Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 107144A
McGuiness, P.J.
In 1991, John Flores received an indeterminate life sentence of 18 years to life for second degree murder with an enhancement for the use of a deadly weapon. On April 8, 2009, at his sixth parole hearing, Flores was found suitable for parole by the Board of Parole Hearings (Board). The Governor reversed that decision five months later. Flores filed a petition for writ of habeas corpus in the superior court challenging the Governor’s decision, and the superior court granted the petition, finding the Governor had failed to show Flores continued to pose an unreasonable risk to public safety. The People appeal, arguing the superior court’s order should be reversed because the Governor’s decision is supported by “some” evidence. For the reasons set forth below, we affirm the superior court’s order granting parole.
Factual and Procedural Background
1. The Commitment Offense/Probation Report
According to a September 5, 1991, probation report, then-24-year-old Flores and two women were at a park in Oakland on the night of August 13, 1990, and discussed stealing a car. The two women approached a teenage couple inside a nearby car, pulled knives on them, and forced them out. Flores approached another teenage couple that was leaning against the back of the car, put a gun to the head of 17-year-old George Garcia, and shot him. The other three teenagers were able to run away. Flores and his co-defendants drove away in the car and the two women discussed how they were going to sell the car stereo equipment. Shortly thereafter, they were stopped and arrested by police. Garcia died from a gunshot wound to the head.
Flores stated at the time of the probation report that he had been drinking continuously for two days and had consumed five quarts of malt liquor on the day of the crime. He “went with” the plan to steal the car because he “wanted one of the [co-defendants].” He stated, “What I did was to hit a man on the back of his head and the pistol discharged.... I didn’t mean for anyone to be hurt and certainly not killed.” He was “not trying to shift the blame on anyone” and it was “because of [his] stupidity, as well as others” that the victim died. He expressed deep remorse, asked how he would deal with knowing the pain he caused Garcia’s parents and the other teenagers, and stated he was committed to “doing things to change [himself].” He stated, “I refuse to get a hard heart or to be [a] party to anyone being hurt in the future. These things I know in my heart. That and the fact that the best thing I can do for the parents of George Garcia is to never ever take[] another drink.”
Following a plea, judgment was entered on June 27, 1991, convicting Flores of second degree murder (Pen. Code, § 187 ) with a gun use enhancement (§ 12022.5). He was sentenced to 18 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise stated.
2. The Parole Hearing and the Board’s Decision
On April 8, 2009, at Flores’ sixth parole hearing, (prior hearings in 2001, 2004, 2005, 2007 and 2008) the Board and the district attorney questioned Flores extensively regarding the commitment offense, his activities while in prison, his disciplinary, criminal, and family history, and his parole plans. Flores stated, among other things, that he was carrying a gun the night he committed the crime because he was going to East Oakland, “a very dangerous area, ” and to “the person... [he] was back then, that seemed like the logical thing to do.” He had been drinking “off and on” for approximately two days at the time. He walked over to the side of the car where Garcia was, and while holding the pistol with his finger on the trigger, grabbed Garcia, who was already on the ground, and swung down to hit him in the head. He intended to pick Garcia up and just hit him “so that... he couldn’t come after us.... I do know that by me having a gun it was always the possibility that someone would be harmed by it. But sir, it was never my intention to shoot anyone, let alone kill anyone. That’s exactly what I did.” He stated he felt “[e]xtremely terrible” about the “horrendous” crime he committed and the pain he caused Garcia’s family. He noted that Garcia “was only 17 years old” and that it was “[r]eprehensible” for him to take the life of young man for something like a car.
The Board stated it “got a little confused [while reading various reports] because one of the [female teenagers]... gave a statement [to police]... that [Flores’ co-defendant] had actually shot the victim. Explain that to me.” Flores stated he knew exactly to what the Board was referring but could not explain it “because [he] didn’t see what was going on at the time at the other side of the car.” Flores also did not know why Garcia was already on the ground when he got to him because his co-defendants had been on that side of the car and he had not seen what had occurred. When asked by the district attorney whether either of his co-defendants had brought a gun to the scene, he responded he had “no idea.”
The police report contains statements from the three teenagers who ran away after Garcia was shot. Garcia’s girlfriend, who apparently was the only individual who witnessed Garcia being shot, gave a statement to police that it was one of Flores’ female co-defendants, not Flores, who “put the gun up to [Garcia’s] head and pulled the trigger, ” shooting Garcia “on the left side of his head.”
Flores described his activities while in prison, including his involvement with Alternatives to Violence, Victim Offender Education Group, Fathers Behind Bars, Cage your Rage, the Impact program, Life skills, Parenting Group, Friends Outside Parenting, Children’s Holiday Festival, and American Red Cross Drive. He stated the Victim Offender Education Group was particularly difficult and he “hated it, but at the same time, it made [him] see things and to understand... the damage that [he] had caused to George Garcia and to his family, to [the other teenage victims]. I traumatized these people. I traumatized them.” He understood what he did to society, to his family, and to himself. He had made donations to various charities including a women’s shelter and the Boys and Girls Club and had received certificates in Salesmanship, Custom Service Specialist, Overcoming Early Childhood Trauma, Creating a Second Chance, proficiency in Furniture, Shop Sanders, Boring Machine, Band Saw, and Forklift Operator. He held various jobs in prison, including in the areas of quality control, machine operation, plumbing, painting, mill and cabinets, yard attendant clerk, electronics assembly, and furniture, and had received “exceptional work ratings.” He obtained his General Equivalency Diploma (GED), received “about 6, 000 [laudatory] chronos” for his ongoing involvement with Alcoholics Anonymous (AA), belonged to the Native American Spiritual Circle, participated in Anger Management, and was part of an Inmate Employability program, Toastmaster’s International, and the umpiring crew for softball and soccer. He had taken a course on successfully re-engaging in society and described his parole plans.
Flores had received seven “128s” for “Horseplay with Another Inmate, Horseplay, Out of Bounds, Out of Bounds, Failure to Report to Sick Call, Grooming, and Violating Emergency Procedures.” The last 128 was in September 2004. He had two “115s, ” “Pilferage from Canteen” in 1993 and “Not in Compliance with the Grooming Standards” in 1998. The district attorney asked Flores to describe what happened when he received his most recent 128 in September 2004. He responded that on a hot day, during water rationing, he saw a “bunch of people inside of the shower” and went in the shower. When an officer told him he needed to get out if he was not a kitchen worker, Flores told the officer he was not a kitchen worker and promptly got out of the shower.
A “128” is a custodial counseling report used “[w]hen similar minor misconduct recurs after verbal counseling or if documentation of minor misconduct is needed....” (Cal.Code Regs., tit. 15, § 3312, subd. (a)(2).) A “115” is a rules violation report form on which to document misconduct “believed to be a violation of law or... not minor in nature.” (Cal.Code Regs., tit. 15, § 3312, subd. (a)(3).)
Flores said he came from a “dysfunctional family” in which his mother, a single parent, was “liquored up” and not “even there” “for the most part” and was in violent relationships with men who were “equally without a clue.” He began stealing food when he was five years old because he was hungry. He was “sent all over the state of California while [his] mother went to recovery homes.” By the time she became sober, Flores was an adult and out of the house. Despite “all her faults, ” she was still his mother, and he loved her. When she suddenly passed away, “[a]ll the thoughts and insecurities, ” including feelings of abandonment, “came flooding back, ” and he was “so pissed off [he] couldn’t see straight, ” “was crushed, ” and “devastated.” During the “next few years [of] chaos, ” he became everything he “hated and despised.” He began “using drugs and drinking like crazy” and was “out of control.” “Then came the horrendous night of August 13, 1990. Even though it was never [his] inten[t]ion to shoot anyone, let alone kill anyone, that’s exactly what happened. [He] shot and killed George Garcia.” He stated he was not describing his childhood and family history because he was “trying to shift the guilt or the blame anywhere, because ultimately [he] made these bad decisions, [he] made these wrong choices.” He stated, “It all fell on me. I only want you to understand maybe a little bit of how I was thinking and how I got there.” Flores had three children who had been adopted by another family and were now adults, 22, 20 and 19 years of age. He had “[s]poradic” contact with them. He had friends who visited him regularly and his friends had become his family.
The deputy district attorney made a statement in support of parole, stating it was the fourth parole hearing she had attended and that Flores had “substantially improved his presentation and his research into his parole plans.” She continued, “I will note that I do commend him. I did have [a] discussion with him after the last Board hearing and made some suggestions to him... one of which was to write out his statements because he did have trouble speaking publicly.... [I had suggested] creating... binders with his job letters and responses and residential living... And... he did take to heart all those suggestions that—and I don’t—I very rarely give inmate suggestions at the end of hearings.... I will also note that the inmate at sentencing wrote a letter to the judge in which he expressed his remorse for the events, which has continued throughout. The Panel’s faced with a couple [of] things. This occurred in 1990, it’s 2009. How much time is enough?... He has remained relatively disciplinary free. The one 2004 128, which he’s explained to the Panel, is the only thing since I believe the 90s. He certainly had an unstable childhood, but that was [through no] fault of his own and I think he spoke well to the Panel about how that [a]ffected him and led to this life crime. One of the problems one always has with the life crime where they claim that they’ve tried to hit someone with a gun and it went off is the inmate’s insight and understanding. This is an interesting fact pattern... and I did pull the original files from our office, in which one of the females from the scene... [¶]... [¶] did place a gun in the other female’s [appellant’s co-defendant’s] hands. I have no idea why. There [are] some discrepancies in witness statements, but the autopsy does corroborate the inmate’s statement in that in fact it was a shot fired at a close range.... The inmate does admit that he had his finger on the trigger. The wound was one shot to the head. So based on what I’ve read from the fact pattern, this is probably the best statement that the inmate’s ever going to be able to give about what happened and I don’t anticipate that there’s any way that it would become a different statement. I will note that he’s at least not coming in saying it was an accident or a mistake, which are the two words that the district attorneys just don’t like to hear in relating to murders. So I guess I can say that the inmate has done everything I suggested he do to earn his way to parole and with that I’ll submit it.”
The Board granted parole. First, the Board considered the gravity of the offense, noting Garcia had died a “horrible death” when Flores shot him in the head and that the motive was “very trivial.” It noted that the three teenagers who were with Garcia were also victims of the crime, which was “calculated” in that Flores and his co-defendants had discussed taking the car. The Board “fully consider[ed]” Flores’ prior criminal history of burglary, grand theft and possession of stolen property, his “jail time, ” his “problematic relationship with [his] family, in particular [his] mother, ” and the lack of an ongoing relationship with his children “due to [his] circumstances in [his] life.” The Board further considered his “past inconsistencies about the crime—how the victim was shot, [his] past lack of insight. But on balance, despite these negative circumstances... [it found Flores was] suitable for parole because the positive aspects of [his] case heavily outweigh[ed] other considerations....”
Specifically, the Board stated that Flores had committed the life crime when there was significant stress in his life, including an unstable relationship with family members and heavy alcohol and drug use. Flores had consistently expressed remorse since the sentencing phase of his trial and at all of the parole hearings. He spoke of the victim by name, had an in depth knowledge about how his actions had affected the victim’s family, had actively participated in victim education courses, had a “realistic and positive” “mental attitude, ” and had “excelled in [his] institutional behavior.” Flores had been denied parole for one year on April 30, 2008, and had followed the recommendations the Board had made at the last hearing, “and then some, ” including remaining discipline free, having no disciplinary action for violence, obtaining positive chronos and proof of his GED, participating in self-help and therapy programs, and “upgrad[ing] vocationally.” He had worked steadily throughout his time in custody and had “always received exceptional work ratings.” He was a literary tutor, was involved in numerous charitable causes and sports, both as a player and as a licensed umpire. He was heavily involved with AA.
The Board noted that the most recent psychiatric evaluation showed that Flores was “pleasant, ” “cooperative, ” and “appropriate for the occasion, ” and that there were no mental health concerns. The only negative aspect was alcohol abuse, which was in sustained full remission. Test results for future violence placed him in the low/moderate range and showed he was “well below the low range of psychopathy, ” and “the doctor found nothing worthy of comment in a negative nature.” The likelihood of Flores being involved in any other type of crime fell within the moderate category. The doctor found Flores had consistently taken responsibility for the victim’s death and had changed over a period of time and with his participation in therapy and various work programs. The Board also noted that Flores had solid parole plans, including transitional housing, a job offer, marketable skills, and support from friends. The law firm that represented him —which the Board noted has “credibility” and “takes these kinds of matters very seriously”—was also committed to assisting him with the transition. The Board stated that in granting parole, it also considered the “lack of assaultive history as a juvenile, ” Flores’ current age, and the district attorney’s statement. The Presiding Commissioner of the Board stated he remembered Flores from the previous hearing when Flores was “almost there” and that he was “confident... that this Board ha[d] made... the right decision.”
3. The Governor’s Reversal
On September 4, 2009, the Governor reversed the Board’s decision to grant parole. The Governor noted he had considered various positive factors in reviewing whether Flores was suitable for parole. He noted, among other things, that Flores earned his GED, completed additional courses and vocational training and received certifications as a customer service specialist and for proficiency as a wood machinist. Flores had held various institutional assignments and availed himself of self-help and therapy, including AA, 12-Step Group, Common Destiny Lifer’s Organization, Lifeskills, Fathers Behind Bars, Basic Alternatives to Violence, Victim Offender Education Group, Peer Pressure, Self-Examination and others. He was commended for participating in the Native American Religious Program, assisting with AA fundraisers and the Children’s Holiday Festival, donating to various charities, being an officer and founding member of Toastmasters, refereeing various sports games, and coordinating Fathers Behind Bars seminars. He had received an award from Toastmasters as well as positive evaluations from mental health and correctional professionals over the years.
The Governor stated that despite the positive factors, there were five areas of concern. First, the second-degree murder was “especially heinous because it involved multiple victims, ” none of whom posed any threat to Flores. The motive for the crime—to prevent the victim from following them after the robbery—“was exceedingly trivial in relation to the magnitude of the offense that he committed.” Noting that the Board found significant stress to be a mitigating factor in his life offense, the Governor stated, “I do not view his voluntary and recreational use of drugs as significant stress that would excuse his violent conduct.”
Second, the Governor was concerned that Flores “has not yet gained sufficient insight into or accepted full responsibility for the murder because he has continuously minimized his actions in the offense by claiming that it was an accident.” The Governor set forth the explanations Flores had given to his mental health evaluators in 1996, 2001, 2006 and 2008, to his Life Prisoner evaluator in 2001, and to the Board in 2009. The Governor stated that Flores’ “numerous and varying explanations for the murder are not consistent with the facts contained in the record, which indicate that Flores placed the gun at the victim’s head, shot him, and that the victim then fell to the ground.” He stated, “This is troubling because Flores cannot ensure that he will not commit similar crimes in the future if he does not completely understand and accept full responsibility for his prior offense.
Third, the Governor was concerned with Flores’ 2008 mental health evaluation, which rated him a low-moderate risk for future violence and a moderate risk for general recidivism. The Governor stated, “The fact that his most recent evaluator gave him multiple elevated risk ratings, combined with the evaluator’s concerns, indicates that Flores still poses an unreasonable risk of danger if released to the community at this time.”
Fourth, the Governor was troubled by the fact that Flores was counseled for negative behavior in 2004. The fact that he “engaged in misconduct so recently demonstrates that he is not yet ready to conform his conduct within society’s laws and comply with the conditions of parole.” Fifth, the Governor stated, “the instability of his relationships continues to be a factor in Flores’ life. As the 2009 Board noted, ‘[Flores does] have an unstable social history... [and he has] problematic relationships. One in particular of significance was a problematic relationship with [his] family, in particular [his] mother. [He has] not had an ongoing relationship with [his] children due to [his] circumstances in [his] life....’ ” The Governor concluded, “The gravity of the crime supports my decision, but I am particularly concerned by the evidence that Flores still minimizes his prior criminal conduct and has not accepted full responsibility for his offense, and by the evidence that he is still either unwilling or unable to conform his conduct to the rules. I am also concerned by his recent elevated risk ratings and his continuing struggles in forming stable relationships. The evidence indicates that Flores still poses a risk of recidivism and violence and that his release from prison at this time would pose an unreasonable risk to public safety.”
4. The Superior Court’s Order
In a 23-page-order filed September 1, 2010, the superior court vacated the Governor’s reversal and addressed the five factors on which the Governor had relied. First, citing case law for the proposition that the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public, the court “assume[d]” the life crime was “especially heinous, ” “ignore[d] any factors in mitigation, and move[d] on to the other articulated factors that the Governor cited as supporting his decision.”
Second, the court found there was no evidence Flores lacked insight into his commitment offense, or that he “maintained that his actions were an accident at the time of the 2009 hearing.” Flores “stated [at the 2009 parole hearing] as he had in the past, that he had his hand wrapped around the gun and had his finger on the trigger, when he straddled the victim and swung down to hit the victim on the head, and the gun discharged. [Flores] further explained that his intention at that point had been to hit the victim so the victim could not come after them, not to shoot or kill the victim. Further, [Flores] told the Board that he knows that because he had a gun there was always a possibility that someone could be harmed by it, and although he did not intend to kill or shoot anyone that is exactly what he did.” The court cited evidence showing Flores was remorseful from the time he was sentenced and found there was “absolutely no evidence that [Flores] has not accepted full responsibility for his crime.” The court noted there were “minor variations” in Flores’ version of events “over the years” beginning in 1996 but that “stale psychological assessments” do not “supply some evidence justifying the Governor’s conclusion... [citation]” and that in any event, any “minor variations” in Flores’ description of how the crime occurred did not “support the finding that [he] lacked insight or failed to accept responsibility for his crime, let alone that [he] is currently dangerous, especially in light of his post conviction record.”
Third, the court found there was no reasonable nexus between the 2004 counseling for showering during water rationing and his current dangerousness. Flores’ disciplinary history was “minimal, and none of the violations were for violent behavior.” Flores had “followed all of the recent directives by the Board at his 2008 hearing, and [his] long-standing participation in self-help, vocational and educational programs supports the finding that [he] will conform to society’s rules and conditions of parole release. As such, the minor misconduct does not support the view that [he] currently poses an unreasonabl[e] risk to the public if released on parole.”
Fourth, the court found the Governor “took information from the psychological evaluation out of context, and ignored other information in the report.” The low to moderate rating for risk of future violence was based on historical facts that were not amenable to change, and Flores received high marks in all other areas determinative of the risk of future violence, including “good insight into the factors leading up to the offense, ” no “antisocial mindset, ” no “significant impulsivity, ” and no symptoms of mental illness. According to the evaluator, Flores had been responsive to self-help, and although he could encounter some difficulties reinstating into society given the length of incarceration, and a “a possible destabilizer would be a return to drugs and alcohol, ” his long-standing participation in AA and his plans to participate in a residential program were likely to assist him on parole. The moderate risk for general recidivism was “largely historical” and the Governor ignored the factors that decreased his risk, including his “current employment status, his excellent performance at work, ability to interact well with peers and supervisors, his recent participation in several organized activities, his positive activities, positive use of his time while incarcerated, the lack of an alcohol or drug problem currently, his lack of antisocial mindset, and his positive opinion towards future supervision and the conventions of society.” The negative personality traits and behavioral markers the Governor cited under the “psychopathy” category were, according to the evaluator, based on Flores’ “ ‘presentation over lifetime rather than his current presentation’ ” and did not support the Governor’s concern that Flores currently posed an unreasonable risk to the public.
As to the fifth and final factor, the court stated, “the Governor cited [Flores’] purported ‘continuing struggles in forming stable relationships’ as evidence indicating [Flores’] current unreasonable danger potential. The apparent nexus of this finding to [Flores’] current dangerousness is that in the L/S/CMI absence of parental and familial support was one of the factors that increased the risk of recidivism. However, there is no evidence in the record supporting the finding that [Flores] struggles forming stable relationships.”
The Governor filed a motion to stay the superior court’s order granting Flores’ petition for writ of habeas corpus. The superior court denied the motion on September 22, 2010. The Governor filed a writ of supersedeas in this Court, which this Court denied on September 30, 2010. According to Flores, he was released on parole in October 2010.
The People do not dispute this fact.
Discussion
1. Standard
The decision whether to grant parole is an inherently subjective determination (In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz)) that is guided by a number of factors identified in Penal Code section 3041. (Rosenkrantz, 29 Cal.4th at p. 653; Cal.Code Regs., tit. 15, §§ 2281, 2402.) The Board’s regulations set forth nine factors tending to show suitability for release on parole: (1) the absence of a juvenile record; (2) a history of reasonably stable social relationships with others; (3) tangible signs of remorse; (4) the commission of the crime resulted from significant stress, especially if the stress had built over a long period of time; (5) battered woman syndrome; (6) a lack of a history of violent crime; (7) increased age, which reduces the probability of recidivism; (8) marketable skills and reasonable plans for the future; and (9) responsible institutional behavior. (Cal.Code Regs., title 15, § 2402, subd. (d).) Factors tending to demonstrate unsuitability for release on parole include the inmate’s: (1) commission of the offense in an especially heinous, atrocious, or cruel manner; (2) previous history of violence; (3) unstable social history; (4) prior sadistic sexual offenses; (5) lengthy history of severe mental problems; and (6) serious misconduct in prison or jail. (Cal.Code Regs., title 15, § 2402, subd. (c).)
Once the Board has made a decision regarding a particular inmate’s suitability for parole, the Governor is authorized to review the decision. (Cal. Const., art. V, § 8, subd. (b).) However, “[t]he 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.)
On appeal, “because the paramount consideration for both the Board and the Governor... is whether the inmate currently poses a threat to public safety, and because the inmate’s due process interest in parole mandates a meaningful review of a denial-of-parole decision, the proper articulation of the standard of review is whether there exists ‘some evidence’ that an inmate poses a current threat to public safety, rather than merely some evidence of the existence of a statutory unsuitability factor, ” to support the parole decision. (In re Shaputis (2008) 44 Cal.4th 1241, 1254 (Shaputis).) We may not substitute our own judgment for that of the Board or the Governor and may not reweigh the evidence, resolve conflicts in the evidence or consider whether the evidence establishing suitability for release outweighs the evidence supporting denial of release. Rather, we may inquire only whether there is some evidence in the record before the Board or the Governor supporting the determination that an inmate is a current threat to public safety and therefore unsuitable for release. (In re Lawrence (2008) 44 Cal.4th 1181, 1228 (Lawrence).) “If the decision’s consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner’s petition for writ of habeas corpus and should order the Board [or the Governor] to vacate its decision denying parole....” (Rosenkrantz, supra, 29 Cal.4th at p. 658.)
While this standard is “highly deferential, ” requiring just a “modicum of evidence, ” it “certainly is not toothless.” (Lawrence, supra, 44 Cal.4th at pp. 1204, 1210, 1226.) Although we are required to give deference to the decisions of the Board and Governor, we must also give those decisions a meaningful level of review that goes beyond simply deciding whether a single unsuitability factor exists. “[I]n light of the constitutional liberty interest at stake, judicial review must be sufficiently robust to reveal and remedy any evident deprivation of constitutional rights. If simply pointing to the existence of an unsuitability factor and then acknowledging the existence of suitability factors were sufficient to establish that a parole decision was not arbitrary, and that it was supported by ‘some evidence, ’ a reviewing court would be forced to affirm any denial-of-parole decision linked to the mere existence of certain facts in the record, even if those facts have no bearing on the paramount statutory inquiry. Such a standard, because it would leave potentially arbitrary decisions of the Board or the Governor intact, would be incompatible with our recognition that an inmate’s right to due process ‘cannot exist in any practical sense without a remedy against its abrogation.’ [Citations.]” (Lawrence, supra, 44 Cal.4th at pp. 1211-1212.) “[U]nder the statute and the governing regulations, the circumstances of the commitment offense (or any of the other factors related to unsuitability) establish unsuitability if, and only if, those circumstances are probative of the determination that a prisoner remains a danger to the public. It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public.” (Id. at p. 1212; see also In re Lee (2006) 143 Cal.App.4th 1400, 1409 [“Some evidence of the existence of a particular factor does not necessarily equate to some evidence the parolee’s release unreasonably endangers public safety”].)
2. Application
In light of the record here, the grounds relied upon by the Governor do not support his reversal of the Board’s grant of parole. We therefore affirm the superior court’s order granting Flores’ petition.
a. The five factors
1. Gravity of the offense
With respect to the gravity of the offense, the Supreme Court in Lawrence, supra, held: “[A]lthough the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner’s pre- or postincarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner’s dangerousness that derive from his or her commission of the commitment offense remain probative of the statutory determination of a continuing threat to public safety.” (44 Cal.4th at p. 1214.) Here, the Governor’s decision to reverse the Board’s grant of parole was not based solely on the gravity of the offense, and the Governor did not articulate such a nexus to Flores’ current dangerousness. Rather, the Governor found that the commitment offense, as it related to the other articulated factors, was probative of Flores’ current risk of danger to the public. As we discuss below, the record does not establish that there is something else in Flores’ “pre- or postincarceration history, or his... current demeanor and mental state” (ibid.) that renders the nature of the commitment offense still probative of his current risk to society. Thus, even assuming, as the superior court did, that the commitment offense was especially heinous and that there were no factors in mitigation, we conclude the gravity of that offense does not, in this case, provide some evidence of current dangerousness to the public.
2. Lack of insight
Although “lack of insight” is not mentioned in the regulations as a factor showing unsuitability for parole, in Shaputis, supra, 44 Cal.4th at page 1258-1261, the Supreme Court upheld the Governor’s reversal of a grant of parole based on the aggravated nature of the commitment offense, the inmate’s lack of insight into the offense, and his history of domestic violence. “[A] ‘lack of insight’ into past criminal conduct can reflect an inability to recognize the circumstances that led to the commitment crime; and such an inability can imply that the inmate remains vulnerable to those circumstances and, if confronted by them again, would likely react in a similar way.” (In re Ryner (2011) 196 Cal.App.4th 533, 547.) “Thus, an inmate's ‘lack of insight’ can provide a logical nexus between the gravity of a commitment offense and a finding of current dangerousness.” (Ibid.)
While insight is valuable, however, “we have to question whether anyone can ever fully comprehend the myriad circumstances, feelings, and current and historical forces that motivate conduct, let alone past misconduct. Additionally, we question whether anyone can ever adequately articulate the complexity and consequences of past misconduct and atone for it to the satisfaction of everyone. Indeed, the California Supreme Court has recognized that ‘expressions of insight and remorse will vary from prisoner to prisoner and... there is no special formula for a prisoner to articulate in order to communicate that he or she has gained insight into, and formed a commitment to ending, a previous pattern of violent behavior.’ (Shaputis, supra, 44 Cal.4th at p. 1260, fn. 18.)” Thus, “[e]vidence of lack of insight is indicative of a current dangerousness only if it shows a material deficiency in an inmate’s understanding and acceptance of responsibility for the crime. To put it another way, the finding that an inmate lacks insight must be based on a factually identifiable deficiency in perception and understanding, a deficiency that involves an aspect of the criminal conduct or its causes that are significant, and the deficiency by itself or together with the commitment offense has some rational tendency to show that the inmate currently poses an unreasonable risk of danger.” (In re Ryner, supra, 196 Cal.App.4th at pp. 548-549, fn. omitted.)
Here, there was no evidence to support the Governor’s conclusion that Flores “has not yet gained sufficient insight into or accepted full responsibility for the murder....” The Governor’s concern was based on his belief that Flores continued to “minimize[] his actions in the offense by claiming that it was an accident.” Flores did not, however, maintain at his 2009 parole hearing that his actions were an “accident.” Rather, he stated, as he had in the past, that he hit Garcia on the head and that the gun discharged, and that although it was not his intention to shoot or kill Garcia, “[t]hat’s exactly what [he] did.” He knew that by having a gun, “it was always the possibility that someone would be harmed by it, ” and he expressed remorse for the “horrendous” crime he committed against Garcia and his family and against “society as a whole.” In fact, even at the commencement of his incarceration, Flores demonstrated a willingness to accept responsibility for his conduct. At the time of sentencing, he acknowledged that it was “because of [his] stupidity” that the victim died. He expressed deep remorse and made a commitment to “change” and “never ever take[] another drink.” Throughout his incarceration, he participated in AA and maintained his sobriety. He took various victim education courses that helped him see things from the victim’s standpoint. He explained his dysfunctional and unstable upbringing but emphasized he was not using his upbringing as an excuse for his actions, because he was the one who made the “bad decisions” and “wrong choices, ” and stated, “It all fell on me.”
The Governor stated that Flores gave “numerous and varying explanations for the murder, ” but a review of the record shows that the Governor relied on statements Flores made to various prison staff, including mental health evaluators, dating as far back as 1996 (see Lawrence, supra, 44 Cal.4th at p. 1224 [rejected reliance on “stale psychological assessments” because “the passage of time is highly probative to the determination before [the court]”]), and that the discrepancies were minor and insignificant, especially in light of Flores’ full and consistent acceptance of responsibility for the crime over the years. Further, an inmate need not agree with or adopt the official version of a crime in order to demonstrate insight and remorse. (In re Palermo (2009) 171 Cal.App.4th 1096, 1110-1112 (Palermo), overruled on other grounds by In re Prather (2010) 50 Cal.4th 238, 252.) In Palermo, supra, the Court of Appeal concluded that the defendant’s “continuing insistence that the killing was the unintentional result of his foolish conduct” did not support the Board’s finding that he remained a danger to society, where the “defendant’s version of the shooting of the victim was not physically impossible and did not strain credulity such that his denial of an intentional killing was delusional, dishonest, or irrational.” (171 Cal.App.4th at p. 1112.) Similarly, here, Flores’ most recent mental health evaluator noted, “[a]lthough there have been some variations in his accounts of the crime in relation to some of the specifics, [Flores] has consistently stated... that his gun discharged when he was striking the victim in the head with the gun. He has also consistently taken responsibility for the victim’s death....” Flores’ version “was not physically impossible, ” and the district attorney stated that after having reviewed her office’s file on the case, Flores’ version of the events was corroborated by the autopsy of the victim. Flores has long taken full responsibility for the murder, consistently expressed remorse, and demonstrated a high degree of insight into the deficiencies in his character and behavior that led him to shoot Garcia. Thus, neither the minor variations in Flores’ version of events over the years nor his failure to provide a different explanation that satisfies the Governor demonstrates a lack of insight, let alone current dangerousness, particularly in light of his post conviction record.
Here, Flores’ explanation did not match the probation officer’s summary of how the events occurred.
3. Psychological evaluation
The Governor was concerned with Flores’ 2008 mental health evaluation, which rated him a low-moderate risk for future violence and a moderate risk for general recidivism. Specifically, he pointed out that even though the evaluator rated Flores in the “low” range for psychopathy, he also stated, “ ‘Some of the personality characteristics evidenced by Mr. Flores included some glibness, conning, lack of remorse, and shallow affect.... In regards to behavioral markers of psychopathy, Mr. Flores did present with significant failure on supervised release as well as some need for stimulation, parasitic lifestyle, early behavioral problems, impulsivity, irresponsibility, and criminal versatility.” The Governor, however, ignored the fact that the evaluator stated that “[t]he ratings of these characteristics are done based upon [Flores’] presentation over his lifetime rather than his current presentation.” (Italics added.) Thus, the risk ratings did not relate to his current dangerousness. Similarly, the factors that elevated his risk for violence and general recidivism were based on historical factors such as the nature of the commitment offense and the abuse and neglect he suffered during his childhood, which were “not amenable to significant change regardless of the number of years of his incarceration or the amount of ‘programming’ completed.” As to areas that were amenable to change, the evaluator stated Flores had gained good insight into the factors leading up to the offense, did not currently express or possess any antisocial mindset, did not suffer from any significant impulsivity, had no symptoms of mental illness, had been responsive to self-help and vocation programming, had excellent work performance, an ability to interact well with peers and supervisors, and feasible parole plans. The 2008 mental health evaluation therefore does not support the Governor’s determination that Flores currently poses an unreasonable risk to the public if released on parole.
4. Disciplinary action
The Governor was troubled by the fact that Flores was counseled for negative behavior in 2004, stating it “demonstrates that he is not yet ready to conform his conduct within society’s laws and comply with the conditions of parole.” “Neither the statute nor the regulations preclude consideration of a prisoner’s minor institutional misconduct in determining parole suitability.” (In re Reed (2009) 171 Cal.App.4th 1071, 1085.) In In re Reed, the Board properly relied on the inmate’s 128 because it violated a prior direction of the Board and because the inmate “had an extensive history of institutional misconduct.” (Id. at p. 1085, 1086.) Flores’ disciplinary history, however, is minimal, and none of the violations was for violent behavior. Further, he has had three parole hearings since he received his 128 for the shower violation in 2004, and he has followed all of the recent directives of the Board, including remaining discipline free. The minor misconduct therefore does not support the conclusion that Flores currently poses an unreasonable risk to the public if released on parole.
5. Unstable relationships
Finally, we must also reject the Governor’s conclusion that the “instability of [Flores’] relationships continues to be a factor in [his] life.” Flores had an unstable childhood—“through no fault of his own, ” as the district attorney pointed out—and therefore had a “problematic” relationship with his mother. He also did not have a relationship with his children, who had been adopted to other families while he was incarcerated. However, the Governor does not point to any evidence tending to show that Flores continues to struggle in forming stable relationships, or that this purported struggle evidences his current unreasonable danger potential. Thus, this factor does not support the Governor’s conclusion that Flores poses an unreasonable risk of danger to the public.
b. Remand
The People maintain, without argument or citation to authority, that if we find there was no evidence supporting the Governor’s decision, we should remand the matter “to the Governor for reconsideration.” Appellate courts have declined to adopt such a remedy. (See Lawrence, supra, 44 Cal.4th 1190, 1201, 1229 [the Supreme Court affirmed the Court of Appeal’s issuance of a writ vacating the Governor’s reversal of the Board’s decision, and reinstated the Board’s 2005 grant of parole]; In re Burdan (2008) 169 Cal.App.4th 18, 39 [the proper remedy is to vacate the Governor’s decision and reinstate that of the Board]; In re Vasquez (2009) 170 Cal.App.4th 370, 387 [same].) In light of our conclusion that the Governor’s decision is not supported by some evidence, we hereby vacate the Governor’s decision and reinstate the Board’s 2009 grant of parole.
Disposition
The superior court’s order granting Flores’ petition for writ of habeas corpus is affirmed. The Governor’s decision is vacated and the Board’s 2009 grant of parole is reinstated.
We concur: Siggins, J., Jenkins, J.