Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. Nos. BH007372, NA011018
ORIGINAL PROCEEDING on petition for writ of habeas corpus.
Law Office of Susan L. Jordan and Susan L. Jordan for Petitioner.
Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Julie A. Malone and Nikhil Cooper, Deputy Attorneys General, for Respondent.
GRIMES, J.
In 1992, Koung Chinn pled guilty to second degree murder and admitted use of a firearm. The trial court sentenced Chinn to 15 years to life in prison. In 2010, the Board of Parole Hearings (Board) found Chinn suitable for parole. Later that year, however, then Governor Schwarzenegger reversed the Board’s decision. Chinn has filed a petition for a writ of habeas corpus challenging the Governor’s decision. We conclude the record does not contain “some evidence” that Chinn currently poses an unreasonable risk of danger to society. Accordingly, we grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Commitment Offense.
The commitment offense occurred in April 1992, when Chinn was 21 years old. The victim was Bopha Kim, Chinn’s estranged girlfriend and the mother of his then one-year-old daughter.
Chinn and Kim were engaged and started living together in 1989. Kim became pregnant in 1990 and the couple began arguing about the baby and money issues. The couple separated approximately five months before the murder.
On the day in question, Chinn arrived at Kim’s apartment in Long Beach, planning to take his daughter to a Cambodian New Year’s festival. According to Chinn, after he arrived, Kim changed her mind and would not let him take the child. The two argued in the bedroom. Kim was holding the child in her arms. At some point, Chinn pulled out a gun and shot Kim twice in the head. Kim’s brother was in another room and heard the shots.
Chinn claimed he carried a gun because he feared for his life after having dropped out of a gang.
Chinn fled the scene and traveled to Canada. He was arrested at a border crossing in New York when he returned to this country a little more than two months after the shooting. He claims he was feeling guilty and intended to turn himself in.
Later that same year, Chinn pled guilty to second degree murder and admitted using a firearm in the commission of the offense. (Pen. Code, §§ 187, 12022.5, subd. (a).) The court sentenced Chinn to a prison term of 15 years to life. It also imposed, but stayed, a four-year term for the firearm use. Chinn’s minimum parole eligibility date was in July 2002.
All statutory references are to the Penal Code.
2. Social History and Prior Criminal Record.
Chinn was born in Cambodia in 1970. He was the youngest of nine children. The Khmer Rouge communists took control of Cambodia when Chinn was five years old. He went to school for less than one year, but the communists “stop[ped] it.” Chinn’s family was forced to move from the city to a village in the mountains. Shortly thereafter, Chinn’s father passed away because of a lack of medication and food. Three brothers also died in communist Cambodia, though Chinn does not know the circumstances of their deaths.
In 2010, Chinn told the psychologist who prepared his most recent psychological evaluation that it was hard to “grow up and see all the war zone... no food to eat, no clothes, no shoes to wear, we went through hell. A lot of pain and suffering. See a lot of ugly things.”
Chinn’s family escaped Cambodia in 1979 and spent nearly three years in a refugee camp in Thailand. After spending an additional eight or nine months in the Philippines, Chinn arrived in this country in 1982, together with his mother, two brothers and a sister. One brother and one sister went to Australia.
Shortly after arriving in this country, Chinn’s family settled in Long Beach. Chinn began attending school in the seventh grade. He graduated from high school and attended community college for over two years.
Although Chinn started associating with a gang while in high school, he had no juvenile record. As an adult, Chinn pled no contest in 1989 to carrying a loaded firearm in a vehicle (§ 12031, subd. (a)), and was placed on probation, which he completed successfully. Chinn claimed he stopped associating with the gang after this 1989 arrest, and there is no evidence to the contrary. Indeed, in its most recent parole decision, the Board observed that Chinn had disassociated himself from the gang before the commitment offense and did not get involved with gangs while in prison.
At the time of the murder, Chinn was attending a junior college, mostly at night. He was studying business management and taking 12 units of coursework. During the day, he worked part time as a teacher’s aide and as a security guard on campus.
3. Disciplinary Record in Prison.
Since arriving in prison in 1992, Chinn has received only one CDC “115” rules violation report -- in 1993 for providing false identification to gain access to the yard. He has received one CDC “128-A” custodial counseling chrono -- in 1996 for missing a job assignment.
A CDC “115” is issued for misconduct “believed to be a violation of law or... not minor in nature.” A CDC “128-A” is issued for incidents of “minor misconduct.” (Cal. Code Regs., tit. 15, § 3312, subd. (a)(2) & (3); In re Reed (2009) 171 Cal.App.4th 1071, 1077.)
4. Rehabilitative Efforts.
Chinn has done well in prison. He has not engaged in any violent conduct, and his custody level is Medium A with a classification score of 19, the most favorable score possible for a life-term inmate. (See Regs., § 3375.3, CDC Classification Score Sheet; Cal. Department of Corrections and Rehabilitation, Department Operations Manual (DOM) (electronic ed. updated through Jan. 1, 2011) Ch. 6, Adult Classification, §61010.11.5, p. 520 <http://www.cdcr.ca.gov/Regulations/Adult_Operations/docs/DOM/Ch%206-Printed%20Final%20DOM%202011.pdf> [as of July 26, 2011].)
“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/her 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. For example, prisoners with high classification scores will be sent to the prisons with higher levels of security.” (In re Richards (1993) 16 Cal.App.4th 93, 95, fn. 1.)
Chinn has not been disciplined for any substance-related behavior. According to Chinn’s most recent psychological report, “[r]]ecords... reflect that Mr. Chinn has not been part of any prison gang or disruptive group.”
There is no indication that drugs or alcohol played any role in the commitment offense. According to Chinn, he has never tried illicit drugs, including marijuana. He admitted trying alcohol once in the seventh grade, but he became severely ill and never consumed alcohol again. The record contains no evidence to the contrary.
Chinn has upgraded himself vocationally and has been involved in many self-help and educational programs. Among other things, he has earned certifications in graphic arts and landscaping, and received training in welding. He has worked as a dental technician, clerk, porter, and lunchbox crew member. He has participated in numerous self-help programs, including Seeking Peaceful Solutions, Breaking Barriers, Fathers Behind Bars and Balanced Reentry Activity Group (BRAG). He has participated in anger management courses, as well as group therapy.
5. Psychological Evaluations.
Chinn’s most recent psychological evaluation was prepared in March 2010. According to the report, Chinn “has no previous or current history of community psychiatric treatment.” However, from January 1993 (shortly after his incarceration) until September 1995, he was enrolled in the Mental Health Services Delivery System at the Correction Case Management Services, apparently because staff were concerned that he was depressed and suicidal. Chinn acknowledged that he was very depressed and regretful for his actions, and he was having a difficult time adjusting to prison life. However, he denied he was suicidal. The psychologist believed this period was “an isolated and transitory period of emotional difficulty consistent with problems in adjusting to situational stressors and circumstances.”
According to the psychologist, Chinn “demonstrated a strong understanding of the significance of his actions during the life crime, and the grave impact it has had on his daughter, the victim’s extended family, as well as on his own family of origin.” The psychologist opined that Chinn “demonstrated a sense of regret and an understanding that his actions and overall lifestyle and values at the time of his life crime were antisocial, excessive to the circumstances, and grossly deviated from what society would expect or tolerate.” The psychologist believed Chinn “demonstrated an affective (emotional) understanding of the seriousness of his past choices and actions during the life crime as well as a desire to remain connected to those facts in order to continue to motivate himself to do well in his own life, and to improve, so that he never returns to that way of thinking again. He repeatedly stated how he was responsible for the life crime, and while there were conflicts in his ‘on-off’ relationship with the victim, he believed that he had no right to turn to violence or take her life.” According to the psychologist, Chinn “demonstrated an appropriate level of insight into his actions at the time of the life crime as well as how his thought process and decision-making were problematic and led to his commission of the life crime.”
With respect to the risk Chinn would pose if released, the psychologist rated Chinn in the low range in all categories. Thus, she opined that Chinn was (1) “within the low range of the clinical construct of psychopathy.... scor[ing] lower than approximately 99 percent of North American male offenders, ” (2) “in the low risk category for violent recidivism, ” and (3) “within the low range of general recidivism risk, ” scoring lower than more than 99 percent of United States male inmates. The psychologist’s overall risk assessment for Chinn was that he “presents a low risk for violence in the free community.”
Chinn’s previous four psychological evaluations -- each prepared by a different psychologist -- were also favorable. In a 1995 report, the psychologist opined that Chinn’s “[c]urrent violence potential is below average, ” though he also noted that [i]n a less controlled [setting] such as the community, he is still somewhat unpredictable at this time.” In a 2001 report, the psychologist opined that “[i]f released to the community, [Chinn’s] violence potential... is estimated to be no more than the average citizen in the community.” In a 2006 report, the psychologist opined that Chinn’s “violence potential is lower than average.” And in a 2008 report, the psychologist opined that Chinn “represents a [l]ow risk of violence and general recidivism.”
6. Parole Plans.
Because there is an immigration hold on Chinn, he expects to be deported upon his release from prison. In such event, Chinn plans to live with a cousin in his native Cambodia, who has offered him a job at an auto repair shop. Chinn told the Board at his most recent parole hearing that his preference is to return to Cambodia. However, he also has parole plans in case he remains in this country. In such case, he plans to live with his sister in Long Beach. The Board received letters from many of Chinn’s relatives in Cambodia, Australia and the United States, offering housing, financial assistance and employment or assistance finding employment.
7. Procedural History.
a. Chinn’s successful challenge to the denial of parole in 2008.
At the conclusion of a parole suitability hearing in October 2008, the Board found that Chinn was not suitable for parole, based mainly on the circumstances of the crime and what the Board believed to be Chinn’s insufficient insight.
In February 2009, Chinn filed a petition for a writ of habeas corpus in the superior court. In February 2010, the superior court (Judge Peter Espinoza) concluded that the Board’s decision was not supported by substantial evidence. The court granted the petition and directed the Board to conduct a new suitability hearing within 90 days.
b. The Board’s 2010 finding of parole suitability.
In April 2010, the Board conducted the new suitability hearing ordered by the superior court. Chinn testified with the help of a Cambodian language translator. At the conclusion of the hearing, the Board found that Chinn was suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety.
Chinn spoke English reasonably well, but he had some difficulty communicating without a translator. At the 2008 parole hearing, Chinn testified without a translator. While Chinn told the psychologist who prepared his 2010 psychological evaluation that he did not require a translator because his English was “pretty good, ” the psychologist determined it was necessary to use a translator to a limited extent. The psychologist noted that when she interviewed Chinn, he was able to communicate in English and utilized the translator as needed on a minimal basis.
The Board was still troubled by the commitment offense. It also referenced Chinn’s previous arrest and noted “some unstable social history.” However, it found these were outweighed by other factors. Among other things, the Board expressed its belief that Chinn was sincerely remorseful, and understood the nature and magnitude of his crime. It believed Chinn has “insight into the causative factors of [his] action.” The Board also noted that Chinn has “shown an ability to function within the rules as evidenced by [his] lack of serious disciplinary problems over the past... 17 years.” The Board told Chinn it was “very impressed” with his disciplinary record, “especially since you were a gang member and you were able to disassociate yourself from the gang lifestyle and that... even in prison you didn’t go back to a gang behavior that you very easily could have once you came here.”
c. The Governor’s reversal.
In August 2010, then-Governor Schwarzenegger reversed the Board’s decision. The Governor cited the circumstances of the crime, opining that the crime was “especially atrocious” because (1) the crime demonstrated an exceptionally callous disregard for the life and suffering of both Kim and the daughter, and (2) the motive for the crime was extremely trivial.
In addition, the Governor believed Chinn “lacks insight into his life offense and has not fully accepted responsibility for the murder because he has consistently minimized his conduct in the crime.” To support this assertion, the Governor offered the following:
(1) Chinn told the psychologist who prepared the 1995 psychological evaluation that during the argument which broke out when he arrived at Kim’s apartment to take his daughter to the Cambodian festival, Kim “suddenly grabbed the baby by the neck with both hands and thrust the baby forward with outstretched arms” as a way of “getting back at him.” Chinn added: “Then I lost control too. After that, I didn’t want to live anymore.”
(2) On a few occasions, Chinn referred to the crime as a “mistake.”
The Governor cited several instances when Chinn allegedly referred to the crime as a “mistake, ” including one in 2006. The 2006 statement, however, was not made by Chinn, but by the psychologist who interviewed him. The psychologist stated in the psychological report that Chinn “remains sad, knowing what a terrible, one-time mistake he made.”
(3) At a 2009 parole hearing, Chinn was asked whether Kim could have done anything to prevent the murder, and Chinn responded that she could have obtained a restraining order.
(4) Chinn’s most recent psychological report noted in the concluding paragraph that “[o]ngoing positive programming focused on developing further coping skills and insight into the life crime can only serve to assist [Chinn] upon release to the community.”
(5) At the 2010 parole hearing, the “Board concluded, ‘We noticed that maybe you didn’t have the greatest insight in the whole world and you had a past lack of insight into the crime.’”
d. Most recent writ proceeding in the superior court.
Chinn petitioned the superior court for relief. In January of this year, the court (Judge Patricia Schnegg) denied the petition.
Chinn has now filed this petition, claiming the Governor’s decision is not supported by some evidence.
DISCUSSION
1. Applicable Legal Principles.
“[T]he Board is the administrative agency within the executive branch that generally is authorized to grant parole and set release dates.” (In reLawrence (2008) 44 Cal.4th 1181, 1201 (Lawrence).) The Board “shall normally set a parole release date” one year before the inmate’s minimum eligible parole release date, unless it determines that public safety requires a lengthier period of incarceration. (§ 3041, subds. (a) & (b); Lawrence, supra, 44 Cal.4th at p. 1202.) “[R]elease on parole is the rule, rather than the exception.” (In re Smith (2003) 114 Cal.App.4th 343, 351, quoted with approval in Lawrence, at p. 1204.)
The Board is required to consider “[a]ll relevant, reliable information available to [it] in determining suitability for parole.” (Regs., § 2281, subd. (b).) The applicable regulation lists circumstances tending to show suitability and those tending to show unsuitability, while noting these are “general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel.” (Regs., § 2281, subds. (c), (d).)
“Suitability factors are: (1) the absence of a juvenile record; (2) ‘reasonably stable relationships with others’; (3) signs of remorse; (4) a crime committed ‘as the result of significant stress in [the prisoner’s] life’; (5) battered woman syndrome; (6) the lack of ‘any significant history of violent crime’; (7) ‘[t]he prisoner’s present age reduces the probability of recidivism’; (8) ‘[t]he prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release’; and (9) the inmate’s ‘[i]nstitutional activities indicate an enhanced ability to function within the law upon release.’ ” (Lawrence, supra, 44 Cal.4th at p. 1203, fn. 8, quoting and citing Regs., § 2281, subd. (d), original brackets.)
When the Board determines that an inmate convicted of murder is suitable for parole, the Governor has the constitutional authority to conduct a de novo review of the Board’s decision. (Cal. Const., art. V, § 8, subd. (b); Lawrence, supra, 44 Cal.4th at p. 1204; see also § 3041.2.) In doing so, “the Governor’s decision must be based upon the same factors that restrict the Board in rendering its parole decision.” (In re Rosenkrantz (2002) 29 Cal.4th 616, 660 (Rosenkrantz).)
“[T]he fundamental consideration in parole decisions is public safety.” (Lawrence, supra, 44 Cal.4th at p. 1205.) As the Supreme Court explained in Lawrence, supra, 44 Cal.4th at pp. 1205-1206, “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 (and the Governor) 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.’ (Rosenkrantz, supra, 29 Cal.4th at p. 655.) These factors are designed to guide an assessment of the inmate’s threat to society, if released, and hence could not logically relate to anything but the threat currently posed by the inmate.”
“[I]n directing 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.” (Lawrence, supra, 44 Cal.4th at p. 1219.) Accordingly, “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.” (Id. at p. 1211.) “[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.” (Id. at p. 1214.)
2. The 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 Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings.” (Lawrence, supra, 44 Cal.4th at p. 1212.) The inquiry for the reviewing court is “whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor.” (Id. at p. 1221.) “This standard is unquestionably deferential, but certainly is not toothless, and ‘due consideration’ of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision-the determination of current dangerousness.” (Id. at p. 1210; see also id. at pp. 1211-1212 [noting that the “exceedingly deferential” nature of the “some evidence” standard “‘does not convert a reviewing court ‘into a potted plant’” (quoting In re Scott (2004) 119 Cal.App.4th 871, 898)].)
As the Supreme Court recognized in Lawrence, “judicial review must be sufficiently robust to reveal and remedy any evident deprivation of constitutional rights.” (Lawrence, supra, 44 Cal.4th at p. 1211.) It is not enough to simply point to the existence of an unsuitability factor. “[N]ot only must there be some evidence to support the... factual findings, there must be some connection between the findings and the conclusion that the inmate is currently dangerous.” (In re Criscione (2009) 180 Cal.App.4th 1446, 1458.)
3. The Record Does Not Contain Some Evidence That Chinn Currently Poses an Unreasonable Risk of Danger to Society.
As discussed above, the Governor concluded that Chinn was not suitable for parole because (1) the commitment offense was “especially atrocious, ” and (2) Chinn “lacks insight into his offense and has not fully accepted responsibility for the murder because he has consistently minimized his conduct in the crime.”
Chinn expressly states in his petition that he does not take issue with the Governor’s determination that his murder of Kim was especially atrocious. He points out, however, that under Lawrence, the commitment offense cannot, standing alone, provide some evidence of current dangerousness. The Governor appears to concede as much. We therefore turn to consider the Governor’s additional reasons for reversing the Board’s decision -- Chinn’s alleged lack of insight into his crime and alleged failure to take responsibility for the crime.
As noted in In re Rodriguez (2011) 193 Cal.App.4th 85, 97, “[n]either Penal Code section 3041, nor the governing regulations list ‘lack of insight’ as an unsuitability factor.” However, in In reShaputis (2008) 44 Cal.4th 1241, 1258-1261 & fn. 20 (Shaputis), the Supreme Court upheld the denial of parole because the inmate’s lack of insight into his offense and its causes, together with the aggravated nature of the offense, supported a finding that he was currently dangerous and therefore unsuitable for parole.
The problem, here, however, is that the record does not contain “some evidence” that Chinn lacks insight into his crime or fails to take responsibility for it.
As the Court of Appeal recently explained in In re Rymer (2011) 196 Cal.App.4th 533, 548, “personal insight has long been recognized as a worthy goal. However, we have to question whether anyone can ever fully comprehend the myriad circumstances, feelings, and current and historical forces that motivate conduct, let alone past misconduct. Additionally, we question whether anyone can ever adequately articulate the complexity and consequences of past misconduct and atone for it to the satisfaction of everyone. Indeed, the California Supreme Court has recognized that ‘expressions of insight and remorse will vary from prisoner to prisoner and... there is no special formula for a prisoner to articulate in order to communicate that he or she has gained insight into, and formed a commitment to ending, a previous pattern of violent behavior.’ (Shaputis, supra, 44 Cal.4th at p. 1260, fn. 18.) More importantly, in our view, one always remains vulnerable to a charge that he or she lacks sufficient insight into some aspect of past misconduct even after meaningful self-reflection and expressions of remorse.” (Original ellipsis.)
Thus, the Governor noted Chinn told the psychologist who prepared the 1995 psychological evaluation that during his argument with Kim, she “suddenly grabbed the baby by the neck with both hands and thrust the baby forward with outstretched arms” as a way of “getting back at him.” Chinn added: “Then I lost control too. After that, I didn’t want to live anymore.” Aside from the fact that this statement was made approximately 15 years ago, and is therefore of little, if any, probative value to current dangerousness, we fail to see how the statement reflects a lack of insight or failure to take responsibility. Chinn did not say that Kim’s alleged shaking of the baby caused the shooting, much less that it justified it.
The Governor also noted that on a few occasions, Chinn referred to the crime as a “mistake.” However, these statements must be considered in context. It is unreasonable to construe Chinn’s statements to convey that the shooting was accidental or anything other than intentional. In fact, as noted above, even the psychologist who prepared Chinn’s 2006 evaluation used the word “mistake” in reference to the murder.
Thus, the psychologist who prepared Chinn’s 2001evaluation stated: “When asked about his commitment offense, inmate Chinn became very quiet. He states that he feels very sad and sorry, and he understands how badly he has hurt the victim’s family, himself and his daughter. Every day, he says he wishes he could have the victim back, and that this entire situation was a terrible mistake that he had made in his life. He is genuinely remorseful and repentant.”
The Governor also cited the fact that when asked at a 2009 Board hearing whether Kim could have done anything to prevent the murder, Chinn responded that she could have obtained a restraining order to prevent him going to her house. When a Board commissioner asked Chinn if a restraining order would have worked, Chinn said he thought so, because he did not want to go to jail, and he wished Kim had obtained a restraining order. However, when next asked if there was anything that he, Chinn, could have done to prevent the murder, Chinn answered, “Yes, a lot of things I could have done, ” and Chinn acknowledged at the time of the murder he was young, selfish and not thinking. The commissioner then asked why Chinn wanted a baby if he was so selfish, and Chinn replied that while it may have been wrong to have a baby when he had so little time and money for a family, he did not regret having his daughter, whom he loved and hoped would forgive him, though he said he would understand if she did not forgive him “because I don’t blame nobody but myself.” The commissioner then asked if Chinn blamed Kim at least in part for not getting a restraining order, and he said, “No.... It’s not her fault. It’s my fault. I’m the bad guy, you know. I’m the one that caused the problem, not her and not the baby either.” There is no evidence based on which it would be reasonable to infer that Chinn’s reference to a restraining order was made in an attempt to deflect blame or to exculpate himself.
The Governor cited the fact that Chinn’s most recent psychological report noted in the concluding paragraph that “[o]ngoing positive programming focused on developing further coping skills and insight into the life crime can only serve to assist [Chinn] upon release to the community.” However, that same report repeatedly emphasized that Chinn had insight into his crime, observing that Chinn (1) “demonstrated a strong understanding of the significance of his actions during the life crime, and the grave impact it has had on his daughter, the victim’s extended family, as well as on his own family of origin”; (2) “demonstrated a sense of regret and an understanding that his actions and overall lifestyle and values at the time of his life crime were antisocial, excessive to the circumstances, and grossly deviated from what society would expect or tolerate”; (3) “demonstrated an affective (emotional) understanding of the seriousness of his past choices and actions during the life crime as well as a desire to remain connected to those facts in order to continue to motivate himself to do well in his own life, and to improve, so that he never returns to that way of thinking again”; and (4) “demonstrated an appropriate level of insight into his actions at the time of the life crime as well as how his thought process and decision-making were problematic and led to his commission of the life crime.” At most, the psychologist’s statement cited by the Governor was a reflection of the fact one can never obtain full insight into one’s own behavior. (See fn. 9, ante.)
Finally, the Governor noted that, at the 2010 parole hearing, the Board told Chinn: “We noticed that maybe you didn’t have the greatest insight in the whole world and you had a past lack of insight into the crime.” However, the Board was referring to what it apparently believed was Chinn’s lack of sufficient insight in the past. Since the relevant inquiry is whether Chinn currently poses a danger to public safety, Chinn’s alleged lack of insight in the past is not particularly helpful. Moreover, the Board found at that very hearing that Chinn was suitable for parole and “would not pose an unreasonable risk of danger to society or a threat to public safety.” The Board specifically expressed its belief that Chinn was sincerely remorseful, understood the nature and magnitude of his crime, and has “insight into the causative factors of [his] action.”
In sum, we conclude the record before us does not contain some evidence of current dangerousness.
DISPOSITION
The petition is granted. The Governor’s August 30, 2010 decision to reverse the Board’s April 2010 decision granting petitioner parole is vacated, the Board’s decision is reinstated, and the Board is directed to proceed in accordance with its usual procedures for release of an inmate on parole, unless within 30 days of the finality of this decision the Board determines in good faith that cause for rescission of parole may exist and initiates appropriate proceedings to determine that question.
WE CONCUR: BIGELOW, P. J., FLIER, J.
All regulatory references are to the California Code of Regulations, title 15 (hereafter Regs.).
“Unsuitability factors are: (1) a commitment offense carried out in an ‘especially heinous, atrocious or cruel manner’; (2) a ‘[p]revious [r]ecord of [v]iolence’; (3) ‘a history of unstable or tumultuous relationships with others’; (4) ‘[s]adistic [s]exual [o]ffenses’; (5) ‘a lengthy history of severe mental problems related to the offense’; and (6) ‘[t]he prisoner has engaged in serious misconduct in prison or jail.’ ” (Lawrence, supra, 44 Cal.4th at p. 1202, fn. 7, quoting and citing Regs., § 2281, subd. (c), original brackets.)
“Factors supporting a finding that the inmate committed the offense in an especially heinous, atrocious, or cruel manner include the following: (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 that demonstrates an exceptionally callous disregard for human suffering; and (E) the motive for the crime is inexplicable or very trivial in relation to the offense.” (Lawrence, supra, 44 Cal.4th at p. 1202, fn. 7, citing Regs., § 2281, subd. (c)(1).)
In 2008, Chinn, speaking without a translator, told the Board: “I take full responsibility and the cause of sorrow hurting, mental anguish, the pain of Popha Kim family go through. I will have this conscious the rest of my life. I know the part of the Popha Kim family will suffer forever too. I supposed to love her, not take her life.... And if I [c]ould, not enough to make things right but I’m trying to say in what I took from Popha Kim is priceless. And I’m here today to say I’m sorry, apologize to her and to her family, to my family, and to my daughter, and to the Board member that I have caused people pain and sorrow.... I know now and realize how precious life is. How I one mistake, horrible mistake, can infect a lot of people feeling and sorrow and pain through the life term like a (inaudible) effects to any one life.”