soon was hooked on it. Although he continued to work, his work performance suffered. His addiction also caused financial problems leading to the loss of his house. When his family confronted him about the changes they saw in him after he started using cocaine, he tried to stop using it, but he was unable to stop. He became angry at himself, because it was his choice to use cocaine.
He told the Board that on the night before the commitment offense he was supposed to go to work, but instead he went out with his cocaine-using friends from work. Later, he needed someone to talk to about what he was doing with his life, so he went to his aunt’s house for guidance. Asked what went wrong that morning, Cannon said, “After I was there for, I don’t know how long, I think I just felt in more despair, and I tried to kill myself, and she tried to intervene, and once I realized that I had hurt her, I must have panicked because I can’t believe until today that I stabbed her that many times or caused her that much suffering.” The presiding commissioner asked him about what changed that night to make him focus on his aunt, if he wanted to kill himself. Cannon responded, “I did not focus on her. She was attempting to prevent me from hurting myself, and she’s the one who got stuck, and when I realized that I hurt her, I must have panicked and that anger that I had inside of me from what I have done, it just turned on her.” He told the Board, “I’m not a killer, but I did this here. That’s totally out of character for me, and she didn’t deserve it.”
The Board questioned Cannon about the self-help programs he participated in while in prison, and asked why he was so focused on anger management. Cannon responded that he believed at the time of the offense he had a lot of anger built up inside him but he was not aware of it, and that all of that anger was displaced on his aunt. He said that he participated in programs to help him understand where all of that anger came from. When asked about where he thought the anger came from, Cannon said he thought it came from losing both of his parents early in life, blaming other people for his loss, and not taking responsibility for his own actions. He told the Board about techniques he learned from his self-help programs to help him identify and manage his anger and stress, and how he had applied those techniques while in prison.
Cannon also wrote a report, which was read into the record at the 2007 hearing, discussing how his childhood losses, and his lack of awareness of how they affected him, contributed to his anger later in life.
Cannon also answered questions about his participation in AA. He told the Board that he had been attending AA since he was incarcerated, although he was unable to identify a specific “date of sobriety” when asked (he said it was in July 1986, after he was incarcerated). He was asked to identify the most difficult step for him to achieve (he said it was making amends, because he was so ashamed and did not know how his family would accept him after what he had done) and what he thought was the most important step (he said it was admitting that he had a problem). He said that he was going to AA meetings every month and was working the steps “as best [he] can,” but he did not have a sponsor in prison because most inmates who went to AA did so only to get chronos.
Finally, Cannon answered questions about his plans if he were released from prison. He said he planned to live with his wife, whom he married in 1994. He had a standing job offer to work in his cousin’s automotive repair shop, and he had an offer from a man who attended church with his wife to be his AA sponsor. He also had a letter from a psychiatrist, who offered to see him for therapy if he were granted parole.
After an 18 minute recess, the Board returned and announced its decision: it found that Cannon was not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The Board based its decision on its findings that the commitment offense was carried out in an especially cruel manner, the offense was carried out dispassionately, and the offense was carried out in callous disregard for human suffering. Although the Board noted that Cannon had “an exemplary record” during his time in prison, it expressed “concerns” regarding “the depth of [his] understanding of what [he] went through and the amount of work [he] did through AA and... through the church that [he had] been attending and [his] work in the Bible.” The Board asked for a new psychological evaluation to look into how much work Cannon had done with regard to his insight and understanding as to why he committed the crime.
Cannon petitioned for a writ of habeas corpus in the superior court, arguing there was no evidence that he currently posed an unreasonable risk to public safety if he were released from prison. The superior court agreed, and ordered the Board to vacate its decision denying parole and to conduct a new parole hearing in accordance with due process within 90 days of the court’s decision.
We note that the superior court’s original order granting the petition referred to the date of the parole hearing as August 27, 2008, rather than August 27, 2007, and referred to a psychological evaluation of Cannon that took place in 2008, after the Board denied parole. In response to a request for reconsideration, the court amended its order nunc pro tunc to correct the date and replace the references to the 2008 evaluation with references to the 2003 and 2004 evaluations, which were before the Board at the time of the hearing.
DISCUSSION
We begin our discussion with an issue raised by Cannon in his respondent’s brief. He argues that the Board’s appeal should be dismissed because the notice of appeal was from the superior court’s original order, which the court subsequently amended nunc pro tunc to correct an erroneous date and to replace references to a 2008 psychological evaluation (which was not before the Board at the time of the hearing) with references to the 2003 and 2004 psychological evaluations (which were before the Board). He does not, however, assert that he was misled or prejudiced by the Board’s notice of appeal. In light of the lack of prejudice to Cannon, and the duty to liberally construe a notice of appeal in favor of its sufficiency (Cal. Rules of Court, rule 8.100(a)(2)), we construe the Board’s notice of appeal to include the amended order. (See, e.g., ECC Construction, Inc. v. Oak Park Calabasas Homeowners Assn. (2004) 122 Cal.App.4th 994, 1003, fn. 5.)
Finding the Board’s notice of appeal to be sufficient, we now turn to the merits of the appeal -- the Board’s contention that its decision to deny parole must be upheld.
Under Penal Code section 3041, “‘the Board must grant parole unless it determines that public safety requires a lengthier period of incarceration for the individual because of the gravity of the offense underlying the conviction. (Pen. Code, § 3041, subd. (b).) And as set forth in the governing regulations, the Board must set a parole date for a prisoner unless it finds, in the exercise of its judgment after considering the circumstances enumerated in section 2402 of the regulations, that the prisoner is unsuitable for parole. Accordingly, parole applicants in this state have an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation.’ [Citations.]” (Lawrence, supra, 44 Cal.4th at p. 1204.)
Further undesignated statutory references are to the Penal Code, and undesignated references to regulations are to title 15 of the California Code of Regulations.
The Supreme Court has emphasized that “the fundamental consideration in parole decisions is public safety,” and that “the core determination of ‘public safety’ under the statute and corresponding regulations involves an assessment of an inmate’s current dangerousness.... [A] parole release decision authorizes the Board... 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.]” (Lawrence, supra, 44 Cal.4th at pp. 1205-1206.) Thus, “although the Board... may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner’s pre- or 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 commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1214.) But “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.” (Id. at p. 1219.)
Although the Board has extraordinary discretion in parole matters (In re Rosenkrantz (2002) 29 Cal.4th 616, 655), and a court’s review of parole decisions is highly deferential (id. at p. 657), the Board’s decision must have a basis in fact and be supported by evidence in the record; otherwise, the Board’s denial of parole would constitute an arbitrary deprivation of an inmate’s due process rights. (Id. at p. 658; see also Lawrence, supra, 44 Cal.4th at pp. 1204-1205.) Therefore, in reviewing a Board’s parole decision, “a court must consider whether ‘some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation. If the decision’s consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner’s petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law.’ [Citation.]” (Lawrence, at p. 1210, italics omitted.)
In the present case, the Board found Cannon unsuitable for parole based upon his lack of insight into the commitment offense and the aggravated circumstances of the commitment offense. The Board argues on appeal that its finding that Cannon lacked insight into the commitment offense was supported by some evidence because, at the hearing, Cannon was unable to effectively articulate why he stabbed his aunt 11 times and expressed disbelief that he had stabbed her 11 times. The Board also argues that it had legitimate concerns about the depth of Cannon’s work in the self-help programs and the insight he gained through those programs because Cannon did not have an AA sponsor in prison and had a “tendency to talk about the drugs he was using when he committed the offense, rather than discussing his role in committing the crime.” Finally, the Board argues that the aggravated circumstances of the commitment offense continue to indicate that he is a threat to public safety because he lacks adequate insight into the crime. The record does not support any of the Board’s arguments.
The statement the Board relies upon to show that Cannon lacked insight into the commitment offense, when read in context and in conjunction with Cannon’s other statements about the crime, does not support the Board’s finding. That statement -- “I tried to kill myself, and she tried to intervene, and once I realized that I had hurt her, I must have panicked because I can’t believe until today that I stabbed her that many times or caused her that much suffering” -- was made in response to a question asking Cannon about what went wrong, if his purpose in going to see his aunt was to get guidance from her. He later gave more insightful explanations about why he committed the crime: he explained that he now realizes that he had a lot of anger inside of him (which he believed resulted from the loss of his parents, being uprooted from his siblings, blaming others for his problems, and not taking responsibility for his own actions), and that he displaced all that anger onto his aunt when she intervened to prevent him from killing himself. His “disbelief” is not that he did not believe he stabbed his aunt multiple times, but that, as he later explained, his stabbing of his aunt was so “totally out of character” for him. And given his lack of any criminal record other than the commitment offense and his nearly perfect disciplinary record during his 19-year incarceration, his “disbelief” appears to be well founded.
To the extent the Board relies upon the 2003 psychological evaluation to support its finding that Cannon lacked insight -- because the evaluator (Dr. Macomber) noted that Cannon was unclear about some of the specific details of the crime and had a difficult time discussing those details, and the evaluator did not state that Cannon had gained insight into the crime -- its reliance is misplaced. Dr. Macomber specifically stated that the 2001 evaluation by Dr. Carswell was “very current and valid” and that he (Dr. Macomber) “does not disagree with that prior evaluation at any point.” (Italics added.) And Dr. Carswell stated in his 2001 evaluation that Cannon “displays quite a bit of insight into his commitment offense and his own emotional immaturity at that time” and that “[h]e shows a level of maturity and insight into the crime that is unusual.”
With respect to the Board’s “concerns” regarding the depth of Cannon’s work in the self-help programs, we note that the “concerns” the Board expressed in its decision had to do with how much work Cannon had done on the 12 steps of AA and the depth of his work with the Bible or in church. There is no evidence in the record to support the Board’s concern about the depth of Cannon’s work in AA. In fact, the evidence shows that Cannon actively participated in AA, and a chrono he received upon completion of a 12-step program in 2002 stated that he “has shown the ability to understand and comprehend all aspects of the 12-steps through his self-improvement and techniques and has consistently demonstrated the willingness to cooperate in this... environment.” Indeed, as stated in his 2003 psychological evaluation, his problem with drug dependence was “thoroughly resolved and [did] not pose a risk factor.”
The fact that Cannon did not have an AA sponsor in prison is not evidence that he failed to adequately participate in AA, especially in light of his explanation for his lack of a sponsor -- he explained that the inmates who go to AA generally go just to get chronos, and he did not want to be around that type of participant -- and the fact that he had arranged for a sponsor outside of prison if he were released. Moreover, to the extent the Board’s concern about the adequacy of Cannon’s participation in AA is based upon his purported “tendency to talk about the drugs he was using when he committed the offense, rather than discussing his role in committing the crime,” the record shows no such tendency. In fact, Cannon’s discussions about his drug use focused on how his addiction caused most of the stress that led him to contemplate suicide and to get angry at himself. He did not at any time try to excuse his crime by blaming his drug use. Indeed, when asked whether he blamed alcohol or cocaine for his crime, Cannon said, “I don’t blame anything for that crime.... [¶] I blame me for that crime.”
Finally, the Board’s “concern” about Cannon’s work with the Bible or in church simply cannot support a finding that Cannon currently presented a risk to public safety. The issue of Cannon’s participation in church came up when he said he always includes his aunt in his prayers. The presiding commissioner asked if he went to church on a regular basis, and Cannon said he did not go to church in prison because he did not like the activities that went on there. Later, that same commissioner asked Cannon if he read the Bible, and Cannon said he read it every night. The commissioner then asked if he had a favorite book in the Bible, and Cannon said, “Not offhand, no.” These discussions have no relevance to Cannon’s current dangerousness.
In light of the absence of any evidence to support the Board’s finding that Cannon lacked insight into the commitment offense, the Board’s argument that the aggravated circumstances of the offense supports its decision to deny parole fails. As the Supreme Court explained in In re Shaputis (2008) 44 Cal.4th 1241, the aggravated circumstances of a commitment offense may be sufficient to support a finding that an inmate continues to present a threat to public safety if the inmate has failed to take responsibility for the offense or has failed to gain insight into his or her previous violent behavior. But in this case, Cannon has consistently taken responsibility for killing his aunt, and, as discussed above, he has spent years participating in programs to understand why he did it and to learn how to prevent anything like it from happening again. As one of the psychological evaluators stated, Cannon “shows a level of maturity and insight into the crime that is unusual.” In short, In re Shaputis does not assist the Board here. Because the record does not show anything in Cannon’s pre- or post-incarceration history, or his current demeanor or mental state, that “indicates that the implications regarding [Cannon’s] dangerousness that derive from his... commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety” (Lawrence, supra, 44 Cal.4th at p. 1214), we conclude that the aggravated nature of the commitment offense does not support the Board’s denial of parole.
DISPOSITION
The judgment of the superior court is affirmed. The Board shall conduct a new parole hearing within 90 days of issuance of the remittitur.
We concur:, EPSTEIN, P. J., SUZUKAWA, J.