Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 80349
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
Petitioner Brederick Farr is presently serving a sentence of 30 years to life in state prison after pleading guilty to one count of first degree murder (Pen. Code, § 187) and one count of robbery (§ 211). The Board of Prison Terms (now the Board of Parole Hearings; hereafter Board) denied release on parole at the initial parole suitability hearing held in 2001. Farr challenged the Board’s decision by filing a petition for a writ of habeas corpus in the superior court, which granted the petition in its order of April 29, 2004. The court ordered the Board to conduct a new parole suitability hearing and precluded the Board from relying on the factors of Farr’s commitment offense, his need for therapy, and his unstable social history.
All further statutory references are to the Penal Code unless otherwise indicated.
Effective July 1, 2005, the Board of Parole Hearings replaced the Board of Prison Terms. (§§ 5075, 5075.1; Gov. Code, § 12838.4.)
The Board held a second parole suitability hearing on September 28, 2004, at which the Board determined that Farr was unsuitable for parole because he posed an unreasonable risk of danger or a threat to public safety if released from prison. On November 27, 2006, Farr filed a petition for a writ of habeas corpus in the superior court in which he again challenged the Board’s decision to deny parole. The court granted the petition in its order of June 15, 2007. The court found that the Board had violated the court’s prior order of April 29, 2004, by relying on the commitment offense in its decision to deny parole, and ordered the Board to hold a new hearing under the restrictions imposed in its prior order.
On appeal, the Attorney General contends that the superior court erred in granting the habeas petition, because (1) Farr’s petition for a writ of habeas corpus was untimely filed on November 27, 2006, more than two years after the Board’s September 28, 2004 decision to deny parole; and (2) some evidence supports the Board’s decision to deny parole due to Farr’s criminal history, his institutional behavior, and the psychological report. For reasons that we will explain, we find that some evidence supports the Board’s decision and therefore we will uphold the Board’s decision and reverse the superior court’s order.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Criminal History
Farr’s criminal history includes a 1976 juvenile offense, grand theft from a person, arising from a “purse snatch.” He served 10 months in the California Youth Authority for that offense.
As an adult, Farr was convicted of several offenses prior to the July 14, 1981 commitment offense. In 1979, he was arrested for committing second degree burglary and placed on probation for three years. In 1980, Farr was convicted of gambling and sentenced to six months probation and 45 days in county jail. Also in 1980, Farr pleaded guilty to receiving stolen property, carrying a concealed weapon, and carrying a loaded firearm in public. He was sentenced to one year of probation and 45 days in county jail. Farr was on probation at the time of the July 14, 1981, commitment offense.
B. The Commitment Offense
The commitment offense was described as follows in the police report that was read into the record at the September 28, 2004, parole suitability hearing: “[On] July 14th, 1981, at approximately 1:20 p.m., the cafeteria manager of [Singer-Link] Corporation in Sunnyvale, Cathy [Jardine] was seated behind a cash register counting the daily receipts. Hearing what sounded like gunshots behind her she turned around and observed the defendant [Farr] and co-defendant [Artarlio Dabney] approaching her. Both men were armed and wore bandanas around their faces and upon reaching Ms. Jardine, they removed approximately 800 dollars from her cash register drawer. Ms. Jardine at first thought the defendants were merely joking, and when they proceeded . . . to back away with the money, [she] saw them stop and took several steps toward them. One of the defendants then raised his arm as if he was going to fire his gun; therefore, Ms. Jardine stopped and threw the money she was carrying on the floor. At that time the defendants began to pick up the rest of the money until they observed another Singer-Link employee, victim, Robert Martin, approaching to assist Ms. Jardine. Defendant Farr then fired one shot from his 22-caliber handgun striking Mr. Martin in his temple. [Dabney] pointed his gun in a level direction away from the victim, Martin, and proceeded to attempt to fire three or four times. On each occasion, however, the gun misfired and both defendants then exited the building and escaped.”
During the September 28, 2004, parole suitability hearing, Farr asserted that he did not intend to shoot anyone and he was only assisting his crime partner, Artarlio Dabney, a former employee of Singer-Link Corporation, to commit the robbery. Farr explained that the gun had gone off while he was picking up money with one hand and waving the gun with the other hand without looking, in order to keep people at bay.
After a court trial, Farr was convicted in 1982 of first degree felony murder (§ 189) with the special circumstance that the murder occurred during a robbery (§ 190.2) and, according to the Attorney General, sentenced to “life without the possibility of parole.” The finding of a special circumstance and the sentence were set aside on appeal and the case was remanded to the trial court for further proceedings. On remand, Farr entered into a plea agreement. He agreed to plead guilty to first degree murder (§ 187) and robbery (§ 211) and the allegation of a special circumstance was stricken. The trial court imposed a sentence of 25 years to life on the murder conviction and a consecutive sentence of five years on the robbery conviction.
C. Institutional Behavior
From the time of his incarceration on the commitment offense in 1982 to the September 28, 2004, parole suitability hearing, Farr received 22 prison disciplinary reports, including 11 CDC 115 reports for serious rule violations and 11 CDC 128 reports for minor administrative violations. The serious rule violations included a refusal to obey orders in 1984, possession of an inmate-manufactured stabbing instrument in 1985, attempting to remove contraband in 1987, a cell fight in 1990, possession of alcohol in 1990, possession of alcohol in 1994 (two reports), manufacturing of alcohol in 1994, manufacturing of alcohol in 1996, manipulation of staff/suicide gesture in 1998, and refusal to obey orders on March 9, 2004.
“According to the California Code of Regulations, a CDC 115 documents misconduct believed to be a violation of law which is not minor in nature. A form 128 documents incidents of minor misconduct. (See [Cal. Code Regs., tit. 15] § 3312, subd. (a)(2) & (3).)” (In re Gray (2007) 151 Cal.App.4th 379, 389.)
The minor rule violations included performance of rules and regulations in 1986, failure to comply with release procedures in 1989, attempting to steal state property (linen) in 1990, possession of property in 1990, attempting to steal state laundry in 1991, possession of excess state clothing in 1992, failure to report in 1994, being out of compliance with grooming standards in 2003 (two reports), failing to comply with count procedures in 2003, and failing to comply with library procedures in 2004.
During his incarceration, Farr has obtained a GED and attended courses in vocational electronics and office machines. He has also worked in the library and the laundry. His self-help activities include participation in Narcotics Anonymous group sessions in 2003 and Alcoholics Anonymous group sessions in 1995.
D. Psychological and Life Prisoner Evaluations
No psychological report was included in the record. However, the transcript of the September 28, 2004 parole suitability hearing included a quotation from a psychological evaluation dated March 21, 2004, by Evelyn McGiness, a clinical psychologist. The evaluation states, “ ‘Over time [Farr’s] potential for violence appears to have decreased from the initial level but at this time his violence potential is still likely to be above average for someone in an inmate population. His potential for violence is considerably above average for the general population.’ ” The psychologist also recommended that Farr be disciplinary free until the time of his next parole suitability hearing.
The life prisoner evaluation by the state prison authorities recommended that prior to his release Farr would benefit from continuing to remain disciplinary free, continuing to participate in self-help therapy as available, upgrading educationally and vocationally, and developing marketable employment skills.
E. Board Hearing and Decision
After release on parole was denied at Farr’s initial parole suitability hearing in June 2001, Farr filed a petition for a writ of habeas corpus challenging the denial of parole. The superior court granted the petition and issued an order of April 29, 2004, in which the court ordered the Board to conduct a new parole suitability hearing and precluded the Board from relying on the factors of Farr’s commitment offense, his need for therapy, and his unstable social history.
The Board held a second parole suitability hearing on September 28, 2004. The Board acknowledged that the trial court’s order of April 29, 2004, required the Board to hold a new hearing “ ‘[a]t which the Board must be categorically precluded from relying on the facts of the commitment offense and particularly the special circumstances . . . .’ ” Additionally, the presiding commissioner stated that the Board would consider the facts of the commitment offense, “but in abiding by the Judge’s order we will not use them as a reason in making our decision.”
The Board advised Farr that it would consider “the crimes you were committed for, your prior criminal and social history, and your behavior and programming since your commitment.” The Board also stated that it had reviewed Farr’s file. During the hearing, the Board additionally considered Farr’s parole plans and heard argument from his attorney regarding Farr’s parole suitability.
At the conclusion of the hearing, the Board issued a three-year denial of parole. The denial was based on the Board’s determination that Farr was not suitable for parole because the record showed that he would pose an unreasonable risk of danger to society or a threat to public safety if he was released from prison. In giving its decision, the Board addressed the unsuitability factors that formed the basis for its decision to deny parole.
Regarding the commitment offense, the presiding commissioner stated, “[I] don’t understand how any Panel can come to conclusion without considering the commitment offense since without the commitment offense the inmate technically wouldn’t be here. So I’m going to assume then that the Judge didn’t want us to use that in our findings, but I will use it in the stating of the facts for the record.” The Board also described the commitment offense, stating, “First of all, we do have the offense, which was carried out in a violent manner. It was also carried out in a manner which demonstrated a disregard for human life.” But the Board also noted, “We did not use the commitment offense in making our decision pursuant to an order of the court.”
The presiding commissioner then explained that the Board’s decision to deny parole relied on Farr’s criminal history and the fact that he was on probation at the time of the commitment offense; his limited programming while incarcerated; his failure to develop marketable skills; his insufficient participation in self-help programs; his prison disciplinary history, which “failed to demonstrate evidence of positive change” and included a serious violation in March 2004, only six months prior to the parole suitability hearing; and the psychological evaluation, which indicated that his potential for violence was “ ‘considerably above average for the general population.’ ”
The Board commended Farr for receiving his GED, for attending Alcoholics Anonymous, being involved in vocational training, and having a span of six years between the most recent serious disciplinary report in 2004 and the previous serious disciplinary report in 1998. However, the Board found that these positive factors did not outweigh the parole unsuitability factors. The Board also determined that Farr needed additional time to complete programming “essential to adjustment” and recommended that Farr become disciplinary free and participate in self-help programs.
F. Habeas Proceedings
On November 27, 2006, Farr filed in superior court a petition in propia persona for a writ of habeas corpus. In his petition, Farr sought release on parole and attacked the validity of the September 28, 2004 Board decision to deny release on parole on three grounds: (1) the Board willfully disobeyed the court’s order by considering the facts of the commitment offense; (2) his plea agreement was involuntary and therefore void; and (3) the denial of release on parole violated his plea agreement.
On June 15, 2007, the trial court issued its order granting the habeas corpus petition. The court found that the Board had considered the commitment offense in violation of the court’s order of April 29, 2004, stating, “This was contemptuous behavior on the part of the Board in that the Board directly violated a prior order of the Court.” However, the court rejected Farr’s argument that the denial of parole violated his plea bargain. The court also rejected the Attorney General’s argument that the habeas corpus petition was untimely.
The trial court then ordered the Board “to provide [Farr] a new hearing which shall comport with due process as outlined in this court, as outlined in the April 29, 2004, order, and as outlined by the cases of In re Weider [(2006) 145 Cal.App.4th 570], In re Elkins [(2006) 144 Cal.App.4th 475], In re Lee [(2006) 143 Cal.App.4th 1400], In re Scott [(2005) 133 Cal.App.4th 573], In re Gray[, supra, 151 Cal.App.4th 379], In re Barker [(2007) 151 Cal.App.4th 346], and In re Lawrence [(2007) 150 Cal.App.4th 1511] . . . [¶] Any further violations of court orders will also be addressed in contempt proceedings, with sanctions payable to [Farr]. [Footnote omitted.]”
Following the trial court’s order, the Attorney General filed a notice of appeal and petitioned for a writ of supersedeas staying the trial court’s order of June 15, 2007. This court granted the petition and issued a writ of supersedeas on October 3, 2007, staying the order until final determination of the appeal.
III. DISCUSSION
On appeal, the Attorney General contends that the superior court erred in granting Farr’s habeas corpus petition because (1) the petition was untimely filed on November 27, 2006; and (2) some evidence supports the Board’s decision that Farr was unsuitable for parole. Because we find the issue of whether some evidence supports the Board’s decision to be dispositive, we need not address the procedural issue of the timeliness of Farr’s November 27, 2006, habeas corpus petition.
We will begin our analysis with an overview of the statutory scheme for parole suitability decisions.
A. The Statutory Scheme for Parole Suitability Decisions
The Board is authorized by section 3041 to determine whether a prisoner sentenced to an indeterminate prison term should be released on parole. Subdivision (b) of section 3041 provides in pertinent part: “The panel or the board, sitting en banc, shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.”
Section 3041, subdivision (a) provides in part: “One year prior to the inmate's minimum eligible parole release date a panel of two or more commissioners or deputy commissioners shall again meet with the inmate and shall normally set a parole release date as provided in Section 3041.5. . . . The release date shall be set in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public, and that will comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of parole release dates. The board shall establish criteria for the setting of parole release dates and in doing so shall consider the number of victims of the crime for which the inmate was sentenced and other factors in mitigation or aggravation of the crime.”
In determining whether the public safety requires the prisoner to serve a more lengthy period of incarceration rather than be released on parole, the Board is guided by the criteria listed in the California Code of Regulations. The Board must deny 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).) To assess that risk and determine the prisoner’s suitability for parole, the Board must consider “[a]ll relevant, reliable information available to the panel.” (Id., subd. (b).)
Included in the relevant information that the Board may take into account in determining suitability for parole are circumstances that have been termed “parole
suitability factors.” (Board of Prison Terms v. Superior Court (2005) 130 Cal.App.4th 1212, 1231.) The applicable regulations include the following parole suitability factors: (1) no juvenile record; (2) a stable social history; (3) signs of remorse; (4) the motivation for the crime was significant life stress; (5) battered woman syndrome; (6) no history of violent crime; (7) age; (8) realistic plans for the future; and (9) institutional behavior. (Cal. Code Regs., tit. 15, § 2402, subd. (d).) These parole suitability factors are not exclusive. Pursuant to California Code of Regulations, title 15, section 2402, subdivision (b), the Board also may consider “any other information which bears on the prisoner’s suitability for release.”
The Board must also consider “parole unsuitability factors,” which are circumstances that “each tend to indicate unsuitability for release.” (Cal. Code Regs., tit. 15, § 2402, subd. (c).) Parole unsuitability factors include: (1) the commitment offense (whether “the prisoner committed the offense in an especially heinous, atrocious or cruel manner”); (2) a previous record of violence; (3) an unstable social history; (4) sadistic sexual offenses; (5) psychological factors; and (6) serious misconduct in prison or jail. (Cal. Code Regs., tit. 15, § 2402, subd. (c).)
The parole suitability and unsuitability factors are “general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the [Board].” (Cal. Code Regs., tit. 15, § 2402, subds. (c) & (d).) Consequently, “the precise manner in which the specified factors relevant to parole suitability are considered and balanced” lies within the “discretion exercised by the Board in making its decision” regarding parole suitability. (In re Rosenkrantz (2002) 29 Cal.4th 616, 677 (Rosenkrantz).)
However, individualized consideration of a prisoner’s suitability for parole is required. “[T]he first responsibility of the parole authorities is to evaluate the suitability of an individual inmate for safe release, and, in making that assessment, to take into account all pertinent information and input about the particular case from the inmate’s victims, the officials familiar with his or her criminal background, and other members of the public who have an interest in the grant or denial of parole to this prisoner.” (In re Dannenberg (2005) 34 Cal.4th 1061, 1086 (Dannenberg).)
B. The Standard of Review
The Board’s ultimate decision regarding parole suitability is subject to limited judicial review under the “ ‘some evidence’ ” standard. (Rosenkrantz, supra, 29 Cal.4th at p. 652.) The “ ‘some evidence’ ” standard of review is “extremely deferential.” (Id. at p. 665.) The reviewing court may not weigh the evidence, resolve conflicts in the evidence, or consider whether the evidence establishing suitability for parole “far outweighs” the evidence showing unsuitability. (Id. at p. 677.) Thus, the court may not substitute its own judgment for that of the Board. “[T]he court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation.” (Id. at p. 658.) Review under the “some evidence” standard “simply ensures that parole decisions are supported by a modicum of evidence and are not arbitrary and capricious.” (Id. at p. 626.)
“[W]e . . . review the trial court’s decision and the contentions of the parties in light of the materials that properly were before the court.” (Rosenkrantz, supra, 29 Cal.4th at p. 677.) Where, as here, “the trial court’s findings were based solely upon documentary evidence, we independently review the record.” (Ibid.)
C. Analysis
On appeal, the Attorney General contends that the Board’s decision to deny parole must be upheld under the extremely deferential “some evidence” standard of review because some evidence supports the Board’s findings that Farr is unsuitable for parole based on the parole unsuitability factors of his criminal history, his serious misconduct in prison, his limited programming in prison, and the adverse psychological evaluation. Having independently reviewed the record, we find that some evidence supports the Board’s decision, as discussed below.
1. Criminal History
California Code of Regulations, title 15, section 2402, subdivision (b) provides in part, “All relevant, reliable information available to the [Board] shall be considered in determining suitability for parole. Such information shall include . . . past criminal history, including involvement in other criminal misconduct which is reliably documented . . . .” The parole unsuitability factors also include a previous record of violence: “The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age.” (Cal. Code Regs., tit. 15, § 2402, subd. (c)(2).) Conversely, a factor tending to show suitability for parole is the lack of a juvenile record: “The prisoner does not have a record of assaulting others as a juvenile or committing crimes with a potential of personal harm to victims.” (Id., subd. (d)(1).)
In the present case, the Attorney General contends that some evidence supports the Board’s finding that Farr was unsuitable for parole on the basis of his criminal history. We agree. Farr’s criminal history began in 1976 when, as a juvenile, he committed grand theft from a person. After serving 10 months in the California Youth Authority for that offense, Farr was convicted of five more offenses as an adult, including second degree burglary, gambling, receiving stolen property, carrying a concealed weapon, and carrying a loaded firearm in public. Farr was placed on probation three times and was on his third probationary period at the time of the commitment offense. The adult offenses are also notable for having been committed during the three-year period immediately preceding the commitment offense on July 14, 1981.
Thus, in this case Farr’s criminal history provides some evidence that he currently poses an unreasonable risk of danger to society if released from prison. Farr continued to commit crimes every year following his California Youth Authority commitment, despite serving three periods on adult probation. His criminal history culminated in the commitment offense, indicating that Farr’s criminality is particularly resistant to reform. This evidence supports a conclusion that Farr currently poses a risk to public safety if released from prison.
2. Institutional Behavior
Institutional behavior constitutes a parole unsuitability factor when “[t]he prisoner has engaged in serious misconduct in prison or jail.” (Cal. Code Regs., tit. 15, § 2402, subd. (c)(6).) On the other hand, parole suitability is shown where the prisoner’s “[i]nstitutional activities indicate an enhanced ability to function within the law upon release.” (Id., subd. (d)(9).)
The Attorney General contends that some evidence supports the Board’s findings that Farr’s institutional behavior tended to show that he was unsuitable for parole, because he earned numerous prison disciplinary reports for serious misconduct and administrative violations, and his in-prison programming was limited and did not result in a vocation or marketable skills.
We find that Farr’s extensive prison disciplinary record throughout his incarceration on the commitment offense constitutes some evidence of serious misconduct in prison. Between 1984 and 2004, Farr received 11 CDC 115 reports for serious rule violations and 11 CDC 128 reports for minor administrative violations. The serious rule violations included refusal to obey orders, possession of an inmate-manufactured stabbing instrument, an attempt to remove contraband, a cell fight, possession of alcohol (three reports), manufacture of alcohol (two reports), and manipulation of staff/suicide gesture. Most notably, Farr’s received his last CDC 115 report for a serious rule violation, refusal to obey orders, on March 9, 2004, just over six months before the parole suitability hearing on September 28, 2004.
We also find that some evidence supports the Board’s finding that Farr’s limited prison programming, including his failure to develop marketable skills and his insufficient participation in self-help programs, also showed that he was unsuitable for parole. While Farr obtained a GED and attended courses in vocational electronics and office machines, and had also worked in the library and the laundry, he had not completed a vocational program. His self-help activities during his approximately 22 years of incarceration on the commitment offense were limited to participation in Narcotics Anonymous group sessions in 2003 and Alcoholics Anonymous group sessions in 1995. Accordingly, there is some evidence that Farr’s institutional activities did not demonstrate “an enhanced ability to function within the law upon release.” (Cal. Code Regs., tit. 15, § 2404, subd. (d)(9).)
Based on this record, we find that there is some evidence that Farr’s institutional behavior showed that he was unsuitable for parole at the time of the September 28, 2004, parole unsuitability hearing.
3. Psychological Evaluation
“The applicable regulations also provide that the Board may consider psychological factors in determining parole suitability. Pursuant to [California Code of Regulations, title 15,] section 2402, subdivision (c)(5), a factor tending to show unsuitability is ‘[t]he prisoner has a lengthy history of severe mental problems related to the offense.’ Additionally, section 2402, subdivision (b), provides that the Board may consider “any conditions of treatment or control . . . .’ ” (In re Bettencourt (2007) 156 Cal.App.4th 780, 805 .)
In the present case, the record does not include any indication that Farr had a history of severe mental problems relating to the commitment offense or that any conditions of treatment or control apply. However, as the Attorney General points out, the evidence before the Board included an adverse psychological evaluation dated March 21, 2004, by Evelyn McGiness, a clinical psychologist. The evaluation concluded that “ ‘[o]ver time [Farr’s] potential for violence appears to have decreased from the initial level but at this time his violence potential is still likely to be above average for someone in an inmate population. His potential for violence is considerably above average for the general population.’ ”
We determine that the Board could properly consider the psychological evaluation by Evelyn McGiness because information regarding Farr’s high potential for violence obviously bears upon his suitability for release on parole. California Code of Regulations, title 15, section 2402, subdivision (b) states that “[a]ll relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include . . . 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.”
Therefore, we find that the psychologist’s opinion that Farr’s potential for violence is “ ‘considerably above average for the general population’ ” constitutes some evidence of Farr’s unsuitability for parole.
4. Consideration of the Commitment Offense
Farr implicitly concedes that some evidence supports the Board’s decision, as he does not attempt to argue in his respondent’s brief that any of the parole unsuitability factors found by the Board lack evidentiary support. He insists, however, that he is entitled to a new parole suitability hearing because the Board violated the April 29, 2004 trial court order by considering the commitment offense, which rendered the September 28, 2004 parole suitability hearing fundamentally unfair. Farr also argues that principles of res judicata require the Board to comply with the restrictions imposed by the April 29, 2004 order, since that order was never challenged by appeal or writ petition and thus has become final.
The Attorney General disputes these contentions, maintaining that the Board complied with the April 29, 2004 trial court order by repeatedly stating that the Board would abide by the order and would not use the commitment offense in making its parole suitability decision. The Attorney General also notes that the Board explained that it had stated the facts of the commitment offense for the record.
Since the time the trial court issued its order in April 2004 it has become well established that the trial court exceeds its jurisdiction when the court precludes the Board from considering all relevant, reliable information. (In re Weider, supra, 145 Cal.App.4th at pp. 590-591 (Weider); In re DeLuna (2005) 126 Cal.App.4th 585, 599-600 (DeLuna).)
In DeLuna, the Board denied parole on several grounds, finding, among other things, that the defendant’s commitment offense was especially cruel and callous, the defendant had an escalating criminal history, and he needed additional therapy. (DeLuna, supra, 126 Cal.App.4th at p. 590.) The trial court granted the defendant’s petition for habeas corpus and remanded the matter to the Board to reconsider its decision. In its remand order, the trial court precluded the Board from relying on any of its previous reasons to deny parole, including the gravity of the commitment offense. (Ibid.) On review, this court determined that the trial court had erred: “In attempting to thus curtail the Board’s exercise of discretion, the trial court has exceeded its authority. Section 2402, subdivision (b) provides in part: ‘All relevant, reliable information available to the panel shall be considered in determining suitability for parole.’ ” (DeLuna, supra, 126 Cal.App.4th at p. 599.)
The trial court in Weider similarly limited the Board’s consideration of parole unsuitability factors on remand, by instructing the Board that it “ ‘ “may not find [Weider] unsuitable for parole based on the same evidence and findings articulated at the [previous] hearing, [however] if new evidence is presented different from the evidence presented at the [previous] hearing, the [Board] may consider [Weider]'s suitability considering that new evidence, if any.” ’ ” (Weider, supra, 145 Cal.App.4th at p. 590.) This court determined that “[t]o the extent this part of the order precludes the Board from considering ‘[a]ll relevant, reliable information’ (§ 2402, subd. (b)), the court exceeded its jurisdiction. [Citation.]” (Ibid.) Accordingly, this court instructed that on remand the Board was to “reconsider its decision and to conduct a new hearing to reconsider defendant's suitability for parole using, without restriction, the factors deemed appropriate by the relevant statutes and regulations and in accordance with the requirements of due process.” (DeLuna, supra, 126 Cal.App.4th at p. 600.)
The decisions in DeLuna and Weider therefore establish that the trial court exceeds its authority when the court precludes the Board from considering the circumstances of the commitment offense, since the gravity of the commitment offense (specifically, whether “[t]he prisoner committed the offense in an especially heinous, atrocious or cruel manner”) is expressly included in the applicable regulations as a parole unsuitability factor. (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1).)
In this case, the trial court’s April 29, 2004 order and the Board’s September 28, 2004 parole hearing preceded the decisions in DeLuna and Weider. Assuming, therefore, that the Board improperly considered Farr’s commitment offense in contravention of the trial court’s order, and for that reason further assuming that the parole unsuitability factor of the commitment offense lacks evidentiary support, we nevertheless believe that the Board’s decision to deny parole may be upheld.
This court also determined in DeLuna that, pursuant to the California Supreme Court’s instruction in Rosenkrantz and Dannenberg, that “[i]f one or more of the factors lacks evidentiary support, the next questions are whether the Board would have denied parole based upon the supported factors and whether this result ‘satisfies the requirements of due process of law’ because the factors for which there is some evidence ‘constitute a sufficient basis supporting the . . . discretionary decision to deny parole.’ (Rosenkrantz, supra, 29 Cal.4th at p. 677.) We will uphold the denial of parole when it appears that the Board would have reached the same conclusion based on the supported factors and those factors individually or collectively justify that conclusion. (Cf. Id. at pp. 677, 682-683; In re Dannennberg, supra, 34 Cal.4th at p. 1071.)” (DeLuna, supra, 126 Cal.App.4th at p. 598.)
The California Supreme Court also instructed in Dannenberg that “[i]t is appropriate to affirm the Board’s decision, rather than remand the matter for further consideration by the Board, where it is clear the Board would have reached the same conclusion had it not made any error. ‘We may uphold the parole authority’s decision, despite a flaw in its findings, if the authority has made clear it would have reached the same decision even absent the error.’ (Dannenberg, supra, 34 Cal.4th at p. 1100)” (In re Andrade (2006) 141 Cal.App.4th 807, 818.)
We believe that the record in the present case makes clear that the Board would have reached the same conclusion, to deny parole to Farr, even without consideration of his commitment offense. As we have discussed, some evidence supports the Board’s decision to deny parole based on the combined parole unsuitability factors of his criminal history, his serious misconduct in prison, his insufficient prison programming, and the psychologist’s opinion that Farr’s “ ‘potential for violence is considerably above average for the general population.’ ” Therefore, we will uphold the Board’s September 28, 2004 decision to deny parole and we will reverse the trial court’s order of June 15, 2007, granting Farr’s habeas corpus petition. In determining Farr’s suitability for parole in future hearings, the Board may consider “ ‘[a]ll relevant, reliable information’ that is available to the panel, including the circumstances of the commitment offense.” (DeLuna, supra, 126 Cal.App.4th at p. 599.)
IV. DISPOSITION
The superior court’s order of June 15, 2007, granting defendant Brederick Farr’s petition for writ of habeas corpus is reversed, and the matter is remanded to the superior court with directions to enter a new order denying the petition.
WE CONCUR: MIHARA, J., duffy, J.