Opinion
C079050
03-29-2017
In re STACEY LELAND GAYLORD on Habeas Corpus.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In May 1991, petitioner Stacey Leland Gaylord was sentenced to serve an indeterminate term of 15 years to life in prison after pleading guilty to second degree murder. In July 2014, the Board of Parole Hearings (Board) found petitioner suitable for parole. The Governor reversed the Board's decision in November 2014. Petitioner then filed an unsuccessful petition for habeas corpus in the superior court to challenge the Governor's decision.
After reviewing the record before us, we determine the Governor's decision makes no attempt to establish a nexus between the petitioner's explanations for his decades-old commitment offense and any indication petitioner is currently dangerous. Consequently, we grant the petition for habeas corpus.
FACTUAL AND PROCEDURAL HISTORY
The 1990 Murder
Because petitioner pleaded guilty to the commitment offense, we draw the facts from the probation report prepared in connection with his sentencing in 1991. In pertinent part, the probation report recounted: Around 7:00 p.m. on July 1, 1990, petitioner wanted to lie down in bed because it was a Sunday and he wanted to rest. A half hour later, his wife Jacqueline Gaylord stated she wanted to go to a fireworks show with their 10-week-old son, Derrick Gaylord. Petitioner refused because he was "not going to start the week with no sleep." Believing Jacqueline to be "laying a guilt trip" on him to attend the fireworks, he "blew up inside." Jacqueline and petitioner took separate showers, with petitioner finishing first. Jacqueline instructed petitioner to wake Derrick to change his clothes and diaper. Derrick cried during the process. Jacqueline gave petitioner a bottle to feed Derrick. As petitioner attempted to comfort Derrick, he envisioned a long week of work ahead and his "anger and stress took over." Petitioner stated, "It turned me into an animal totally out of control."
Petitioner shook Derrick to death. Jacqueline recounted that "she was in the other room blow drying her hair while her husband was dressing the baby. He called her saying 'there is something wrong.' She came out and the baby was not breathing." Derrick was dead on arrival at the local hospital. Efforts to revive the infant were unsuccessful and might have caused some of the bruising later observed on Derrick's body.
An autopsy revealed the cause of Derrick's death was that the " child had maltreatment syndrome ('battered baby' with shaken baby syndrome, characterized by blunt force injuries varying in time and location and by findings of whiplash injury.)'" Derrick's injuries included: "6-8 fractured ribs on the right side, and 5-9 fractured ribs on the left side with healing shown with callus formation. The forensic pathologist thought the injuries were 4-5 weeks old. Also a fracture of a twisting type injury to the right arm with approximately the same age as the rib fractures. There was other bruising on the child," including numerous contusions and abrasions. According to the probation officer's report, the forensic pathologist testified at the preliminary hearing that "ribs in a child this age are 'very, very pliable' with a great deal of flexibility. The nature of the injury was a squeezing to the type of injury. The same being true with the arm, that it would take some force to cause the injury as the bones are pliable."
When petitioner and Jacqueline later talked about Derrick's death, petitioner "admitted that he would have his fingers on the baby's back toward his spine, his thumbs on his chest, and he would squeeze him that way. The purpose of squeezing was to stop the baby from crying when he was having a fit." After Jacqueline read the autopsy report, she left him and filed for divorce.
Petitioner's Preprison History
Growing up, petitioner did not suffer abuse or neglect. He graduated from high school. Petitioner did not have any substance abuse problems or criminal history prior to the commitment offense. He met his wife, Jacqueline, when he was 20 years old. Not long after they met, Jacqueline unexpectedly announced she was pregnant. Petitioner recounted, "It was really overwhelming to me." He "didn't experience any feelings of joy when she gave [him] the news. Instead, it was like this abyss opened up in front of [him], and [he] was just immediately deeply overwhelmed with this responsibility that had been thrust on [his] shoulders."
When Derrick was born, petitioner never bonded with him. Petitioner explained, "I was so overwhelmed with the responsibility. And I just - I was too selfish. I wasn't ready to settle down. It was - you know, it was just too much for me. I couldn't deal with the responsibility of having this other person that his entire being depended on me, you know. And I wasn't ready to give up my ideal image of what I wanted the marriage to be before he came along."
In-Prison Conduct
A psychological assessment conducted by forensic psychologist Michael F. Pritchard in March 2014 noted, "[petitioner] has an exemplary history of cooperative and responsible institutional behavior and positive and self-enhancing rehabilitative programming. He has had no incidents of custodial counseling notes." The Board noted petitioner had "gotten some laudatory chromos . . . from correctional officers and staff" in 2013 and 2014.
Psychological Evaluation
The 2014 psychological assessment states, "[Petitioner] demonstrates a reasonable insight and self-awareness into his responsibility for the life crime and some of the dynamics of the thoughts, feelings, and motives which impelled his behavior." The psychological assessment further concludes, "He speaks openly and directly and takes full responsibility for his behavior. He is trying to develop understanding and insight about a behavior he finds to be inexcusable and unjustifiable. He appears to have devoted time, energy, and thought to coming to grips with the results of his anger and violence. [¶] He has no present evidence of violent ideation, symptoms of mental illness, unstable behavior or affect, or inability to take advantage of treatment and supervision opportunities."
As to the risk of future violence, the psychological assessment concludes: "Based upon an analysis of the presence and relevance of empirically supported risk factors, case formulation of risk, and consideration of the inmate's anticipated risk management needs if granted parole supervision (i.e., intervention, monitoring), [petitioner] represents a Low risk for violence. He presents with non-elevated risk relative to Life-term inmates and other parolees. [¶] He has no history of general antisocial behavior, criminality, or violent attitudes and actions. He has no history of substance abuse/dependence or any behavioral dyscontrol related to substance intoxication. He has no history of major mental illness. He has shown the ability to respond appropriately and reliably under conditions of supervision and direction. He has established a feasible and supported parole plan. Given his long standing belief that he does not find any description of dynamic or motive for his behavior to be reasonable, he has developed a workable insight and self-awareness about his violent loss of control." (Habeas exhibit B, pp. 9-10)
Parole Plans
The 2014 psychological assessment notes, "[Petitioner] says that if he is granted parole he intends to return to Fall River Mills and live with his parents. He says he would like to be available to assist them in their old age. He reports he has no established job placement, but believes he will be able to work for a friend of his parents who has a construction company. He says he also intends to go to Shasta College to take a class on maintenance of the wind turbines which have been constructed in the area, and which he says require continual maintenance. [¶] He reports he continues to be in communication with former friends and relatives in the community including his parents and nieces (his sister's daughters who are married with children). [¶] He has no need for mental health or substance abuse support or treatment. He has shown reasonably good employment skills when previously in the community. He is familiar with the environment and should be able to establish support there. His plans appear to be commensurate with his needs."
2014 Parole Hearing
When the Board asked petitioner to describe himself at the time of the commitment offense, he responded: "Very selfish. You know, I had a very fierce sense of independence that I couldn't - I couldn't let go of that. And, you know, along with my sense of independence, I didn't - I didn't have the tools to deal with all of the pressure and stress of, you know, a marriage that wasn't going well, and you know, my financial worries, you know, all the other stresses." Thus, petitioner stated, "I lashed out in the only way I knew how, was anger and violence." However, he did not engage in any domestic violence against Jacqueline or anyone else other than Derrick.
Petitioner stated that at the time of Derrick's death, "I was one of those guys that had a problem with bringing his work home with him. I couldn't let it go when I left the job site. And I was - I had been trying to talk her out of going to this [fireworks show]. I didn't really want to go because I was exhausted. I was tired. I wanted to just stay home and rest. And it just seemed like she was really riding me about this and wouldn't let up. So I was - I was really angry. And when she was in the bathroom getting ready, she said, well, you know, get the baby changed, get him ready, and feed him. And, you know, she had started out breastfeeding. So he wouldn't take a bottle. So he started crying. And when he started crying, I couldn't do nothing to soothe him. I couldn't - I had no - my parenting skills were so limited that I just - I shook him. I violently shook him, and I shook the life out of him. And, my gosh, it's horrible."
Petitioner also admitted to prior abuse, saying: "I shook him. I squeezed him. You know, I would hit him, everything." He never told Jacqueline he did this.
When asked what petitioner would do now if he had a situation like that, petitioner responded: "Oh, boy, I would - I'd go to Dad. I would go to my dad and say, you know, I'm having a problem. I've got a lot of stress. I don't know what to do." However, petitioner stated: "You know, my pride was in the way. And I didn't want to - you know, up to that point in time in my life, I was thinking I was doing pretty good about impressing on everybody that I was this grown-up, mature guy." When questioned about what else he might do now if presented with a similar circumstance, petitioner answered: "I would, you know, go jump on my bicycle, take a ride. You know, I would go to church. I would go, you know, talk to my wife. Say, look, you know - I'd let people know I'm having problems. I would open up and communicate, which was something I couldn't do back then."
Petitioner stated he had benefitted from anger management classes and he had been engaging in mindful meditation and Buddhist services since 2011. He had become a coordinator for the weekly meditation meetings. To regain harmony in his life, petitioner focused on "Buddhism, meditation, coming to terms with what I did and living through the ordeals of waking up in the mornings not wanting to get out of bed and face people. Just coming to terms with what's it like to feel like a monster."
The Board's presiding commissioner noted the psychological risk assessment conducted of petitioner, recounting, "the doctor talked to you about the life crime. Made a clinical assessment. Indicated that you had adequate insight into your life crime. He also made an assessment that you were a low risk for violence in the community. Found that your Psychopathy Checklist, Revised, your PCL-R, your clinical - your History of Clinical Risk-20 or the HCR-20 and the Level of Service/Case Management Inventory were all found to be in the very low or low range of risk potential. And he found no evidence of mental illness or substance abuse dependence. And he said you made no excuses. He said that you had reasonable insight and self-awareness into your responsibility for your life crime and some dynamics of thought, feelings, and motives, which impelled your behavior. In discussing the crime, he said that you were under physically - under stress physically, emotionally, and mentally. You were in the living room attempting to get Derrick ready to go. And his crying was incessant. And there was nothing you could do to stop him. 'I ended up shaking the life out of him in a fit of rage. I took my anger out on him. I did it out of ignorance. I could not swallow my pride and ask for help. I was afraid of looking incapable. I have been studying this book on the subject of shaken baby syndrome, and it has given me some insight. I have a hard time talking about it, because it would seem like making an excuse. And I look back and say there is no excuse. But I have learned that what caused this has reasons that are common, in the sense that there was an unwanted pregnancy and a relationship that leads them to being unloved and not accepted. And that sets the stage for abuse.' "
The Board granted parole, finding petitioner does "not pose an unreasonable risk of danger to society or a threat to public safety." Although the commitment offense was committed in a "very cruel manner," the Board noted that "[m]any years have passed" during which time petitioner demonstrated a suitability for parole. Petitioner had no prior record of violence or crime. The Board's presiding commissioner said of petitioner, "You're at an age that reduces the probability of recidivism. Relatively young at the time of your life crime, and you've significant[ly] matured. You've been involved in institutional activities that indicate an enhanced ability to function within the law upon your release." The Board, however, expressed concern about petitioner returning to a very small, rural town where the community knows he had killed his infant son. Thus, the Board decided to release him to a parole division in the San Francisco Bay Area.
The Governor's Decision
In November 2014, the Governor reversed the Board's decision to parole petitioner. Because this decision is the focal point of our review, we quote the Governor's reasoning in its entirety:
"The Board of Parole Hearings found [petitioner] suitable for parole based on his acceptance of responsibility, remorse, lack of prison misconduct, lack of violent criminal history, participation in self-help classes, staff support, vocational achievements, psychological evaluation, and age.
"I acknowledge [petitioner] has made efforts to improve himself while incarcerated. He has only been disciplined once for serious misconduct during his 24-year incarceration. He has completed vocational training programs and received positive reviews from his work supervisors. He has completed self-help programs including Stress Management, Thinking Errors, and parenting classes. I commend [petitioner] for taking these positive steps. But they are outweighed by negative factors that demonstrate he remains unsuitable for parole.
"[Petitioner]'s crime was reprehensible. He physically abused his 10-week-old son for nearly half of his short life, shaking, squeezing, and hitting him. [Petitioner] hit and squeezed [Derrick] with such force that he fractured over 10 of [Derrick]'s ribs and left bruises on his upper body and head. Family members and neighbors noticed bruising on [Derrick]'s face during the month before his death. It is difficult to imagine that any parent would treat his own child like this, especially one so young and vulnerable. I note that several of [Derrick]'s loved ones, including his mother, wrote moving letters that spoke of the devastating and long-lasting impact this crime had on them.
"[Petitioner]'s explanations for why he murdered his 10-week-old baby are insufficient. He told the Board at his 2014 parole hearing that he was experiencing a great deal of work-related stress at the time of the crime and that his wife's unplanned pregnancy was 'very overwhelming.' He said [Derrick] threatened his independence and he 'ended up despising him for that.' He reported that he never had a close relationship with [Derrick], took it personally when [Derrick] cried around him, and felt jealous of the infant because he interfered with time that [petitioner] expected to spend with his wife. He claimed that his pride prevented him from asking for help and he feared what others would think if they knew he was struggling. Instead, he harbored his feelings of anger and took them out on his young baby. [Petitioner] told the Board that he knew shaking [Derrick] could harm him, but that he did not care.
"These explanations do not adequately address why [petitioner] physically abused and murdered his son. [Petitioner] was experiencing significant stress in his life. But many people face similar stress and do not respond by inflicting physical abuse on a helpless child. [Petitioner] was not under the influence of any narcotics during this period and understood the consequences of his actions. Yet, he did nothing to remove himself from the situation or to stop the abuse. [Petitioner] has failed to explain why he thought directing his rage toward his baby was more acceptable to him than admitting to others that he was having a difficult time parenting and handling the various stresses in his life. Until [petitioner] can better explain why he abused his 10-week-old son and ultimately killed him, I do not believe he is prepared to be released."
The Governor's decision concluded, "When considered as a whole, I find the evidence shows that he currently poses an unreasonable danger to society if released from prison."
Petitioner's Habeas Corpus Petition in the Superior Court
To challenge the Governor's decision, petitioner filed a petition for writ of habeas corpus in the Lassen County Superior Court. The petition was denied in March 2015 on grounds that: "The governor's decision recites his consideration of the record leading to his conclusion that the petitioner remains currently dangerous to the public if released from prison; specifically, that petitioner did nothing to remove himself from the situation (experiencing significant stress, jealousy of the 10-week old victim, lack of a close relationship with his child and venting his feelings of anger against the infant)."
In April 2015, petitioner filed in propria persona a petition for a writ of habeas corpus in this court. We requested that the Attorney General submit an informal written response. (Cal. Rules of Court, rule 8.385(b)(1).) Thereafter, this court issued an order to show cause and ordered the appointment of counsel. The Attorney General filed a return and petitioner filed a traverse. Petitioner also filed a motion for calendar preference that we granted.
DISCUSSION
A.
Standards Governing Parole Decisions by the Board and Governor
As the California Supreme Court has explained, "The applicable statutes provide that the Board is the administrative agency within the executive branch that generally is authorized to grant parole and set release dates. ([Pen. Code,] §§ 3040, 5075 et seq.) The Board's parole decisions are governed by section 3041 and Title 15, section 2281 of the California Code of Regulations (Regs., § 2230 et seq.). Pursuant to statute, the Board 'shall normally set a parole release date' one year prior to the inmate's minimum eligible parole release date, and shall set the date 'in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public . . . .' (§ 3041, subd. (a), italics added.) Subdivision (b) of section 3041 provides that a 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, and that a parole date, therefore, cannot be fixed at this meeting.' (Italics added; see [In re] Rosenkrantz [(2002)] 29 Cal.4th [616,] 654.)
"Title 15, Section 2281 of the California Code of Regulations sets forth the factors to be considered by the Board in carrying out the mandate of the statute. The regulation is designed to guide the Board's assessment of whether the inmate poses 'an unreasonable risk of danger to society if released from prison,' and thus whether he or she is suitable for parole. (Regs., § 2281, subd. (a).) The regulation also lists several circumstances relating to unsuitability for parole—such as the heinous, atrocious, or cruel nature of the crime, or an unstable social background; and suitability for parole—such as an inmate's rehabilitative efforts, demonstration of remorse, and the mitigating circumstances of the crime. (Regs., § 2281, subd. (d).) Finally, the regulation explains that the foregoing 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.' (Regs., § 2281, subds. (c), (d).) The Governor's power to review a decision of the Board is set forth in article V, section 8, subdivision (b) of the California Constitution." (In re Lawrence (2008) 44 Cal.4th 1181, 1201-1203 (Lawrence), fn. 5 omitted; fns. 6-8 retained and renumbered.) The Board exercises "great" discretion in determining suitability for parole. (Id. at p. 1204.)
"These factors 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.' (Regs., § 2281, subd. (b).)"
"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.' (Regs., § 2281, subd. (c)(1)-(6).) This subdivision further provides that 'the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel.' (Regs., § 2281, subd. (c).)
"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 executionstyle 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. (Regs., § 2281, subd. (c)(1).)"
"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.' (Regs., § 2281, subd. (d)(1)-(9).)"
The Lawrence court also noted "that the broad discretion to be granted to the Board also exists with regard to decisions rendered by the Governor. ([Rosenkrantz, supra, 29 Cal.4th] at p. 677.) Although 'the Governor's decision must be based upon the same factors that restrict the Board in rendering its parole decision' (id. at p. 660), the Governor undertakes an independent, de novo review of the inmate's suitability for parole. (Ibid.) Thus, the Governor has discretion to be 'more stringent or cautious' in determining whether a petitioner poses an unreasonable risk to public safety. (Id. at p. 686.) '[T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor. . . . It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole. As long as the Governor's decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court's review is limited to ascertaining whether there is some evidence in the record that supports the Governor's decision.' (Id. at p. 677, italics added.)" (Lawrence, supra, 44 Cal.4th at p. 1204.)
Nonetheless, "despite the broad authority granted to the Board and the Governor, and the limited nature of judicial review, a petitioner is entitled to a constitutionally adequate and meaningful review of a parole decision, because an inmate's due process right 'cannot exist in any practical sense without a remedy against its abrogation.' (Rosenkrantz, supra, 29 Cal.4th at p. 664.) Accordingly, the judiciary is empowered to review a decision by the Board or the Governor to ensure that the decision reflects 'an individualized consideration of the specified criteria' and is not 'arbitrary and capricious.' (Id. at p. 677.)" (Lawrence, supra, 44 Cal.4th at p. 1205.) Consequently, "when a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings." (Id. at p. 1212.)
Additionally, "evidence in the record corresponding to both suitability and unsuitability factors—including the facts of the commitment offense, the specific efforts of the inmate toward rehabilitation, and, importantly, the inmate's attitude concerning his or her commission of the crime, as well as the psychological assessments contained in the record—must, by statute, be considered and relied upon by both the Board and the Governor, whose decisions must be supported by some evidence, not merely by a hunch or intuition. By reviewing this evidence, a court may determine whether the facts relied upon by the Board or the Governor support the ultimate decision that the inmate remains a threat to public safety. A standard of review focusing upon the existence of some evidence supporting the determination required by statute does nothing more than ensure that the Board and the Governor have complied with the statutory mandate and have acted within their constitutional authority." (Lawrence, supra, 44 Cal.4th at p. 1213.)
The California Supreme Court reaffirmed "the deferential character of the 'some evidence' standard for reviewing parole suitability determinations" for Board and Governor parole decisions in In re Shaputis (2011) 53 Cal.4th 192, 198 (Shaputis II). The Shaputis II court noted that "[i]t is settled that under the 'some evidence' standard, '[o]nly 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 Board or] the Governor.' " (Id. at p. 210, quoting Rosenkrantz, supra, 29 Cal.4th at p. 677.) Thus, it is "clear that the inmate's current dangerousness is the crucial determination"—parole authorities were giving greater attention to lack of insight as a basis for this determination. (Shaputis II, at p. 217.) To this end, the California Supreme Court "discouraged narrow reliance on the circumstances of the commitment offense, untethered to considerations of the inmate's present risk to public safety, including the inmate's current state of mind." (Id. at p. 217.)
"Consideration of an inmate's degree of insight is well within the scope of the parole regulations. The regulations do not use the term 'insight,' but they direct the Board to consider the inmate's 'past and present attitude toward the crime' (Regs., § 2402, subd. (b)) and 'the presence of remorse,' expressly including indications that the inmate 'understands the nature and magnitude of the offense' (Regs., § 2402, subd. (d)(3)). These factors fit comfortably within the descriptive category of 'insight.' " (Shaputis II, supra, 53 Cal.4th at p. 218.) The Shaputis II court "expressly recognized that the presence or absence of insight is a significant factor in determining whether there is a 'rational nexus' between the inmate's dangerous past behavior and the threat the inmate currently poses to public safety." (Ibid.)
B.
The Governor's Decision
The Governor's decision articulates the correct standard for the exercise of his discretion where it notes: "The question I must answer is whether [petitioner] will pose a current danger if released from prison." In answering the question, the Governor's decision acknowledges the Board "found [petitioner] suitable for parole based on his acceptance of responsibility, remorse, lack of prison misconduct, lack of violent criminal history, participation in self-help classes, staff support, vocational achievements, psychological evaluation and age." And the decision commends petitioner for taking positive steps during his incarceration. Nonetheless, the Governor's decision concludes petitioner's positive steps are "outweighed by negative factors that demonstrate he remains unsuitable for parole."
In reversing the Board, the Governor's decision gives two reasons for the reversal: (1) the commitment offense, and (2) the unsatisfactory nature of petitioner's explanations for why he committed the murder.
1. The Commitment Offense
As the Governor notes, "[Petitioner]'s crime was reprehensible" and caused "devastating and long-lasting impact" on those who loved Derrick. (Return exhibit page 106) The record amply supports this characterization of the commitment offense. Petitioner repeatedly hurt his own infant son over the course of several weeks until he finally shook the infant to death. Derrick suffered broken bones, abrasions, and bruises before his death. The murder also inflicted deep suffering on Derrick's mother and other members of the family. Tellingly, Derrick's mother ended her relationship with petitioner immediately upon her reading of the autopsy report. The circumstances of the 1990 murder are tragic and gruesome.
Nonetheless, the reprehensible nature of an offense can be relied upon to deny parole only to the extent it is predictive of current dangerousness. As the California Supreme Court explained, "the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense." (Lawrence, supra, 44 Cal.4th at p. 1221.)
The Governor's decision does not articulate any nexus between the offense committed 26 years ago and any current dangerousness. Instead, as the Governor's decision acknowledges, petitioner has remained free of any serious conduct violation in prison. Petitioner also has demonstrated remorse for his crime, grown his vocational skills, and engaged in self-help work that has developed his understanding of the offense. Nowhere in the record can we find any indication the circumstances of the commitment offense predict Gaylord is dangerous now, more than two decades after his offense. Consequently, the circumstances of the 1990 murder by themselves do not support the Governor's reversal of the Board's decision. " '[T]he 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 to the statutory determination of a continuing threat to public safety.' " (In re Ryner (2011) 196 Cal.App.4th 533, 545 (Ryner), quoting Lawrence, supra, 44 Cal.4th at p. 1214.)
2. Petitioner's Explanations
The Governor's decision offers a second rationale for the reversal of the Board's decision. The decision states that "petitioner's explanations for why he murdered his 10-week-old baby are insufficient." To this end, the decision notes evidence in the record that petitioner explained about the offense that (1) he was under work-related stress, (2) overwhelmed by Jacqueline's unplanned pregnancy, (3) ended up despising Derrick for threatening petitioner's sense of independence, (4) took it personally when Derrick cried around him, (5) felt jealous because Derrick was taking up time petitioner had hoped to spend with his wife, and (6) feared humiliation if he told anyone about his struggles. These feelings culminated in an anger he took out on Derrick even though petitioner knew shaking could harm the infant.
The Governor's decision finds this panoply of reasons insufficient - not because they appeared untrue - but because they did not explain why petitioner engaged in murder under circumstances in which other people do not engage in violence. The decision observes petitioner "did nothing to remove himself from the situation or stop the abuse." The Governor's observations are accurate and his recitation of the litany of reasons given by petitioner for the crime are reflected in the record. However, the Governor does not tie any of these reasons to current dangerousness. Untethered from the issue of current dangerousness, the Governor concludes petitioner is not ready for release "[u]ntil [petitioner] can better explain why he abused his 10-week-old son and ultimately killed him."
Even under the highly deferential "some evidence" standard of review, the record does not support an inference petitioner either lacks understanding and acceptance of responsibility for the crime or any such deficiency indicates his current dangerousness. Instead, petitioner's psychological evaluation indicated he had "reasonable insight and self-awareness into his responsibility" for the murder and he "takes full responsibility for his behavior." Moreover, the psychological evaluation noted petitioner believes there was no reasonable motive or dynamic for his commission of the murder and has developed insight and self-awareness. Consequently, the psychological evaluation concluded petitioner represents a "low risk for violence."
The Governor's rationale that petitioner's explanations are insufficient is belied by a record indicating petitioner has taken full responsibility for the crime and acknowledged he committed it due to work-related stress, jealousy of the infant, pride in the appearance of independence, and resentment provoked by crying and unforeseen child-rearing demands. The Attorney General reiterates the Governor's rationale that petitioner lacks sufficient explanation, but points to no evidence in the record indicating a lack of awareness or, more importantly, a current dangerousness deriving from lack of insight. Instead, the record uniformly echoes the examining psychologist's conclusion that, "[g]iven [petitioner's] long standing belief that he does not find any description of dynamic or motive for his behavior to be reasonable, he has developed a workable insight and self-awareness about his violent loss of control." (Italics added.) Even if petitioner's explanations were inadequate, the Governor does not indicate what more petitioner could say, understand, or reason to satisfy the standard of a better explanation.
As this court has previously pointed out, murder is punishable precisely because it is homicide committed without excuse or justification. (People v. Frye (1992) 7 Cal.App.4th 1148, 1154.) And as the Sixth District has stated, "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 [I], 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." (Ryner, supra, 196 Cal.App.4th at p. 548.) --------
In short, the Governor's rejection of the adequacy of petitioner's explanation for the murder does not satisfy the statutory requirement that reversal of the Board's decision to grant parole be based on a determination of current dangerousness. (Pen. Code, § 3041, subd. (a).) The Governor's rationale, which relies on the sufficiency of petitioner's explanations, leaves current dangerousness unaddressed. Moreover, the record provides no support for a conclusion petitioner lacks insight into his offense so that he is currently dangerous more than 26 years after his offense. The record instead indicates petitioner's understanding of the factors that resulted in the murder, a long history of remaining free from misbehavior, and substantial personal growth and maturity. We therefore grant petitioner's habeas corpus petition and order the Board's 2014 parole decision reinstated. (In re Pugh (2012) 205 Cal.App.4th 260, 275-276; Ryner, supra, 196 Cal.App.4th at pp. 552-553.)
DISPOSITION
The Governor's decision reversing the Board of Parole Hearings' July 2014 decision granting Stacey Leland Gaylord's parole is vacated, and the Board of Parole Hearings' parole release order is reinstated.
/s/_________
HOCH, J. We concur: /s/_________
BLEASE, Acting P.J. /s/_________
NICHOLSON, J.