Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BH005786 Peter P. Espinoza, Judge.
Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Assistant Attorney General, and Linnea D. Piazza, Deputy Attorney General, for Appellant.
Bruce Zucker and Randy S. Kravis for Respondent.
MANELLA, J.
Governor Arnold Schwarzenegger appeals from the superior court’s order granting petitioner Christopher Carroll’s petition for habeas corpus and vacating the Governor’s reversal of the Board of Parole Hearing’s (Board) determination that he was suitable for parole. We find that “some evidence” supports the Governor’s decision that petitioner is currently dangerous and therefore is unsuitable for parole. (In re Lawrence (2008) 44 Cal.4th 1181, 1191 (Lawrence) [“the standard of review properly is characterized as whether ‘some evidence’ supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous”].) We therefore reverse the trial court’s order granting Carroll’s petition for habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner was born in 1960 and was 19 years old at the time he murdered Edward Stell. Petitioner pled guilty to first degree murder with a firearm enhancement, and has served 30 years in prison.
1. Plea, Sentence, and Probation Report
According to the probation report generated at the time of petitioner’s plea, in 1976, petitioner had been investigated for the sale of a controlled substance. Following that investigation, petitioner was placed on informal supervision. In 1978, petitioner was investigated for receiving stolen property, but no conviction resulted from that arrest.
The probation report summarized the events surrounding petitioner’s crime. On November 17, 1979, petitioner shot Stell. A witness indicated that petitioner held Stell by his waistband and asked for his wallet. Stell pleaded with petitioner, saying, “‘[p]lease don’t do it... please don’t do it.’” According to the witness, Stell tried to flee after initial gunfire, but was hit by additional gunshots. Further, according to a witness, petitioner removed Stell’s wallet from his pocket.
The probation officer reported that petitioner planned the robbery in advance, and petitioner fired the gun after Stell refused to give petitioner his wallet. According to the report, petitioner fired four times and divided the proceeds of the robbery with other participants including his sister. The investigating officer concluded petitioner shot Stell as he tried to flee.
After he was arrested, petitioner first denied knowledge of the killing. Petitioner then admitted that he planned to rob Stell and that when Stell reached into his back pocket, petitioner pulled the hammer of the gun, which accidentally discharged. Subsequently, petitioner acknowledged firing at least five rounds. But in another interview, petitioner denied that he fired the shots, indicating only that “shots were fired.” Petitioner also told officers that he killed Stell “‘by accident’” and received $50 or $55 after the robbery. Petitioner’s mother described petitioner as “high” at the time of the crime, and petitioner acknowledged using marijuana.
On August 18, 1980, petitioner pled guilty to first degree murder. Petitioner also admitted a firearm use enhancement. He was sentenced to state prison for 27 years to life.
2. Conduct During Incarceration
Petitioner received two form 115 “disciplinaries, ” for tardiness and for drug trafficking. He also received six form 128 “counseling chronos” for theft, failure to report to a job assignment, possession of unauthorized money, disrespect of staff, failing to follow procedures, and disrupting count. Since 1995 petitioner committed no misconduct.
Petitioner disputed the “disciplinary” for drug trafficking.
A form 115 violation is for misconduct that “‘is believed to be a violation of law or is not minor in nature, ’” and a form 128 custodial counseling chrono is for minor misconduct. (In re Palermo (2009) 171 Cal.App.4th 1096, 1105, fn. 1.)
Petitioner completed 12 years of education and received his General Equivalency Diploma (GED). After receiving his GED, he took community college courses. He completed a vocational dry-cleaning program in 1994. He participated in Alcoholics Anonymous and Narcotics Anonymous groups. He successfully completed a life skills program and served as the chair of the men’s advisory council. Petitioner also completed an anger management class.
3. 2007 Parole Board Hearing and Decision
In 2007, the Board found petitioner was unsuitable for parole. At that time petitioner described the murder as follows: “I tried to scare [Stell] into giving the money to them.... [Stell] started moving around because he started arguing with me, and I pulled the gun out to scare him. And when I pulled the hammer back, the gun went off.” Petitioner testified the gun went off one time; he “pulled that hammer back and that gun went off and shot the victim.” The Board was concerned about petitioner’s credibility, finding his answers left it with “a suspicion about [his] credibility....” On denying parole, the Board also relied on the cruel and calculated nature of the offense and petitioner’s trivial motive in carrying out the offense. The Board additionally summarized his institutional conduct while incarcerated.
4. June 17, 2008 Psychological Assessment
On June 17, 2008, Richard Starrett, Ph.D. evaluated petitioner. Dr. Starrett concluded petitioner had no serious mental health problems. Petitioner satisfied the criteria for substance abuse and antisocial personality disorder only by history. Dr. Starrett summarized the prior evaluations of petitioner’s potential for violence: In 2005, it was no more than the average citizen, in 2001 it was no more than the average citizen; in 1998, 1995, and 1990, it was below average relative to the inmate population; in 1992, it was significantly below average for persons incarcerated for life; and in 1984, it was less than the average San Quentin inmate.
With respect to petitioner’s insight into his commitment offense, Dr. Starrett concluded: “There continues to be a discrepancy between the inmate’s account of the life crime and the file account, which is not reconcilable, and leaves us with a certain level of uncertainty on this factor. The inmate has had a good response to treatment. He does not appear to have a negative attitude, he does not have any active mental health symptoms, and is not impulsive.”
In his 2008 assessment, Dr. Starrett noted that petitioner scored in the moderate range of psychopathy, a trait linked to episodes of repetitive aggression and criminality. Dr. Starrett assessed petitioner in the moderate to low range for propensity of violence when compared to similar inmates. Dr. Starrett opined that petitioner’s recidivism rate was in the medium range. Dr. Starrett explained that the elevated rating for recidivism was based in part on factors occurring prior to incarceration such as defendant’s prior arrest, his age at the time of the arrest, his having been suspended from school, his use of alcohol and drugs, and the instant offense, as well as his disciplinary citations during incarceration. Dr. Starrett further explained that historical factors cannot be lessened in determining the overall score. According to Dr. Starrett, “[b]ased on early history, some individuals will never obtain a risk estimate of ‘low.’”
Dr. Starrett summarized his conclusions as follows: “The inmate’s overall propensity for future violence is in the low to moderate range when compared to similar inmates.” In reaching this conclusion, Dr. Starrett relied on petitioner’s social history at the time of the offense and the discrepancy between his version and the version of other witnesses as factors that elevated his potential for violence. Dr. Starrett also relied on the fact that petitioner was not a “true psychopath” and responded favorably to treatment as factors that decreased his potential for violence. Dr. Starrett found petitioner to be in the moderate range for psychopathy, and assessed petitioner’s likelihood to violate parole to be in the “medium range.”
5. Letters of Support Provided to 2008 Parole Board
The Board summarized numerous letters sent in support of petitioner’s release. First to Serve Inc. Outreach Ministries indicated it would accept petitioner into its structured program for substance abuse. Petitioner’s ex-wife, older brother, and older sister wrote letters of support. Petitioner had a job offer from Buckleroy Plumbing and a letter from Los Angeles Unified School District indicating that it would assist him in gaining necessary skills.
6. 2008 Parole Board Hearing
On July 31, 2008, the Board again considered petitioner’s suitability for parole and recommended parole. Petitioner testified extensively at the hearing. He described the crime for which he was incarcerated as follows: Petitioner accompanied his sister Julie, even though he learned that she and her friends intended to rob Stell. Petitioner did not believe anything serious would happen and asked Julie to give him the gun. Petitioner explained: “Mr. St[ell] looked around... and I got nervous, too, and so I stepped out, because he looked like he was going for something or going to do something.... I pulled out the gun, which was a broken gun, and I pulled the hammer back. When I pulled the hammer back, the gun discharged. When the gun discharged, it shot once.” Petitioner continued: “I was the one who tried to freeze the situation, and I pulled the gun out and it discharged. I never meant to shoot.” According to Petitioner, he shot the gun once, dropped it, and fled. Julie picked up the gun. Petitioner acknowledged that he previously had admitted to firing two shots, but currently believed that he shot only once.
Petitioner first referred to a gun “that I used to carry for [Julie].” Later, he indicated he acquired the gun from Julie, telling her to “[g]ive me the gun, you don’t need that gun.”
Petitioner stated, “let me just be clear, it was my fault. I was the one who had the gun. I take responsibility... I was the one who had the gun. I was the one that tried to freeze the situation, and I pulled the gun out and it discharged. I never meant to shoot. I never meant to shoot Mr. St[ell]. I never meant to shoot him. I tried to scare him; I wanted to freeze the situation because I was out of my element.” Speaking of his intentions, petitioner stated, “[m]y intentions for even going there from the beginning was not to rob Mr. St[ell], let alone shoot him and take his life, but that’s what happened... and I take responsibility for it.” Petitioner later stated, “I know that it was my fault [that] Mr. St[ell] lost his life. I was the one that had the gun, no business with it. It do[es]n’t matter whether I was scared or whatever, I pulled the gun.”
Petitioner admitted that at the time of the commitment offense he was addicted to drugs. By 2008, petitioner had been sober for 17 years. Petitioner explained that he recognized he was a recovering addict. It had been difficult to admit being an addict, but after participating in self-help programs for several years, he was able to understand his substance abuse. He recognized that his continued participation in Narcotics Anonymous was essential and described how the 12-step program assisted him in his daily life.
When the deputy district attorney asked petitioner if he acted in self-defense petitioner responded as follows: “I pulled that gun because I was scared and I thought it was out of control, the situation was out of control. I just – like a movie, I thought if you pull out the gun, if I pull that trigger back, everybody was going to stop. When I pulled the hammer back, I was so nervous. I believe in my heart now that I had my finger on the trigger, because I just reached back and I pulled the hammer back, and when it went off I just dropped it. I was shocked, and I ran off. But in my mind I knew, I knew something bad happened.”
Petitioner described his history, including that he dropped out of high school and that on one occasion, he told people his brother was selling angel dust. If released, petitioner planned to live with his wife, and three of his family members had offered him housing if necessary. The Board reviewed petitioner’s parole plans and letters of support.
7. 2008 Parole Board’s Decision
On July 31, 2008, the Board found petitioner suitable for parole and concluded that he did not pose an unreasonable risk of danger. The Board relied on evidence that petitioner did not have a juvenile record, that he demonstrated an enhanced ability to function while incarcerated, that he had enrolled in self-help programs and vocational programs, and that he had developed realistic plans for parole. The Board concluded that petitioner demonstrated remorse, which the Board considered “sincere” and “not superficial.” Although the Board recognized that not all of the factors in Dr. Starrett’s July 2008 psychological evaluation were favorable, it concluded the unfavorable elements primarily concerned lifestyle factors at the time petitioner committed the crime. In finding petitioner suitable for parole, the Board relied on evidence in Dr. Starrett’s report indicating that petitioner is not a psychopath. The Board also noted that four prior reports had indicated that petitioner’s propensity for violence was below average for the inmate population. According to the Board, petitioner had done everything asked of him, had worked hard, and was remorseful.
8. Governor Schwarzenegger’s Reversal of the Board’s Decision
On December 18, 2008, Governor Schwarzenegger reversed the Board’s decision. The Governor based his reversal on three grounds: (1) Petitioner’s offense “was especially atrocious because his professed motive for participating in the crime – to protect his sister from harm – was extremely trivial in relation to the magnitude of the crime he committed. Mr. Carroll held his victim by the waistband, ignored his victim’s pleas, and then shot Mr. Stell in the head.” (2) Petitioner’s changing version of the crime indicates “that he still lacks full insight into the circumstances of the crime.” (3) Petitioner’s 2008 mental health evaluation rated his level of psychopathy as moderate, his potential for further violence as moderate to low and his general recidivism risk as medium. The Governor concluded that petitioner’s “release from prison at this time would pose an unreasonable risk to public safety.”
The Governor made several findings in support of his conclusion that petitioner lacked insight into the crime. According to the Governor, “[w]hen he was arrested, Mr. Carroll denied any involvement in the homicide, saying that he was just ‘riding around.’ Mr. Carroll later said that when he was robbing Mr. Stell the gun went off accidentally. He told his correctional counselors, most recently in 2001, that he did ‘not know if the victim was hit’ by the round that he fired. He said that the discharge of the weapon frightened him so much that he dropped the gun and fled. However, he told the Board on several occasions that he saw his victim fall. The 2007 Board, in denying Mr. Carroll’s parole, observed that some of his answers ‘kind of went around the bush.’ The Board indicated it was left with a ‘real uncomfortable feeling’ about whether or not Mr. Carroll was being truthful with the panel. Mr. Carroll subsequently told the 2008 Board that it looked like Mr. Stell was ‘going for something.’ Mr. Carroll said he drew his gun, pulled the hammer back, and the gun discharged. He said, ‘I believe in my heart now that I had my finger on the trigger....’”
In assessing petitioner’s suitability for parole, the Governor considered factors supporting suitability for parole including petitioner’s efforts to enhance his ability to function within the law, his educational pursuits including obtaining a GED, his vocational training in dry-cleaning, his work while incarcerated, and his participation in several self-help and therapy activities. The Governor also recognized that petitioner maintained solid relationships with friends and family and had plans to reside with his wife following release. However, after acknowledging petitioner’s “creditable gains in prison” the Governor concluded that the factors militated against his release because he “would pose an unreasonable risk of danger to society at this time.”
9. Trial Court’s Order Granting the Petition for Writ of Habeas Corpus
The trial court independently reviewed the record and concluded that the “record does not contain ‘some evidence’ to support the determination that... [p]etitioner currently presents an unreasonable risk of danger to society and is, therefore, not suitable for release on parole.” The court concluded that “although the Governor’s findings regarding the facts of the offense are supported by evidence in the record, absent a rational nexus between those facts and current dangerousness, those findings do not provide some evidence of the [p]etitioner’s unsuitability.” Notwithstanding inconsistencies in the story of how the crime occurred, petitioner admitted “the incident was his fault because he went to meet with the victim that night intending to commit a crime and arming himself should the use of a gun be necessary.” The court pointed out that the Board found petitioner’s remorse to be sincere. “The small inconsistencies cited by the Governor, when viewed in light of the thirty-years which have passed since the crime and the [p]etitioner’s general insight into his criminal behavior does not support a finding that [p]etitioner remains dangerous[].” The single statement by the psychologist describing uncertainty about petitioner because his version of events differ from those in file “does not support a finding that [p]etitioner poses an unreasonable risk of danger to society due to lack of insight.” The psychologist’s report indicating his potential for violence as moderate and general recidivism as medium “does not equate to some evidence that [p]etitioner is currently dangerous.”
The Governor appealed from the superior court’s decision. By order dated December 18, 2009, this court granted the Governor’s petition for a writ of supersedeas and stayed enforcement of the trial court’s order until final determination of this appeal.
DISCUSSION
The Attorney General argues some evidence supports the Governor’s decision that petitioner presented a current risk of danger and was unsuitable for parole. Petitioner argues there was no evidence supporting the Governor’s decision and therefore the superior court’s order granting his petition for habeas corpus must be affirmed.
The Governor also argues that the proper remedy for finding a due process violation would be to remand the matter to the Governor to proceed in accordance with due process. Because we find some evidence supports the Governor’s decision, we need not consider this contention.
1. Factors Governing Suitability for Parole and Standards of Judicial Review
Penal Code section 3041, subdivision (b) provides in pertinent part: “The panel or the Board, sitting en banc, 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, and that a parole date, therefore, cannot be fixed at this meeting.” This subdivision requires that a parole release date “‘must be set “unless [the Board] 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....”’” (In re Shaputis (2008) 44 Cal.4th 1241, 1256.)
Title 15, section 2402 of the California Code of Regulations (§ 2402) codifies the factors to consider in assessing suitability for parole of an inmate who committed a murder. In reviewing the decision of the Board regarding an inmate convicted of murder, the Governor considers the same factors. (Cal. Const., art. V, § 8, subd. (b).) The decision whether to parole an inmate requires an assessment of the inmate’s current dangerousness. (Lawrence, supra, 44 Cal.4th at p. 1205.) “[T]he Governor has discretion to be ‘more stringent or cautious’ in determining whether a defendant poses an unreasonable risk to public safety.” (In re Shaputis, supra, 44 Cal.4th at p. 1258.) “‘[T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor....’” (Id. at p. 1260.) “Our deferential standard of review requires us to credit the Governor’s findings if they are supported by a modicum of evidence....” (Lawrence, supra, 44 Cal.4th at p. 1226.)
Section 2402 provides:
Article V, section 8, subdivision (b) of the California Constitution provides: “No decision of the parole authority of this State with respect to the granting, denial, revocation, or suspension of parole of a person sentenced to an indeterminate term upon conviction of murder shall become effective for a period of 30 days, during which the Governor may review the decision subject to procedures provided by statute. The Governor may only affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider. The Governor shall report to the Legislature each parole decision affirmed, modified, or reversed, stating the pertinent facts and reasons for the action.”
The Supreme Court recently has clarified the standard for judicial review of a decision regarding suitability for parole. We must determine whether “‘some evidence’ supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous.” (Lawrence, supra, 44 Cal.4th at p. 1191.) A particularly egregious commitment offense will not always provide sufficient evidence to support the decision. (Ibid.) Where evidence of rehabilitation and suitability for parole is overwhelming and “the only evidence related to unsuitability is the gravity of the commitment offense, and that offense is both temporally remote and mitigated by circumstances indicating the conduct is unlikely to recur, the immutable circumstances that the commitment offense involved aggravated conduct does not provide ‘some evidence’ inevitably supporting the ultimate decision that the inmate remains a threat to public safety.” (Ibid.) “‘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....’” (Id. at p. 1210, italics omitted.)
Applying these principles, in Lawrence, the high court held that no evidence supported the Governor’s decision finding an inmate, who had been convicted of the first degree murder of her lover’s wife, unsuitable for parole where the Governor’s conclusion that the inmate lacked sufficient remorse was unsupported, the Governor relied on “stale” psychological reports, and the inmate’s minimal disciplinary record did not support a finding that she posed a risk to public safety. (Lawrence, supra, 44 Cal.4th at pp. 1223-1224, 1227.) In contrast, in In re Shaputis, supra, 44 Cal.4th 1241, a companion case to Lawrence, the high court found “‘some evidence’” in the record supported the Governor’s conclusion that the petitioner remained a threat to public safety, where he failed to take responsibility for the murder of his wife and, despite years of rehabilitative programming and participation in substance abuse programs, “failed to gain insight into his previous violent behavior....” (Id. at p. 1246.)
Where the superior court grants relief on a petition for habeas corpus without an evidentiary hearing, “the question presented on appeal is a question of law, which the appellate court reviews de novo.” (In re Lazor (2009) 172 Cal.App.4th 1185, 1192.) The standard of review “is whether there exists ‘some evidence’ that an inmate poses a current threat to public safety....” (In re Shaputis, supra, 44 Cal.4th at p. 1254.)
2. Analysis
As we explain, we conclude that the Governor’s reversal of the Board’s suitability finding is supported by some evidence in the record. We discuss each reason relied upon by the Governor separately.
a. Petitioner’s Lack of Insight into the Commitment Offense
The Governor found that petitioner’s changing version of the crime indicated “that he still lacks full insight into the circumstances of the crime.” Evidence that an inmate has failed to gain insight into his conduct is indicative of his current attitude to the crime and is a factor to consider in determining suitability for parole. (In re Shaputis, supra, 44 Cal.4th at p. 1246; Cal. Code Regs., tit. 15, § 2402, subds. (b) [inmate’s present attitude toward crime a relevant consideration], (d)(3) [petitioner’s understanding of nature and magnitude of offense a factor to consider in determining suitability].) Some evidence supports the Governor’s conclusion that petitioner has not gained insight into his crime.
First, the Governor’s conclusion that petitioner has given differing descriptions of his conduct, some of which minimize his participation in the crime, is supported by the record. As quoted by the Governor, at the 2008 hearing, petitioner said, “I believe in my heart now that I had my finger on the trigger.” However, at the same hearing petitioner gave the following contradictory testimony: “‘Mr. St[ell] looked around... and I got nervous, too, and so I stepped out, because he looked like he was going for something or going to do something... I pulled out the gun, which was a broken gun, and I pulled the hammer back. When I pulled the hammer back, the gun discharged. When the gun discharged, it shot once.’” Petitioner continued: “‘I was the one [who] tried to freeze the situation, and I pulled the gun out and it discharged. I never meant to shoot.” This version also conflicts with petitioner’s statement at the time of the crime that he shot multiple times and with that of other witnesses who heard multiple shots. Petitioner’s changing version supports the Governor’s conclusion that he failed to acknowledge his own role in shooting Stell. Petitioner’s minimization of his culpability by indicating that the “gun discharged, it shot once” undermines his claim that he accepted responsibility and was remorseful. It supported the Governor’s reversal of the Board’s finding of suitability. (In re Shaputis, supra, 44 Cal.4th at p. 1252 [inmate’s failure to recognize history of domestic violence demonstrated lack understanding why he murdered his wife]; In re Rozzo (2009) 172 Cal.App.4th 40, 61[notwithstanding inmate’s expressions of remorse, there was evidence he lacked insight into reasons for participating in murder]; In re Lazor, supra, 172 Cal.App.4th at p. 1202 [“An inmate’s lack of insight into, or minimizing of responsibility for, previous criminality, despite professing some responsibility, is a relevant consideration”]; In re Smith (2009) 171 Cal.App.4th 1631, 1638 [Governor is not required to accept inmate’s version of commitment offense].)
The preliminary hearing transcript is not included in our record. At the hearing before the Board, the deputy district attorney represented that a witness testified she heard two shots. Petitioner acknowledged that a witness testified she heard two shots, but claimed the witness was lying.
Citing In re Palermo, supra, 171 Cal.App.4th 1096, in which the court reversed a finding by the Board that an inmate was unsuitable for parole, petitioner argues he “has shown ‘signs of remorse’ by ‘indicating that he understands the nature and magnitude of the offense.’ During his 2008 Board hearing, he clearly admitted to being the shooter and killing Mr. Stell. He stated, ‘But let me just be clear, it was my fault. I was the one who had the gun. I take responsibility.’” Petitioner further argues that his “version of events does not materially differ from the ‘official version’ in any manner that would indicate a lack of understanding or lack of insight into the commission of the commitment offense.” We disagree. Petitioner’s acceptance of responsibility was coupled with an explanation that was contradicted by other evidence. The existence of multiple shots -- testified to by an uninvolved witness and previously acknowledged by petitioner himself – was irreconcilable with petitioner’s description of a gun that “only went off once” and irreconcilable with petitioner’s explanation of an accidental discharge. In essence, petitioner’s argument asks us to reweigh the evidence before the Governor – something we may not do under the applicable deferential standard of review. (In re Criscione (2009) 173 Cal.App.4th 60, 74 [under appropriate standard of judicial review court may not reweigh evidence]; In re Lazor, supra, 172 Cal.App.4th at p. 1198 [same].) The Governor’s conclusion that petitioner lacked insight was supported by some evidence and was probative of current dangerousness. (In re Shaputis, supra, 44 Cal.4th at p. 1261, fn. 20 [petitioner’s lack of insight establish that circumstances of crime continues to be probative of current dangerousness]; In re Smith, supra, 171 Cal.App.4th at p. 1639 [lack of insight probative of continued dangerousness even where inmate did not have a violent background]; but see In re Moses (2010) 182 Cal.App.4th 1279, 1309 [discrepancies between the inmate’s version of events and other evidence unrelated to finding of current dangerousness]; In re Calderon (May 12, 2010, A125831) ____Cal.App.4th ___ [2010 Cal.App. LEXIS 669] [Governor’s finding inmate lacked insight into effects of past substance abuse unsupported by record].)
b. Petitioner’s 2008 Psychological Report Indicating a Heightened Risk of Recidivism
Petitioner’s 2008 mental health evaluation rated his level of psychopathy as moderate, his potential for further violence as moderate to low and his general recidivism risk as medium. From this evidence the Governor concluded that petitioner’s release “from prison at this time would pose an unreasonable risk to public safety.”
The Governor’s conclusion is supported by Dr. Starrett’s 2008 psychological assessment. The Board recognized that there were unfavorable aspects to Dr. Starrett’s report but concluded that the finding petitioner was not a “true psychopath” minimized the risk of recidivism. The Governor was not required to similarly minimize the risk of recidivism predicted in Dr. Starrett’s report. (In re Shaputis, supra, 44 Cal.4th at p. 1258[“[T]he Governor’s interpretation of a documentary record is entitled to deference”]; In re Tripp (2007) 150 Cal.App.4th 306, 313 [“So long as the Governor’s interpretation of a document is reasonable, it is not for us to say that he should have adopted another interpretation, though equally reasonable.”]; In re Criscione, supra, 173 Cal.App.4th at p. 73 [inmate’s current risk to public safety key consideration in assessing suitability for parole].) The medium risk for recidivism was evidence of petitioner’s current dangerousness. (Hayward v. Marshall (9th Cir., Apr. 22, 2010, No. 06-55392) ___ F.3d ___ [2010 U.S.App. LEXIS 8411, *40-41] [psychological report indicating that inmate would pose low to moderate risk of danger if released constituted some evidence of future dangerousness]; In re Lazor, supra, 172 Cal.App.4th at p. 1202 [“A psychological evaluation of an inmate’s risk of future violence is information that also ‘bears on the prisoner’s suitability for release’”].)
This case is distinguishable from In re Palermo, supra, 171 Cal.App.4th 1096 and In re Moses, supra, 182 Cal.App.4th 1279, where the courts reversed findings that the petitioners were not suitable for parole. In those cases the most recent psychological reports indicated that the inmates presented a low risk of dangerousness when compared to the average citizen. (In re Palermo, at p. 1104; In re Moses, at p. 1292.)
Petitioner’s challenges to the clinical accuracy of the report does not show the Governor could not rely on the report. Although there are discrepancies between Dr. Starrett’s evaluations and prior evaluations indicating that petitioner posed a low risk of recidivism, Dr. Starrett considered the prior evaluations before rendering his conclusions. Petitioner has not shown that the 2008 report is so inherently unreliable as to deprive it of evidentiary value or preclude the Governor’s consideration of it. (Lawrence, supra, 44 Cal.4th at p. 1226 [“Our deferential standard of review requires us to credit the Governor’s findings if they are supported by a modicum of evidence....”].)
Apparently, the Board may order an additional report to address inconsistencies in successive reports. (See In re Rico (2009) 171 Cal.App.4th 659, 675.)
c. Circumstances of the Offense
The final factor relied upon by the Governor was the nature of petitioner’s commitment offense. The Governor made clear that he did not rely solely on the circumstances of the offense stating, “[t]he gravity of the crime supports my decision, but I am particularly concerned that Mr. Carroll still lacks full insight into the circumstance of the life offense, and by his recent medium rating for his risk of recidivism.” Citing the following passage from Lawrence, petitioner argues that the evidence his offense was “‘especially atrocious’ may not be considered some evidence” of his current dangerousness: “[A]lthough the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner’s pre- or postincarceration 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 of the statutory determination of a continuing threat to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1214.)
Here, as explained, there was evidence in petitioner’s postincarceration history including his lack of insight into the crime and evidence that his mental state supported a prediction of an elevated risk of recidivism. The Governor could consider the circumstances of the offense – the gratuitous shooting of a man pleading for his life for a trivial motive – in conjunction with this other evidence. “‘[T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor.’” (In re Shaputis, supra, 44 Cal.4th at p. 1260.) Petitioner does not dispute that there was evidence to support the conclusion that the offense was “‘especially atrocious’” and that evidence supported the Governor’s decision.
In his opening brief, the Governor argued that the circumstances of the commitment offense could be considered in conjunction with petitioner’s lack of insight and the 2008 psychological report. We therefore reject petitioner’s argument that the Governor forfeited this contention.
DISPOSITION
The superior court’s order granting petitioner’s petition for writ of habeas corpus is reversed.
We concur: EPSTEIN, P. J.WILLHITE, J.
“ (a) General. The panel shall first determine whether the life prisoner is suitable for release on parole. 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.
“(b) Information Considered. 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.
“(c) Circumstances Tending to Show Unsuitability. The following circumstances each tend to indicate unsuitability for release. These circumstances are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel. Circumstances tending to indicate unsuitability include:
“(1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered include:
“(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.
“(2) Previous Record of Violence. The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age.
“(3) Unstable Social History. The prisoner has a history of unstable or tumultuous relationships with others.
“(4) Sadistic Sexual Offenses. The prisoner has previously sexually assaulted another in a manner calculated to inflict unusual pain or fear upon the victim.
“(5) Psychological Factors. The prisoner has a lengthy history of severe mental problems related to the offense.
“(6) Institutional Behavior. The prisoner has engaged in serious misconduct in prison or jail.
“(d) Circumstances Tending to Show Suitability. The following circumstances each tend to show that the prisoner is suitable for release. The circumstances are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel. Circumstances tending to indicate suitability include:
“(1) No Juvenile Record. The prisoner does not have a record of assaulting others as a juvenile or committing crimes with a potential of personal harm to victims.
“(2) Stable Social History. The prisoner has experienced reasonably stable relationships with others.
“(3) Signs of Remorse. The prisoner performed acts which tend to indicate the presence of remorse, such as attempting to repair the damage, seeking help for or relieving suffering of the victim, or indicating that he understands the nature and magnitude of the offense.
“(4) Motivation for Crime. The prisoner committed his crime as the result of significant stress in his life, especially if the stress has built over a long period of time.
“(5) Battered Woman Syndrome. At the time of the commission of the crime, the prisoner suffered from Battered Woman Syndrome, as defined in section 2000(b), and it appears the criminal behavior was the result of that victimization.
“(6) Lack of Criminal History. The prisoner lacks any significant history of violent crime.
“(7) Age. The prisoner’s present age reduces the probability of recidivism.
“(8) Understanding and Plans for Future. The prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release.
“(9) Institutional Behavior. Institutional activities indicate an enhanced ability to function within the law upon release.”