Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Kern County, No. HC011460A, John S. Somers, Judge.
Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Assistant Attorney General, Jessica N. Blonien and David N. Sunada, Deputy Attorneys General, for Appellant.
Steve M. Defilippis, under appointment by the Court of Appeal, for Respondent.
Wiseman, J.
After the Board of Parole Hearings (Board) granted Steven M. Core parole, former Governor Arnold Schwarzenegger reversed the Board’s decision. Core filed a petition for writ of habeas corpus, challenging the Governor’s decision. The trial court granted the petition, ordering Core’s release on parole. This appeal followed. We granted the warden’s petition for writ of supersedeas, staying the trial court’s order. Although the appeal concerns the action of the Governor, the respondent to the petition is the warden of the prison where Core is incarcerated. (Pen. Code, § 1477.)
All further references to the Governor are to former Governor Arnold Schwarzenegger.
We reverse the trial court because the Governor’s reversal decision is supported by some evidence.
FACTUAL AND PROCEDURAL HISTORIES
Since Core entered a plea and did not proceed to trial, the facts are taken from the probation officer’s report.
On July 3, 1985, at approximately 4:00 a.m., Chun Kang, age 50, was discovered lying on the floor in a pool of blood in the Rocket Site Mini Mart in Boron, California. He had been shot in the face and died of asphyxia due to upper respiratory obstruction by blood. His wallet was missing.
Police received information that Steven Core, who was 18 years old at the time, his brother Neil Core, age 19, and Andrew Avila, age 20, were responsible. Avila reportedly bragged about the shooting. Steven and Neil were interviewed by the police and reported that Avila had actually committed the murder, but they were involved.
On the evening before the shooting, Steven, Neil, and Avila were at the Cores’ house. Avila wanted to buy a motorcycle that Neil was selling, but he did not have the money. Avila said he wanted to commit the robbery and “blow away” the clerk. He took a 20-gauge sawed-off shotgun from Neil. Steven, Neil, and Avila went to the store. Neil had a.22-caliber rifle. Avila entered the store and a few minutes later a shotgun blast was heard. Steven and Neil remained outside the store. After the robbery and shooting, Avila and the Core brothers went back to the Cores’ house and split the money. Avila gave Kang’s wallet to Steven, and Steven put the wallet in a hole in the wall of the house.
According to the probation officer’s report, Steven and Neil were known to be “normal, productive young people who participated in high school sports and various activities.” Neither brother had any criminal history. Recently, however, they had become involved with drugs and were hanging out with people who used “crank.” “[Steven] stated that the whole situation [was] a nightmare, in which he did not intend to get involved. He stated that he does bear some responsibility due to his actions, but does not feel he is guilty of murder.”
The probation officer wrote, “It is this officer’s opinion that this is an unusual case and that while [Steven] is not without culpability, the ramifications of the case went far beyond what the defendant intended them to be. The tragic consequences for the victim and the victim’s family are of prime importance and cannot be ignored. It appears that the defendant was aware of, or suspected, the possibility that the victim would be killed in the robbery.” The probation officer also opined, “[Steven] was induced by Co-defendant Avila to participate in the crime which led to the victim’s death.”
On October 4, 1985, Steven Core entered a plea of guilty to second degree murder. He was sentenced to 15 years to life in prison and initially ordered to be housed at the California Youth Authority.
Parole suitability hearing
On February 26, 2009, the Board held a suitability hearing and granted Core parole.
Describing the commitment offense, Core said he participated in the robbery to get money for drugs. Avila told Core he would get a third of the money if he would act as lookout. Core told the Board, “We [Steven and his brother Neil] didn’t want him to kill him, ma’am. We just thought [Avila] was going to rob him. But he did talk of killing him, and I should have … I should have stopped it.”
The Board asked about Core’s earlier statements that he did not feel guilty of murder. Core told the Board, “I couldn’t accept that I was actually—I couldn’t have done what [Avila] did. That’s the thing. But I could—I participated.… I would have never even robbed the person, but I thought by just being involved as little as I could that I would be able to justify by being more innocent. That’s—Which is incorrect.”
The Board discussed Core’s discipline history in prison. He received eight “115’s, ” the most recent in 2003. About five of the 115’s were for failure to report to work. He also received 11 “128(a)’s, ” the most recent in 2002. In stating its decision, the Board observed that, on the positive side, none of Core’s discipline was for violence, drugs, or alcohol.
A “115” is a disciplinary report for prisoner misconduct that “is believed to be a violation of law or is not minor in nature.” A “128-A” documents minor misconduct. (In re Twinn (2010) 190 Cal.App.4th 447, 455, fn. 4; Cal. Code Regs., tit. 15, § 3312, subd. (a)(2) and (3).)
Core completed vocational training in janitorial services, carpentry, mill and cabinet making, and silkscreen and also studied landscaping and small engine repair. He worked in the machine shop and received satisfactory work reports. He participated in Narcotics Anonymous (NA) and Alcoholics Anonymous (AA) consistently since 2004.
The Board reviewed a 2007 psychological report prepared by Dr. Thacker. Dr. Thacker used three assessment guides to assess Core’s risk of violence in the free community.
First, using the PCL-R psychopathy checklist, Core fell within the low range of psychopathy. Dr. Thacker wrote:
“Findings in regards to Mr. Core were that his total score fell within the low range of psychopathy. Some of the personality characteristics evidenced by Mr. Core included a grandiose sense of self-worth and some deceitfulness. In regards to behavioral markers of psychopathy, Mr. Core did present with some proneness to boredom/need for stimulation, poor behavioral controls, lack of realistic long-term goals, impulsivity, and irresponsibility. He did not present with glibness, manipulation, lack of remorse, shallow affect, lack of empathy, a history of early behavioral problems, juvenile delinquency, revocation of supervised release or criminal versatility. He seemed to accept responsibility for his actions. It is important to note that the ratings of these characteristics are done based upon the inmate’s presentation over his lifetime rather than his current presentation. In Mr. Core’[s] case, some of these traits/behaviors were much stronger in the early part of his life as compared to the latter part. Again, Mr. Core’s score fell in the low range of psychopathy overall. His score was lower than 95.1% of the male prison population.”
Second, using the HCR-20 (historical, clinical, risk assessment), Core fell in the low range for risk of future violence. In the historical domain, he presented a low-moderate level of risk for violence. Dr. Thacker explained, “Given that the bulk of data contributing to this estimate is historical, then by definition, this score is not amenable to significant change regardless of the number of years of his incarceration or the amount of ‘programming’ completed by the inmate.”
Third, with the LS/CMI, an actuarial instrument “focused on risk of general recidivism and not violence per se, ” Core also scored in the low range.
Previously, the Board had asked the evaluator to (1) address the significance of drugs and alcohol to the commitment offense and (2) provide “an estimate of the prisoner’s ability to refrain from the use/abuse of same when released.” (Italics omitted.) Dr. Thacker responded that Core “had difficulties with various illicit substances as well as alcohol, ” and “[u]se of these substances played a definite role in the life crime in that drug use made the idea of fast, easy money appealing to the inmate so that he could purchase drugs.” She also observed:
“Mr. Core was very quickly honest about his participation in the crime and was honest about his use of substances. He was even honest about having used substances in CDCR until approximately 1997. He has spent the past 13 or 14 years attending NA and has been clean and sober for the past ten years. Through his participation in NA as well as his own spiritual and psychological journey, Mr. Core has examined the effect drugs have had on his life. He has resolved to not use substances in the future stating he would not do anything that would risk a return to prison. He has come to appreciate the little things in life that he has missed by being incarcerated and stated that he would never take those things for granted should he be allowed to parole and experience them during the latter years of his life.”
Core was asked whether he had a relapse prevention plan if released, and Core told the Board that he planned to stay at a rescue mission that had a relapse prevention program. The program was 12 months long and he would be subject to random and scheduled drug testing. The program also included anger management, forgiveness, Christian discipleship classes, financial stewardship, grief and loss, work therapy, physical education, legal aid, and access to medical and dental clinics. He would be given an opportunity to become an apprentice with the mission where he would earn a stipend, and job development would be offered.
The Board reviewed Core’s recent laudatory chronos and activities since his previous parole hearing. A “general chrono” refers to documentation of “information about inmates and inmate behavior.” (Cal. Code Regs., tit. 15, § 3000.) Core received a chrono for “proper operation and safety procedures” in the finishing mill machine operation shop and another for NA participation. He participated in anger-management and alternatives-to-violence classes, received a satisfactory work report, and wrote a book report on “Seven Habits of Highly Effective People, ” which he had been advised to read at his previous parole hearing. He played in the softball league and completed vocational training for janitorial service. Core also submitted photographs of hobby projects he completed in prison—a model Viking longship that he made for his niece and a wooden castle that he made for his mother.
Asked what might cause him to reuse drugs, Core responded, “I’d never reuse again. I don’t even have a desire to—I’m happy with—I like life the way it is. I don’t need—I don’t even like taking aspirin.” The presiding commissioner observed that Core would not know what life would be like on parole, and Core agreed, “Yes, that’s why I got to take it a day at a time. I’d go to the Rescue Mission, and then from there I would do what I have to do, whatever the rules are there, and I comply and then I would be attending NA and AA … whatever other self-help they have there. I like taking it.”
Core prepared a closing statement, which he read to the Board. He said, in part:
“The important question is, have I changed, am I rehabilitated? In 1985 I was an immature 18 year old with low self-esteem.… I started hanging out with the wrong crowd. I had never been in trouble before the murder of Mr. Kang, and, in fact, tried to stay out of trouble. But running around with the wrong people, in many ways, a little at a time I became like them. And although I did not agree with robbing Mr. Kang I was aware prior to the robbery that Andrew [Avila] had spoke of killing him and I didn’t believe he meant it, but as I look back knowing [Avila] I should have known he was going to do exactly what he said.…I made a choice to participate in the crime. Even though I participated only as a lookout I am nonetheless … as much a part of the murder as [Avila] who did the robbery and pulled the trigger. I accept responsibilitiy for my poor judgment and decision I made on that day. I had no right to decide his fate. Anyway, since then I have matured and no longer have a low self esteem.… I have become my own man, and I believe my psychological evaluation … 10 years reflect that. I used methamphetamines in 1985.… When one chooses to use drugs, whether they realize it or not, it is the first step down a wrong road. I have been drug free for over a decade and it feels good. Although I enjoy NA, I really do, it has less influence on me to stay clean than my own reinforced memory of my past lifestyle and resulting actions. In a way, Mr. Kang keeps me clean.”
Core said that anger-management class helped him understand “a more appropriate approach to difficult and frustrating situations, how to think things through and the consequences.” Alternatives-to-violence class helped to “recognize stressful situations and how to communicate frustration without being aggressive and reaching a favorable resolution.”
The Board concluded that Core would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison. Although the Board found the commitment offense “very reckless and offensive” and observed that there were many times “that [Core] could have not involved [himself], but [he] did, ” the Board found that Core had made a positive adjustment in prison and was suitable for parole. On balance, the Board concluded that the positive aspects of his case heavily outweighed the negative.
Regarding acceptance of responsibility and insight, the presiding commissioner told Core, “Even though you accepted responsibility for your part in this, I think it took you some time to figure out … how you got there to begin with. But you certainly have figured it out now.” The presiding commissioner said that Core came across as “very sincere, very emotional” and told him, “When we were talking about insight about how you … came to be the young man that you were when you committed this crime … I think it was very genuine, and I think you have a very good understanding.…”
The Board also cited his many vocations, his lack of disciplinary problems for over five and a half years, and his realistic parole plans.
Governor’s reversal
On July 16, 2009, the Governor reversed the Board’s decision. He offered four reasons for reversing the grant of parole.
First, the murder was “especially heinous because, as the 2009 Board said, it was ‘very reckless and offensive.’”
Second, “Core has still not accepted full responsibility for the murder because he has continuously minimized his actions in the offense.” The Governor cited Core’s statements over the years that he did not take Avila seriously (in 1991); that he was guilty but “‘not a killer’” (in 1998); that the offense was a function of his “‘stupidity’” (in 1998 and 2002); and that “he could never have shot the clerk as it is not in his nature” (in 2007). “During his 2009 parole suitability hearing, Core admitted that he and his brother ‘just thought [Avila] was going to rob [Kang]. But [Avila] did talk of killing him.…’ and acknowledged that he ‘should have stopped it.’” The Governor concluded, “The fact that Core still attempts to minimize his actions in the life offense and that he continues to attribute his actions to ‘stupidity’ indicates that he has not yet accepted responsibility for the life offense. This is concerning because Core cannot ensure that he will not commit similar crimes in the future if he does not completely understand and accept full responsibility for his offense.”
Third, the Governor noted Core’s drug history. In a 1998 psychiatric evaluation, Core admitted to using drugs in prison until 1997 and admitted that he had previously lied to the Board about his drug use. “Given the significance that Core’s need for drugs played in the life offense as well as the fact that Core continued his drug use for over ten years following his incarceration, even while he was participating in substance abuse treatment, I am concerned that he may not be entirely committed to his sobriety.”
Fourth, the Governor was concerned about the 2007 psychological evaluation, which mentioned that Core had evidenced “a grandiose sense of self-worth and some deceitfulness” and “some proneness to boredom/need for stimulation, poor behavioral controls, lack of realistic long-term goals, impulsivity, and irresponsibility.” The Governor reasoned, “Because Core’s poor behavioral controls and impulsivity were related to his involvement in the life offense, the fact that Core continues to display these characteristics indicates that he may still be at risk of recidivism if released at his time.”
In addition, the Governor observed that Core had been disciplined many times in prison. He stated, “Core’s misconduct in prison demonstrates his continued inability or unwillingness to conform his behavior to the rules and indicates that he may not be ready to obey the conditions of parole if released at this time.” He also noted that Core did not have a current job offer, and “[h]aving a stable and legitimate means to support himself immediately upon release is essential to Core’s success on parole.”
The Governor concluded, “The gravity of the crime supports my decision, but I am particularly concerned that Core still minimizes his prior criminal conduct by not accepting full responsibility for his offense, that his commitment to sobriety is questionable, and that the comments in his most recent mental-health evaluation raise concerns about the likelihood he could commit violence in the future.”
Petition for habeas corpus
On September 30, 2009, Core filed a petition for writ of habeas corpus in Kern County Superior Court.
On May 13, 2010, the trial court granted the petition. The court found that there was no evidence in the record that Core currently lacks insight into the crime. “[Core] has expressed his responsibility and remorse for his crime and demonstrated his understanding of its impact on the victim, the victim’s family, and his own family.” The court found that “[t]here [was] no evidence in the record showing that [Core] is at risk of relapse into alcohol or drug use.…” Aside from the assessment in the psychological evaluation of a low-moderate risk of recidivism, “[t]he record of the suitability hearing in 2009 contains no other evidence that could be relied on to show a significant likelihood of recidivism by [Core].”
The court concluded that the Governor’s decision was not supported by some evidence. The court also determined that remand to the Governor would be futile. Granting the petition for writ of habeas corpus, the court ordered Core’s release on parole. The warden appealed the court’s grant of habeas corpus relief. (Pen. Code, § 1507.)
The court also took judicial notice of a subsequent parole hearing held on February 1, 2010, in which Core was again granted parole.
DISCUSSION
I. Law governing parole decisions
Under the current sentencing law, certain serious offenders, including inmates convicted of noncapital murder, are subject to indeterminate sentences. (In re Dannenberg (2005) 34 Cal.4th 1061, 1078.) An inmate serving an indeterminate sentence may serve up to life imprisonment but becomes eligible for parole after serving a minimum term. (Ibid.)
Penal Code section 3041, subdivision (a), provides that, “[o]ne year prior to the inmate’s minimum eligible parole release date, ” a panel of the Board “shall … meet with the inmate and shall normally set a parole release date.…” The Board “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.…” (Id., subd. (b).) “‘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.]” (In re Lawrence (2008) 44 Cal.4th 1181, 1204 (Lawrence).)
Title 15, section 2402, subdivision (b), of the California Code of Regulations provides the framework for making the parole decision:
“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.”
Under the regulations, circumstances tending to show unsuitability for parole are: (1) the life offense was committed “in an especially heinous, atrocious or cruel manner”; (2) the prisoner has a previous record of violence; (3) “[t]he prisoner has a history of unstable or tumultuous relationships with others”; (4) the prisoner has committed a sadistic sexual offense or offenses; (5) “[t]he prisoner has 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.” (Cal. Code Regs., tit. 15, § 2402, subd. (c).)
Circumstances tending to show suitability for parole are: (1) the prisoner has no juvenile record; (2) the prisoner has “reasonably stable relationships with others”; (3) the prisoner has shown signs of remorse, “indicating that [the prisoner] understands the nature and magnitude of the offense”; (4) the life “crime [was] the result of significant stress in [the prisoner’s] life”; (5) the prisoner suffered from battered woman syndrome; (6) “[t]he prisoner lacks any significant history of violent crime”; (7) the prisoner’s “present age reduces the probability of recidivism”; (8) the prisoner “has made realistic plans for release or has developed marketable skills that can be put to use upon release”; and (9) the prisoner’s “[i]nstitutional activities indicate an enhanced ability to function within the law upon release.” (Cal. Code Regs., tit. 15, § 2402, subd. (d).)
“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.” (Cal. Code Regs., tit. 15, § 2402, subd. (a).)
After the Board has made a parole decision, the Governor has the right to review the decision with respect to an inmate serving an indeterminate term for murder. (Cal. Const., art. V, § 8, subd. (b).) “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.” (Ibid.) The Governor may, however, be more stringent or cautious than the Board in determining whether an inmate poses an unreasonable risk to public safety. (Lawrence, supra, 44 Cal.4th at p. 1204.)
II. Standard of review
“Due process of law requires that [the Governor’s] decision be supported by some evidence in the record. Only a modicum of evidence is required. Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the Governor.” (In re Rosenkrantz (2002) 29 Cal.4th 616, 676-677.) Since the trial court based its decision on documentary evidence without holding an evidentiary hearing, we review the record de novo to determine whether the writ was properly granted. (Id. at p. 677.)
III. Some evidence supports the Governor’s decision
As discussed above, the Governor reversed the Board’s parole decision based on the nature of the offense, Core’s minimization of his own actions in the offense, concern about Core’s commitment to sobriety, and comments in Core’s psychological evaluation. The Governor also expressed concern about Core’s history of prison discipline and his lack of a job offer.
At the 2009 parole hearing, Core said, “[A]lthough I did not agree with robbing Mr. Kang I was aware prior to the robbery that Andrew [Avila] had spoke of killing him and I didn’t believe he meant it, but as I look back knowing [Avila] I should have known he was going to do exactly what he said.… I made a choice to participate in the crime. Even though I participated only as a lookout I am nonetheless … as much a part of the murder as [Avila] who did the robbery and pulled the trigger. I accept responsibility for my poor judgment and decision I made on that day. I had no right to decide his fate.” The Board concluded that Core accepted responsibility, and the presiding commissioner observed that Core now has “a very good understanding” of how he became the young man who committed the crime.
The Governor reached a different conclusion, interpreting Core’s statements as minimizing his own conduct. This case is similar to In re Taplett (2010) 188 Cal.App.4th 440. Taplett was the driver in a drive-by shooting and pleaded no contest to second degree murder. (Id. at p. 442.) At her parole hearing, Taplett stated, “I made a decision to support my friend [who committed the shooting] and that’s why I am totally responsible for [the victim]. I took my co-defendant to that location, so I have to take responsibility for myself and her as well.” (Id. at p. 444.)
In a psychological evaluation, however, Taplett claimed that she had no intentions of violence. (In re Taplett, supra, 188 Cal.App.4th at p. 449.) Referring to her friend who actually shot the victim, Taplett said, “‘She stated, “I’m going to bust a cap on her.” I didn’t think she would do it.’” (Id. at p. 450.) The Governor reversed the Board’s grant of parole because Taplett still “‘attempts to minimize her responsibility for [the victim’s] death.’” (Id. at p. 448.) In denying Taplett’s petition for writ of habeas corpus, the court found that Taplett’s “rationalization” of her own conduct provided some evidence supporting the Governor’s decision. (Id. at p. 450.) Keeping in mind that we must “credit the Governor’s findings if they are supported by a modicum of evidence” (Lawrence, supra, 44 Cal.4th at p. 1226), we conclude that Core’s statements—like the prisoner’s statements in Taplett—provide a modicum of evidence to support the Governor’s decision.
In addition, the Governor cited Core’s relatively recent discipline history, which also contributes to our determination that “some evidence” supports his decision. (In re Hare (2010) 189 Cal.App.4th 1278, 1293.) Of course, Core’s disciplinary history will lose predictive value with respect to his current dangerousness the longer he remains discipline-free.
Since we have found the requisite modicum of evidence supporting the reversal decision, we need not review each of the remaining reasons offered by the Governor. We observe, however, that the Governor’s reliance on Core’s lack of a job offer appears suspect (In re Hare, supra, 189 Cal.App.4th at p. 1293), as does his reliance on psychological evaluations not based on Core’s current mental health (Lawrence, supra, 44 Cal.4th at pp. 1223-1224).
We conclude the Governor’s decision is supported by some evidence. Consequently, the trial court erred in granting Core’s petition for writ of habeas corpus.
DISPOSITION
The judgment is reversed. The trial court is directed to issue an order denying the writ.
WE CONCUR: Hill, P.J., Detjen, J.