Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 81017
RUSHING, P.J.
I. Statement of the Case
In 2009, the Parole Board (Board) found that defendant Donald Furtado would not pose an unreasonable risk to public safety if released from prison and granted him parole. In 2010, then Governor Schwarzenegger reversed the Board’s decision. Thereafter, defendant filed a petition for habeas corpus challenging the Governor’s decision. The superior court granted the petition, vacated the Governor’s decision, reinstated the Board’s decision and directed defendant’s release within a week.
Respondent James Hartley, warden at Avenal State Prison, appeals from the order granting habeas relief. (Pen. Code, § 1507.) He claims the Governor’s decision is supported by some evidence and therefore the court erred in failing to uphold it. He claims that in reversing the Governor’s decision, the court misinterpreted and misapplied the law. Last he claims the court erred in ordering defendant’s release rather than remanding the matter back to the Governor to reconsider the Board’s decision in accordance with due process of law.
Although the habeas petition challenges the decision by the Governor, the respondent is the warden of the prison where Furtado is incarcerated. (Pen. Code, § 1477.)
We affirm the trial court’s order vacating the Governor’s reversal and reinstating the Board’s decision.
II. Background
The facts concerning the offense are derived from the probation report.
On July 22, 1981, police found the body of defendant’s aunt wrapped in two blankets in the trunk of a wrecked car on the side of a road in Milpitas. Police determined the car was registered to defendant’s aunt and then spoke to family members. Her brother, defendant’s father, had a nervous breakdown after hearing what happened. Defendant’s sister said defendant had called her for a ride, and when she picked him up, he said he had killed his aunt. Police then located and arrested him. After a time, he admitted the murder but could not remember any details about what happened. He later told the probation officer that his aunt had moved into a trailer on the family property. From then on, she got angry about little things and complained about defendant’s morals and girlfriend. He and his aunt had daily conflicts for over a year. The day of the offense, he drank some beers and smoked marijuana. He said his aunt grabbed him and started yelling, but he could not remember what happened after that until later, when he wrecked and abandoned the car.
The autopsy report stated that she had died from head injuries. She had 10 lacerations on her face and six on her scalp; and contusions on her chest, arms, abdomen, and left leg. Her nose and skull were fractured.
B. Defendant’s Personal History
Defendant was born in 1964 and was 16 when he killed his aunt. He was an only child but had four step-siblings. His parents were divorced, but the family continued to live together. Defendant completed the ninth grade and thereafter worked for three months unloading freight cars. He reported that he drank alcohol and smoked marijuana weekly since he was 15. Defendant had no chronic medical or psychological problems or diagnoses before the commitment offense except for a period of hyperactivity in the fifth grade, for which he took valium.
C. Defendant’s Prior Criminal History
In 1979, defendant robbed a 14-year old boy of his bicycle. He was placed on juvenile probation, which he successfully completed.
D. Defendant’s Youth Authority Record
Although still a minor, defendant was prosecuted for the killing as an adult and pleaded guilty to second degree murder. (Pen. Code, § 187.) Youth Authority (YA) staff then evaluated him. A staff psychologist found defendant to be nervous and depressed. Tests suggested a poor self-image, shyness, fearfulness, lack of confidence, and feelings of male inadequacy. The psychologist considered his antisocial behavior to be a way to hide his weaknesses. Defendant tended to deny his emotions and then act without reflection and use poor judgment. However, when emotional, he tended to lose control and become aggressive.
A staff psychiatrist reported that defendant was not delusional and did not have disordered perceptions. He was aware of his anger, which showed some insight into his behavior. However, she diagnosed defendant with adolescent antisocial behavior, adjustment disorder with depression, alcohol abuse in remission, attention deficit disorder with hyperactivity, and passive-aggressive personality traits. She opined that defendant presented a mild mannered appearance by disregarding his anger, which would accumulate and surface as overreactions to moderate precipitating events.
Defendant was placed at YA and remained there until 1986, when he was 22. At YA, defendant received four serious disciplinary citations for possession of marijuana, fighting, creating a disturbance, and attempted escape. He received intensive treatment programming for 26 months and individual and group counseling. He also received sexuality training, assertion stress training, and transactional analysis. Defendant finished high school and got his GED, started a college program, and was trained in landscaping, maintenance, basic electronics, CPR, advanced planning sciences, horticulture, basic welding, pest control, employability skills, carpentry, masonry, first aid, and culinary arts.
In 1986, YA requested that defendant be resentenced to prison. In a supplemental probation report, the probation officer reported that defendant had developed insight and believed his offense was largely the result of an inability to handle the stress of living with his girlfriend and being in an intimate relationship. He did not believe that his drinking was a significant cause. Nevertheless, the probation officer recommended prison rather than release on probation. After a hearing, the court resentenced defendant to prison term of 15 years to life.
E. Defendant’s Prison Record
Between 1987 and 2010, defendant successfully completed numerous vocational training programs in welding, milling and cabinetry, and janitorial services. He became a highly valued disability placement aide working directly with disabled inmates.
Between 1987 and 2001, defendant received minor citations (CDC 128 citations) for possessing contraband, forcing his way through a gate, disobedience, and failing to make his bed; he received major citations (CDC 115) for threatening staff, disrupting a work crew, failing to report to work, stealing food, and mutual combat.
Minor misconduct in prison is documented on a “CDC Form 128-A”; more serious misconduct or violations of the law are documented on a “CDC Form 115.” (Cal.Code Regs., tit. 15, § 3312.)
Until 2005, defendant participated in some self-help and substance abuse programming. He also participated in a voluntary counseling and prayer circle headed by a Native American spiritual leader at the prison and continued to do so after 2005.
F. Defendant’s Parole Reports, Psychological Evaluations, and Hearings
Although there were numerous reports and eight parole hearings before the Board granted parole in 2009, most of the reports and transcripts of the hearings are not part of the record before us. We summarize those that are.
1. The 1990 Parole Evaluation
In defendant’s first parole evaluation, a staff counselor reported that defendant, then 24, had accepted responsibility for his crime but did not discuss it in depth, explaining only that he blew up because of pressure from his aunt over his lifestyle and girlfriend. Defendant also explained that growing up, he had developed a passive-aggressive personality.
The counselor concluded that defendant had “mentally dissociated himself from the incident, ” accepted only that he and his aunt argued and he killed her, and otherwise exhibited little remorse. The counselor recommended further participation in self-help programs and vocational training.
2. The 1998 Psychological Evaluation
In 1998, a staff psychiatrist evaluated defendant, then 32. He found no significant mental health history. Summarizing the consensus of numerous previous reports, the psychiatrist stated that defendant did not suffer from any psychological disorder except substance abuse. Although he exhibited passive-aggressive and antisocial personality traits, defendant had declined offers of “Category X or Category T programming”—i.e., psychotherapy.
“A Category ‘T’ program is for male inmates with identified psychiatric problems requiring outpatient group therapy”; “a Category ‘X’ program is a 90–day psychiatric or psychological evaluation program.” (In re Powell (2010) 188 Cal.App.4th 1530, 1535, fns. 4 & 5; see Cal. Dept. of Corrections, Operations Manual, §§ 62080.11, 62080.12, p. 579; see (as of Jul. 20, 2011).)
The psychiatrist found defendant to be normal but guarded, vague, and evasive with passive-aggressive behavioral traits. However, defendant did not exhibit any signs of anti-social personality disorder. The psychiatrist found no evidence of present criminal thinking and noted that defendant had not had any significant disciplinary citations for some time. Defendant was reticent to discuss himself, which made it difficult to assess his level of remorse.
The psychiatrist opined that there was no underlying psychopathological cause of defendant’s crime; and although his substance abuse and personality structure may have facilitated it, they did not “predetermine” it. He concluded that defendant would pose a moderate risk if released.
3. The 2006 Psychological Evaluation and Parole Hearing
In a 2006 report, the psychologist found that defendant’s mental status in all areas was clear even without any mental health programming after YA. Concerning his offense, defendant told the psychologist that although he was intoxicated, the incident was “inevitable” because he could not escape his aunt’s attacks. He now felt “terrible” and “stained” for having killed her and would never find a “comfortable place” in his mind. If released, defendant planned to stay with his sister but seek a placement at the Delancey Street Foundation because of its supportive programming for inmates.
The Delancey Street Foundation is a residential self-help program for former substance abusers, ex-convicts, and homeless persons. (See Delancey Street Foundation (as of Jul. 20, 2011.)
The psychologist found defendant’s plans to be realistic and urged him to inquire about a placement. The psychologist believed defendant could maintain sobriety if released but recommended continued support through Alcoholics Anonymous (AA) and Narcotics Anonymous (NA).
At the 2006 parole hearing, defendant addressed the motive for his offense. He noted that the YA psychologists had diagnosed him with anti-social behavior, adjustment disorders, depression, and substance abuse in remission. He also read an excerpt from the police report concerning his father’s interview, in which his father explained that immediately after his sister moved to the family property, she took a dislike to defendant although he did nothing to her. She would yell and curse at him, call him names, and kick his bedroom door almost daily for no apparent reason. Her animosity grew worse over time, and he believed that his sister’s antagonism caused defendant to lose control.
At the hearing, defendant further explained that as a teenager, he did not know how to express his anger appropriately. He kept things inside, let them build up, and then, intoxicated and enraged, he killed his aunt to stop her abuse. He said that he did not ask his parents to intervene with his aunt because he was also struggling with being independent and tended to commiserate with his girlfriend. Defendant said that he now abhorred drugs and alcohol and could not tolerate those who use them. When asked about his favorite step in the AA program, he said it was making amends with those whom he had harmed, something he had tried to do with his family members, who were also victimized by his offense. He said he had not felt the same anger that he felt at that time again and had learned how to deal with his anger more appropriately.
Defendant expressed tremendous remorse for his crime and acknowledged that he had hurt everyone in his family. He said he could not change what had happened, and it would always be there. He said that if released, he planned to live with his sister and seek a placement at the Delancey Street Foundation. Defendant said he had a number of marketable skills and was very adaptable, which would enable him find employment.
The Board noted that in response to its 2003 recommendation of further self-help programs, defendant had participated in a “lifer program” correspondence course, six months of AA, and an alternative to violence program. Nevertheless, the Board denied parole for the eighth time. It cited the nature of the crime, defendant’s history of unstable and tumultuous relationships, and an unstable social life. Contrary to the positive psychological report, the Board found that defendant appeared to be detached, failed to show remorse, and minimized his offense. It further found that he failed to demonstrate sufficient insight into his offense and concluded that he needed psychotherapeutic programming to understand and learn to cope with stress in a nondestructive manner. Noting that the psychologist’s relatively benign risk assessment was based on participation in AA or NA programs, the Board pointed out that he had not participated in any substance abuse or self-help programming since 2005. The Board also found defendant’s parole plans to be unrealistic.
Defendant filed a petition for a writ of habeas corpus challenging the Board’s decision, but in April 2007, the petition was denied.
4. The 2008 Psychological Evaluation and Parole Hearing
In an August 2008 psychological report, the psychologist explained that she had administered three risk assessment tests, and all resulted in low risk assessment. Given these scores and defendant’s lack of any disciplinary citations and respectful attitude since 2001, the psychologists concluded that defendant would pose a low risk of danger if released.
One of the tests—the History-Clinical-Risk 20 (HRC-20)—has three separately scored components. On the historical component, defendant was rated a moderate to high risk of future violence because that component is based primarily on the historical facts that are not subject to change regardless of the amount of time a person has spent incarcerated. However, on the other two components—clinical and risk—defendant rated low risk.
The psychologist acknowledged defendant’s diagnosis of alcohol and marijuana dependence in controlled environments. However, she explained that that diagnosis was based solely on circumstances that existed before defendant was incarcerated but which no longer existed. Moreover, she noted that defendant had fully acknowledged his use of substances before the offense, he had participated in AA and NA early in his incarceration, and he now knew the 12-steps. The psychologist found that defendant was genuinely committed to sobriety. Given his actions, insight, increased maturity, commitment, and intent to stay at the Delancey Street Foundation if released, the psychologist found it likely that defendant would remain clean and sober if released.
The psychologist reported that defendant had spent much time thinking about his crime and coming to terms with its causes. Defendant had talked about his problems as a youth and how they contributed to his offense. She found that he demonstrated good insight into his past and current psychological functioning. Defendant had accepted full responsibility for his conduct, he expressed both remorse and regret, and now appeared committed to leading an exemplary life, whether in prison or out.
Finally, the psychologist stated that although defendant declined to discuss the fatal beating itself, he did not attempt to minimize the crime or his role. He did not blame or even accuse his aunt of abusing him, saying only that she had problems and had focused her anger on him. He now wished he had tried to help her instead of reacting and directing his anger, unhappiness, angst, and anger at her. The psychologist opined that defendant had made good use of the self-help programming in which he had participated.
At the hearing in November 2008, the Board denied parole based on the nature and seriousness of the commitment offense and defendant’s inadequate parole plans. Defendant filed a petition for a writ of habeas corpus challenging that decision. In August 2009, the superior court granted the petition and directed the Board to conduct a new hearing and to find defendant suitable for parole unless there was new evidence to support a finding of current dangerousness. The court also found that since defendant’s parole plans were realistic, the Board could not rely on that factor to deny parole absent new evidence on the issue that could support a finding of current dangerousness. On appeal from the trial court’s order, the only issue before this court was whether the court’s remand order impermissibly infringed on the Board’s authority in conducting a new parole hearing. We concluded that it did and directed the court to issue an order requiring only that the Board conduct a new hearing consistent with due process, considering all relevant evidence related to all relevant statutory and regulatory factors. (In re Furtado (Oct. 29, 2010, H034591) [nonpub].)
The transcript of this hearing is not part of the record.
We take judicial notice of our opinion. (Evid. Code, § 452, subd. (a).)
5. The 2009 Parole Hearing
While that appeal was pending, however, the Board conducted a regularly scheduled hearing in October 2009. No new psychological evaluation was prepared for the hearing.
At the outset, defendant, now 45, emphasized that he was completely responsible for his aunt’s death and deeply regretted it. He explained that as a teenager, he kept his anger inside, let it build, and did not try to address it. He said that because of his youth, he did not know how to deal with his aunt’s abuse and the feelings it generated, and he simply reacted to her. Defendant explained that as a result of the violence and anger management programs that he had participated in as well as his experience watching confrontations escalate in the yard at prison, he now as an adult dealt with things much differently. He had learned to meditate and tried to think about what makes him angry, understand its relative importance, and correct with an appropriate response. In this regard, he said that he had been counseling young inmates, which had helped him.
Defendant acknowledged that he abused alcohol and marijuana as a youth because he was a “nerd[]” and just wanted to fit in with the older kids. Defendant said he had been able to maintain his sobriety with the help of his spiritual group, where they discuss substance abuse, its impact, and its relation to criminal behavior. He also had participated in a 12-step AA program and explained that his favorite step was to make amends unless doing so would cause harm. He believed he had done his best to make amends with his family, including his father, who had died, because his family was hurt by his crime. He also had tried to show them how sorry he was, offered his love and support, and was willing to do anything they asked of him. He said that neither his father nor his sister harbored any ill feelings toward him and supported his release. He said that he had mostly forgiven himself but not completely.
Defendant explained that the most difficult AA step was the first one: beginning a process of introspection, giving up his know-it-all attitude, and accepting that he was not as smart as he thought he was and needed to mature. He said he had constantly tried to improve himself and believed that now his greatest strength was an ability to understand people and how they feel and have compassion for them. He acknowledged that his greatest weakness was losing faith in his future, which, under the circumstances, appeared dark.
Defendant asserted that he was ready for parole. He felt certain that he would be successful and said there was no chance he would ever commit a violent act again. Given his lengthy incarceration and coexistence with dangerous inmates who have no hope and nothing to lose if they are violent, he now understood that violence is a base response to unhealthy stimulus, and he did not think any problem could arise that he could not resolve by discussing and trying to work it out or by simply walking away from potential harm.
Concerning his parole plans, defendant acknowledged that the community had changed a lot during his 30 years of incarceration, and he opined that his most important task would be to learn how to deal with the unexpected events, especially bad circumstances that he might face. He reiterated his previous plans to live first with his sister and her husband but eventually at the Delancey Street Foundation because its programs helped ex-inmates rebuild their lives, and it had a no-nonsense approach to sobriety. He said he could probably work for his brother-in-law as a house painter or get a job in a fast food restaurant. However, he ultimately wanted to work with disabled people because over the years he had found it to be helpful and personally therapeutic. He realized, however, that finding such a job might be difficult given his background.
The district attorney urged the Board to deny parole because defendant remained an unreasonable risk of danger. He pointed to defendant’s disciplinary citations in prison and his history of substance abuse. He noted that defendant had not recently been participating in any self-help programming. He also pointed out the moderate-to-high risk score on one of the psychological tests. (See fn. 9, ante.)
After weighing the relevant suitability and unsuitability factors, the Board concluded that defendant currently did not pose an unreasonable risk of danger if released. Despite his crime, juvenile record, unstable relationships, substance abuse, and misbehavior in prison, the Board found that defendant was genuinely and sincerely remorseful, he had made amends with his family, he had forgiven himself, and he had dedicated himself to helping others, especially disabled persons. The Board noted defendant’s educational achievements; extensive vocational training; participation in self-help programs focused on managing anger and violence and combating substance abuse; and his long involvement in spiritual counseling. It found that as a result of this programming and training, defendant had gained insight into how and why he committed his offense and understood his weaknesses and strengths; he had been able to maintain sobriety and was committed to it; he had grown and matured; he had become well-spoken and well-disciplined; he had developed an excellent work ethic; and he had learned to function within prescribed rules. The Board found substantial support for these findings in the 2008 psychological report. The Board further considered defendant’s parole plans to be realistic and found him to be a good candidate for a placement at the Delancey Street Foundation. He also had secured interim housing with his sister, had numerous marketable skills, and was committed to sobriety.
G. The Governor’s Reversal
In reversing the Board’s decision, the Governor acknowledged a number of suitability factors. He noted defendant’s educational and vocational achievements, his participation in self-help programming and spiritual counseling, and his positive evaluations from mental health and correctional professionals. He also noted the support defendant had received throughout his incarceration from his family members and their willingness to provide a place for him to live upon his release, although he did not as yet have any job offers.
Nevertheless, the Governor concluded that defendant currently posed an unreasonable risk of danger if released. The Governor found that the crime was particularly heinous because defendant brutally killed a relative. He found that the manner of the killing was especially atrocious and cruel, noting that defendant hit the victim multiple times with a bat, severely damaging her head, which demonstrated exceptionally callous disregard for her suffering. The Governor also found that the motive for the crime was “inexplicable” in relation to the offense.
The Governor further found that defendant’s assertion that his aunt had abused him reflected an effort to shift blame to her. Doing so, the Governor further found, reflected an attempt to minimize his culpability, demonstrated a lack of insight into the circumstances leading to his crime, and thus revealed that defendant’s participation in self-help programming had been inadequate.
The Governor opined that defendant’s 2001 disciplinary citation for mutual combat involved the same type of careless and aggressive conduct as his offense and thus showed that he had not sufficiently addressed his anger through therapeutic programming or learned how to control it. In this regard, the Governor noted that defendant had not participated in any formal therapy or self-help programming since 2005. Given the impulsive nature of the killing, the Governor viewed the 2001 citation as evidence of defendant’s unwillingness and inability to follow rules and thus evidence that he was not yet ready to conform his conduct to the rules of society or obey the conditions of parole.
The Governor also noted that although defendant had “extensive drug abuse history” and although drugs and alcohol played a “significant” role in the offense, defendant still did not believe that his crime was caused by drugs and alcohol. The Governor found defendant’s denial revealed that his participation in substance abuse programming had been limited, minimal, and inadequate. This inadequacy undermined defendant’s alleged commitment to sobriety and thereby increased the possibility of a relapse in the community and the attendant risk of danger. This was especially so because the conclusion in the 2008 psychological report that defendant posed a low risk of danger was based in part on defendant’s continued abstinence.
H. The Superior Court’s Ruling
In granting habeas relief, the court found the Governor’s decision flawed because he had not considered the defendant’s age and immaturity at the time of the offense as mitigating factors or explained why he had not given those factors any weight. The court also found no evidence to support the Governor’s findings that (1) defendant tried to shift blame to his aunt; (2) the crime was inexplicable; and (3) defendant lacked insight. The court also rejected the Governor’s reliance on the inadequacy of defendant’s participation in programming and lack of current job offers.
III. Legal Framework for Parole Decisions
Penal Code section 3041 and title 15 of the California Code of Regulations govern the Board’s parole decisions. Under the statute, the Board is required to set a parole release date one year before an inmate’s minimum eligible parole 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.” (§ 3041, subd. (b), italics added.) Thus, “the fundamental consideration in parole decisions is public safety, ” and, therefore, “the core determination of ‘public safety’... involves an assessment of an inmate’s current dangerousness.” (In re Lawrence (2008) 44 Cal.4th 1181, 1205 (Lawrence).)
All further unspecified references to the Regulations or Regs. are to title 15 of the California Code of Regulations.
A decision by the Board concerning whether to grant parole is inherently subjective (In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz)), but the Board is guided by a number of factors identified in section 3041 and the Board’s regulations. (Regs., §§ 2281, 2402.) The Governor has authority to review de novo the Board’s decision (Cal Const., art. V, § 8, subd. (b)), but that review is also guided by the same factors and based on the material that was before the Board. (Rosenkrantz, supra, 29 Cal.4th at pp. 660–661; § 3041.2, subd. (a).)
In making a determination, both the Board and the Governor must consider “[a]ll relevant, reliable information” concerning suitability for parole (Regs., § 2402, subd. (b)), such as the nature of the commitment offense including behavior before, during, and after the crime; the inmate’s social history; mental state; criminal record; attitude towards the crime; and parole plans. (Regs., § 2402, subd. (b).) The Regulations enumerate circumstances showing suitability and unsuitability. (Regs., 2401, subds. (c) & (d).)
Unsuitability factors include: the inmate (1) committed the offense in a particularly heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) has previously sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (Regs., § 2402, subd. (c).) Suitability factors include: the inmate (1) does not possess a record of violent crime committed while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as the result of significant stress in his life, especially if the stress had built over a long period of time; (5) committed the criminal offense as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use upon release; and (9) has engaged in institutional activities that indicate an enhanced ability to function within the law upon release. (Regs., § 2402, subd. (d).)
Factors that support the finding that the crime was committed “in an especially heinous, atrocious or cruel manner” (Regs., § 2402, subd. (c)(1)), include the following: (A) multiple victims were attacked, injured, or killed in the same or separate incidents; (B) the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (C) the victim was abused, defiled, or mutilated during or after the offense; (D) the offense was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering; and (E) the motive for the crime is inexplicable or very trivial in relation to the offense.
These factors are “general guidelines, ” illustrative rather than exclusive, and “ ‘the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the [Board or Governor].’ ” (Rosenkrantz, supra, 29 Cal.4th at p. 654; Regs., § 2402, subds. (c), (d).) However, in exercising their discretion, the Board and the Governor must give individualized consideration to the specified criteria as applied to a particular inmate. (Rosenkrantz, supra, at pp. 676-677.) Moreover, “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.” (Lawrence, supra, 44 Cal.4th at p. 1212.) Thus, “ ‘due consideration’ of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision—the determination of current dangerousness.” (Id. at p. 1210.) Accordingly, where parole is denied, not only must there be some evidence to support factual findings but also there must be a rational connection between the findings and the ultimate conclusion that the inmate is currently dangerous.
IV. Standard of Review
Courts are authorized to review the factual basis for a decision by the Board or the Governor in order to ensure that they comported with due process. (Rosenkrantz, supra, 29 Cal.4th at pp. 658, 667.) Our review, however, is deferential and limited to the question of whether there is “some evidence” in the record before the Board or Governor that supports the decision to deny parole, that is, a finding of current dangerousness. (Id. at pp. 658, 677.)
In applying the “some evidence” standard, we are precluded from independently resolving conflicts in the evidence, determining the weight to be given the evidence, or deciding the manner in which the specified factors relevant to parole suitability are to be considered and balanced, because these are matters exclusively within the discretion of the Board and the Governor. (In re Scott (2004) 119 Cal.App.4th 871, 899 (Scott I).) Indeed, “[i]t 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.” (Rosenkrantz, supra, 29 Cal.4th at p. 677.) Nevertheless, the evidence underlying a decision must exhibit some indicia of reliability. (In re Moses (2010) 182 Cal.App.4th 1279, 1300; Scott I, supra, 119 Cal.App.4th at p. 899.) And “ ‘suitability determinations must have some rational basis in fact.’ ” (In re Elkins (2006) 144 Cal.App.4th 475, 489 (Elkins).)
If the Board’s or Governor’s consideration of the specified factors is not supported by some evidence in the record and thus devoid of a factual basis, the court should grant the inmate’s petition for writ of habeas corpus and should order the Board or the Governor to vacate its decision denying parole and thereafter to proceed in accordance with due process of law. (Rosenkrantz, supra, 29 Cal.4th at p. 658.)
Where, as here, the trial court granted habeas relief without an evidentiary hearing, our appellate review concerns a question presented is one of law, which we review de novo. (Rosenkrantz, supra, 29 Cal.4th at p. 677.)
V. Discussion
With these principles in mind, we turn to the Governor’s findings. As noted, that Governor based his decision on the particularly aggravated nature of defendant’s offense, his lack of insight, his inability to conform to rules, his inadequate participation in self-help and substance abuse programming, and his lack of job offers.
A. The Commitment Offense
The Governor found the beating to be “particularly heinous” because the victim was a family member. He found that the manner of the killing was “especially atrocious and cruel, ” and defendant carried it out with “exceptionally callous disregard for her suffering.” He further found that the motive for the killing was “inexplicable” in relation to the offense.
“Heinous” means “shockingly evil, ” “grossly bad, ” and “enormously and flagrantly criminal”; “atrocious” means marked by “extreme wickedness, ” “extreme brutality or cruelty, ” and “grossly inhumane”; and “cruel” means “disposed to inflict pain [especially] in a wanton, insensate, or vindictive manner, ” indicating an “inclination to enjoy another’s pain or misfortune.” (Webster’s 3d New Internat. Dict. (1993) pp. 139, 546, 1050; In re Ross (2011) 170 Cal.App.4th 1490, 1507.)
Second degree murder is defined as the unlawful killing of a human being with malice aforethought. (Pen. Code, §§ 187, subd. (a), 189; People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.) Malice itself involves “ ‘an element of viciousness—an extreme indifference to the value of human life’ ” (People v. Summers (1983) 147 Cal.App.3d 180, 184) as well as an element of callousness—a lack of emotion or sympathy; emotional insensitivity; indifference to the feelings and suffering of others. (In re Smith (2003) 114 Cal.App.4th 343, 366 (Smith).) Indeed, except perhaps the execution style shooting of an unsuspecting victim, which is itself an aggravating factor (Regs., § 2402, subd. (c)(1)(B)), there are few murders that do not cause the victim to suffer some physical and emotional pain and terror and which the perpetrator must have inflicted with indifference and disregard. Thus, when measured against general notions of common decency and social norms, all second degree murders reasonably can be characterized as heinous, atrocious, vicious, callous, and cruel. (In re Weider (2006) 145 Cal.App.4th 570, 587 (Weider); In re Lee (2006) 143 Cal.App.4th 1400, 1410; Smith, supra, 114 Cal.App.4th 343, 366; see Lawrence, supra, 44 Cal.4th at pp. 1218-1219.) However, parole is the rule, not the exception, and therefore, a conviction for second degree murder does not by itself automatically render one unsuitable for parole. (Smith, supra, 114 Cal.App.4th at p. 366; see Rosenkrantz, supra, 29 Cal.4th at p. 683.) Rather, it may do so only if the circumstances of the offense show that it was particularly or especially or exceptionally heinous, atrocious, or cruel. (Regs., § 2402, subd. (c)(1).)
Here, the Governor found the offense to be especially atrocious, heinous, cruel, and callous because defendant killed a family member by hitting her multiple times with a bat causing damage to her head.
The familial status of a victim is not among the factors listed in the Regulations that aggravate an offense, and we are not aware of any case where the Board or the Governor has relied on that status to deny parole. Moreover, it was undisputed that defendant’s aunt disliked him, and there was no evidence concerning the victim’s position in the family or her relationships to other family members. Thus, we fail to see how her status as his aunt, by itself, made the killing particularly heinous, atrocious, or cruel. (Cf. In re Singer (2008) 169 Cal.App.4th 1227, 1231, 1244 [killing wife while children were asleep not aggravated].)
The record reveals that sometime before the killing, defendant consumed some beer and marijuana. Later, his aunt pounded on his door, grabbed him, and yelled at him. He exploded in a sudden, violent burst of rage, hitting her up to 10 times with a baseball bat. Certainly defendant’s crime was brutal, shocking, gross, and callous. However, beating someone to death, while horrific, does not necessarily render the crime aggravated. (See, e.g., In re Barker (2007) 151 Cal.App.4th 346, 372-374 (Barker) [crime not particularly aggravated where defendant killed 76-year-old man by striking him on the head with a chisel several times and then shooting him twice in the head]; Elkins, supra, 144 Cal.App.4th at pp. 502-503 [crime not particularly atrocious where defendant consumed drugs and alcohol, planned to rob the victim, and beat him over the head with a baseball bat while he was asleep].)
Moreover, there was no evidence that defendant killed his aunt in a dispassionate, calculated, or execution-style type way. Nor is there evidence that he purposefully chose a particular weapon because it would cause more pain; intentionally and gratuitously inflicted severe trauma that did not result in death or inflicted injuries to prolong or increase the pain for his own pleasure; taunted, terrorized, or tortured her; stalked, attacked, and relentlessly pursued her; forced her to witness violence against others; or intentionally mutilated her body after she was dead. (Compare with In re Dannenberg (2005) 34 Cal.4th 1061, 1095 [killing atrocious where defendant struck victim with pipe wrench and then put her head in a bathtub of water to die]; Rosenkrantz, supra, 29 Cal.4th at p. 678 [after week of careful preparation and rehearsal, defendant fired 10 shots at victim from an assault weapon, three or four into the victim’s head while he lay on the pavement]; In re McClendon (2003) 113 Cal.App.4th 315, 321-322 [defendant planned a calculated attack during the night, arrived wearing gloves and carrying a gun and wrench, and attacked his estranged wife and another victim with both]; In re Van Houten (2004) 116 Cal.App.4th 339, 346 [premeditated, gratuitous mutilation]; In re DeLuna (2005) 126 Cal.App.4th 585, 593 [a non-fatal shooting followed by stalking and continued shooting].)
In short, the facts of the offense cited by the Governor do not distinguish defendant’s offense from or render it more aggravated than other second degree murders and do not constitute “some evidence” that it was especially atrocious, heinous, or callous.
The Governor also found that the crime was aggravated because the motive for the offense was “inexplicable” in relation to the offense.
“The epistemological and ethical problems involved in the ascertainment and evaluation of motive are among the reasons the law has sought to avoid the subject. As one authority has stated, ‘[h]ardly any part of penal law is more definitely settled than that motive is irrelevant.’ [Citations.] An ‘inexplicable’ motive, as we understand it, is one that is unexplained or unintelligible, as where the commitment offense does not appear to be related to the conduct of the victim and has no other discernible purpose. A person whose motive for a criminal act cannot be explained or is unintelligible is therefore unusually unpredictable and dangerous.” (Scott I, supra, 119 Cal.App.4th at pp. 892-893.)
Here, defendant explained that after his aunt moved to the family property, she yelled and screamed at him, and they argued almost daily for a year. On the day of the incident, he had drunk some beers and smoked some marijuana, Before the incident, she pounded on the bedroom door, grabbed him, and yelled at him, and he exploded with rage. The statement to police by defendant’s father—the victim’s own brother—corroborated defendant’s account of the circumstances before the incident, in that he reported that after his sister moved to the family property, defendant did nothing to antagonize his aunt, but she immediately disliked him, yelled at him, cursed him, called him names, and kicked his bedroom door.
We further note that the YA psychological evaluations reported that defendant was shy and fearful, lacked confidence, had a poor self-image, and felt male inadequacy. He hid his weaknesses behind anti-social behavior. He also tended to hide, but store, emotion, exercised poor judgment, and lost control and overreacted when he became emotional.
At his hearing in 2006, defendant, then 42, explained that he did not know how to express his anger at his aunt appropriately, he did not ask his parents to intervene because he was trying to be independent, he held things in and let them build up, and finally, he killed her to stop her abuse.
The record establishes that defendant’s offense was related to his aunt’s conduct and he acted with a purpose. Defendant was a teenager with some psycho-emotional problems related to anger management and self-image. His inhibitions presumably were loosened by beer and marijuana. He experienced his aunt’s grabbing and yelling at him one day as the emotional last straw after a year of her vocal harangues. And he overreacted with an angry explosion of fatal violence to stop it. Simply put, and contrary to the Governor’s finding, the motive for defendant’s crime, while not reasonable, cannot reasonably be considered “inexplicable.”
What is inexplicable, however, and what further flaws the Governor’s analysis of the offense and his reliance on it as an unsuitability factor, is his characterization of defendant’s relationship with his aunt and the impact of that relationship on him and, more importantly, his failure to consider highly relevant circumstances related to the offense, namely, whether the offense was the result of significant stress and defendant’s age at the time. (Cf. In re Scott (2005) 133 Cal.App.4th 573, 596 (Scott II) [indifference to relevant evidence distorts Governor’s analysis of nature and gravity of the offense].)
The Governor states—or rather understates—that defendant and his aunt “did not get along.” He then treats defendant’s explanation of the circumstances leading up to his crime—his aunt’s abuse building up for a year—as an effort to shift the blame to her, minimize his own culpability, and avoid taking full responsibility for her death, an effort that the Governor concludes demonstrates defendant’s lack of insight into his “murderous conduct.”
The Governor’s analysis implies that defendant was lying about how his aunt treated him. Although the Governor was entitled to make credibility determinations when evaluating defendant’s explanation of how his aunt abused him (In re Tripp (2007) 150 Cal.App.4th 306, 318), his findings express and implied must have some rational basis in fact. (Elkins, supra, 144 Cal.App.4th at p. 489; Scott II, supra, 133 Cal.App.4th at pp. 590-600 & fn. 6.) Here, the Governor cited no evidence undermining defendant’s credibility or, more importantly, contradicting his explanation, an explanation that he has consistently maintained and that his father corroborated. (Cf. Scott II, supra, 133 Cal.App.4th at p. 599 [no evidence supporting Governor’s decision to reject defendant’s explanation of event].) Indeed, his father painted an even harsher picture of how his sister constantly berated defendant, and the Board expressly found that defendant had a problematic relationship with his aunt that had built up over a year. Thus, in the absence of some rational basis to find that defendant was making up or exaggerating his aunt’s verbal abuse, it was arbitrary for the Governor to disregard the difficult relationship between defendant and his aunt and her vocally combative conduct, which were the historical prelude to the offense.
Moreover, the Governor was required to consider whether the offense was the result of significant stress in defendant’s life, especially if the stress has built over a long period of time. (Weider, supra, 145 Cal.App.4th at p. 590; Scott II, supra, 133 Cal.App.4th at p. 920.) Indeed, the nature of defendant’s relationship to his aunt, their conflict, and the unavoidable stress that would naturally be generated by her antipathy and constant vituperation were mitigating circumstances suitability for parole. (Regs., § 2402, subd. (d)(4); In re Vasquez (2009) 170 Cal.App.4th 370, 385.)
Equally relevant to a proper individualized consideration of defendant’s offense and suitability for parole was defendant’s age at that time.
The Governor simply reports that defendant was a 16-year-old minor when he committed the offense. He does not discuss defendant’s age or factor it into his analysis despite the YA psychologist’s diagnostic evaluation revealing that at the time, defendant was saddled with a number of difficult emotional and psychological issues that constrained his ability to express anger in an appropriate way and fostered overreaction and poor judgment.
In Barker, supra, 151 Cal.App.4th 346, the court discussed the relevance of age when the commitment offense was committed by a teenager and how important it is to consider it in determining suitability for parole. In that case, Barker was 16 when he agreed to help a friend kill his parents and grandfather. (Id. at pp. 352-353.) The friend shot his mother and father. Barker hit the friend’s grandfather in the head several times with a chisel and then shot him. (Id. at p. 353.) Barker was convicted of three counts of second degree murder. In 2005, when Barker was 45, the Board denied parole. (Id. at pp. 352, 360.) Barker then sought habeas relief, and the court vacated the Board’s decision. The court found no evidence to support the Board’s specific findings. Moreover, the evidence supported most of the suitability factors and did not support the unsuitability factors. (Id. at pp. 366-375.) Last, in rejecting the ultimate conclusion that Barker would pose a threat to public safety if released, the court faulted the Board for not considering Barker’s age at the time of the offense. (Id. at pp. 375-377.)
The Barker court’s discussion is apropos here. “In Elkins, supra, 144 Cal.App.4th 475, we agreed with the observations of the federal district court in Rosenkrantz v. Marshall (C.D.Cal.2006) 444 F.Supp.2d 1063, that ‘ “the general unreliability of predicting violence is exacerbated in [a] case by... petitioner’s young age at the time of the offense [and] the passage [in that case] of nearly twenty years since that offense was committed....” ’ (Elkins, supra, at p. 500.) There, granting the petition for habeas corpus, the district court talked of Rosenkrantz’s age, one month past 18. (Rosenkrantz v. Marshall, supra, 444 F.Supp.2d at p. 1085.) This fact, the district court noted, ‘further diminished’ the “reliability of the facts of [Rosenkrantz’s] crime as a predictor for his dangerousness.’ (Ibid.) Stating that ‘[w]hile [Rosenkrantz] was not legally a minor, he was very close to being one, ’ the district court confirmed the recognition by the United States Supreme Court that the ‘evidentiary/predictive value of the conduct of such a young person is diminished.’ (Ibid.) Then, after making the statement quoted by us in Elkins, the district court went on to quote various observations of the Supreme Court about young criminals: ‘Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. [Citation.] The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed. Indeed, “[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.” [Citations.]’ (Rosenkrantz v. Marshall, supra, 444 F.Supp.2d at p. 1085, fn. omitted.) These observations are a fortiori applicable to the 16-year-old Barker who committed the crimes here.” (Barker, supra, 155 Cal.App.4th at pp. 376-377.)
Here too, defendant’s age and level of psychological and emotional development were highly probative of why he handled the accumulation of anger and stress related to his aunt’s treatment the way he did. Defendant’s age was equally relevant as a base line to determine whether he had matured during his lengthy incarceration and thus whether his current age “reduces the probability of recidivism, ” a circumstance, like stress, that shows suitability for parole. (Regs., 2402, subd. (d)(7).)
In a lengthy discussion, the trial court opined that where, as here, the commitment offense was committed by a teenager, the Board or Governor must do more than just consider the inmate’s age at the time of the offense in determining suitability for parole. The court stated, “Just as the Governor must state why a nexus is present for a negative factor[, ] the Governor must state why there is no nexus or weight for a mitigating factor such as Petitioner’s youth at the time of the crime.”
In sum, the Governor’s analysis of the commitment offense is fatally flawed. The finding that it was particularly heinous, atrocious, cruel, or callous lacks some factual support; and the analysis does not consider “[a]ll relevant, reliable information” concerning suitability for parole (Regs., § 2402, subd. (b)), including defendant’s age at the time of the offense and evidence that he acted under stress that had accumulated for a year. Under the circumstances, the commitment offense lacked probative value concerning whether defendant, in 2010, at age 45, after almost 30 years of incarceration, was currently dangerous. This is especially so given the strong evidence of defendant’s remorse and rehabilitation and the lack of any recent criminal or violent conduct or other evidence of current dangerousness. (See Lawrence, supra, 44 Cal.4th at pp. 1211, 1219.)
We acknowledge that despite a lengthy incarceration, an aggravated commitment offense can support a finding of current dangerousness if the Board or the Governor can cite some evidence from the inmate’s pre- or postincarceration history or current demeanor and mental state that rationally indicates that the inference of dangerousness from an aggravated offense remains probative of current dangerousness. (Lawrence, supra, 44 Cal.4th at pp. 1214, 1219.) For example, where the inmate “has failed to make efforts toward rehabilitation, has continued to engage in criminal conduct postincarceration, or has shown a lack of insight or remorse, the aggravated circumstances of the commitment offense may well continue to provide ‘some evidence’ of current dangerousness even decades after commission of the offense.” (Id. at p. 1228.) “[T]he 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. This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate’s psychological or mental attitude.” (Id. at p. 1221.)
In this case, the Governor sought to justify his reliance on defendant’s commitment offense and show that it retained probative value by further finding that defendant lacked insight into this offense, was unable to conform his behavior to rules, and failed to make an adequate effort at rehabilitation.
B. Lack of Insight
Neither the governing statute nor the governing regulations list “lack of insight” as an unsuitability factor. However, in In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), the court upheld the denial of parole based on the aggravated nature of the commitment offense and the inmate’s lack of insight into it and its causes. (Id. at pp. 1258–1261 & fn. 20.) Shaputis murdered his second wife. He had a long history of domestic abuse and violence toward his two wives. He also had a history of acting violently when drunk, and he had an elevated blood-alcohol level on the night of the murder. (Id. at pp. 1246–1247.) Shaputis, however, said he was a mellow drinker. Although there was undisputed, if not conclusive, evidence to the contrary, he insisted that the killing was accidental, not intentional. He downplayed his history of domestic abuse. And despite years of rehabilitative and substance-abuse programming, his latest psychological evaluations revealed that his abusive character remained essentially unchanged and his ability to achieve self-awareness diminished. The court found that these circumstances reflected a failure to take any responsibility for the crime and past abusive conduct and a lack of insight into the causes of that conduct which together constituted some evidence that Shaputis remained currently dangerous. (Id. at pp. 1246–1248, 1259–1261, fn. 20.)
As Shaputis illustrates, a “lack of insight” into past criminal conduct can reflect an inability to recognize the circumstances, forces, and impulses 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. (Shaputis, supra, 44 Cal.4th at pp. 1260, 1261, fn. 20; see Lawrence, supra, 44 Cal.4th at pp. 1214, 1228; In re Lazor (2009) 172 Cal.App.4th 1185, 1202.)
Here, the Governor found that defendant lacked insight into his offense because he tried to shift some blame to his aunt, and doing so reflected both an effort to minimize his culpability and failure to accept full responsibility for his inexplicably violent conduct. The factual basis for this finding was defendant’s statements about his aunt putting pressure on and abusing him, the toll this took, and his blowing up in a moment of rage.
Notably all of these by defendant’s statements predate the most current findings by the Board and psychologist that defendant had insight into his offense and its causes. In any event, what the Governor unreasonably, if not perversely, calls an attempt to shift blame to his aunt was simply defendant’s legitimate, factual description of the circumstances that led up to the offense, defendant’s reaction to them, and his understanding of how and why he reacted the way he did.
Moreover, we note that shortly after his arrest, defendant admitted killing his aunt, and although at that time, he was reluctant to discuss the details of the beating, which he claimed not to remember, he said that his aunt did not deserve to die, and he wished that they could have resolved their problems because he now hated himself and had had suicidal thoughts.
The YA psychological reports support defendant’s understanding of how he dealt with his aunt’s verbal abuse over time and how it could have led to an explosive and violent response. A 1990 psychological evaluation reported that defendant accepted responsibility for the offense and contains no evidence or statements suggesting that he thought his aunt was or should be considered partly responsible for what happened.
In the most recent psychological evaluation in 2008, defendant told the psychologist that he was responsible for the offense. He said that his aunt was not “ ‘ “crazy, ” ’ ” but full of anger, of which he was often the target. He explained that, in turn, she became “ ‘the target of everything in my life that wasn’t going right (puberty, anger, stress, my desire to fit in).’ ” He “emphatically” said, “ ‘She will be with me always. I am terribly sorry that I did it and I wish I could undo it. I wish that I could have reached out and helped her. I hit bottom at the time of the crime.’ ”
The psychologist reported that defendant “had spent a great deal of time and effort exploring his commitment offense and coming to terms with the underlying causes.” He accepted “total responsibility for his actions, and expresses both remorse and a commitment to lead an exemplary life.” The psychologist said that defendant “spoke about his own problems as a teenager and how they contributed to his life offense, and he demonstrated good insight into his own past and current psychological functioning.” Although he declined to discuss the details of the beating, the psychologist found that defendant’s discussion of the circumstances and causes of the crime did not seem to be an effort to “minimize either the crime or his role in it.” Moreover, when asked about his aunt’s behavior, “he stated that he would not characterize [it] as abusive, but that she had her own problems and he was the primary focus of her anger. He added that he wished he could have been different and tried to help her instead of reacting to her anger by focusing all his own unhappiness, angst, stress, and anger onto her.”
At the 2009 hearing, defendant emphasized that his aunt’s death was his fault, and he was completely responsible for it and deeply regretted it. He explained that he was a teenager who he kept his anger inside. He was incapable of dealing with his aunt’s abuse over time, he let his anger build, failed to address it, and finally blew up at her.
Although in 2008, the Board found that defendant had not shown sufficient remorse or insight, in 2009, after seeing and hearing him testify, the Board expressly found that defendant had gained insight concerning his relationship with his aunt and the stress that it caused and how he had dealt with it, and he had demonstrated sincere and genuine remorse.
The record also contains undisputed evidence that defendant demonstrated remorse in that he had been helping young inmates in prison and had become committed to helping disabled persons; he also had made amends with his family members, including his father before he died; and he had articulated an understanding of who he was at the time of the offense, his problems as a teenager, and the nature and magnitude of his offense. (Regs., § 2402, subd. (d)(3).)
In sum, the alleged lack of insight the Governor purported to find pales when compared with the demonstrable lack of insight shown by Shaputis concerning material aspects of the offense and its causes. The statements cited by the Governor do not reflect defendant’s belief that his aunt deserved to be beaten because of how she treated him, that she should be considered partly responsible for what happened, that the beating was merely a response to her unreasonable provocation, or that her conduct partially justified his violent reaction. Moreover, when read in light of the entire record, defendant’s explanation for the offense does not constitute “some evidence” that he lacked insight or tried to shift blame to his aunt, minimize culpability for his conduct, or shirk full responsibility for the offense.
C. Inability to Conform to Laws and Rules
The Governor’s conclusion that defendant showed an inability to conform his conduct to laws and rules was based on defendant’s recent 115 citation for mutual combat. The Governor was “extremely alarmed by [defendant’s] inability to control his anger, ” noting that the incident report said the two combatants “were striking each other around the chest.” According to the Governor, the citation reflected the same type of “carelessness and aggressi[ve]” behavior that defendant had shown in killing his aunt, which indicated that he still could not control his anger.
There is no evidence to support the Governor’s finding that the murder and facts underlying the citation were similar, let alone reflected the same sort of carelessness and aggressive behavior. Defendant blew up at his aunt and beat her in the head with a baseball bat. On the other hand, prison officials called the citation incident mutual combat. However, other than punching each other in the chest, the record contains no evidence concerning what was said, how it started, who may have provoked whom, whether defendant overreacted, or whether anyone was injured. Moreover, the Board noted that at a previous parole hearing, it had accepted the defendant’s characterization of the incident as “horseplay.”
The Governor’s view that defendant was punished “recently” for mutual combat is belied by the fact that the citation was nine years old. (Cf. Barker, supra, 151 Cal.App.4th at p. 368 [rejecting Board’s finding that defendant’s improvements were “recent”].) Like the commitment offense, the citation is an immutable circumstance. Thus, even if it supported an inference that defendant was dangerous in 2001, the probative value of that inference necessarily diminished over the nine years after it, during which defendant did not engage in any aggressive, careless, or dangerous conduct or even violate any prison rules. On the contrary, the record reflects that defendant’s conduct and involvement in helping fellow inmates after 2001 was exemplary. Moreover, the psychologist found that defendant posed a low risk to public safety in part because he did not manifest any current impulsivity or negative attitudes.
In short, when viewed in light of the whole record, the single 2001 citation for mutual combat does not constitute some reliable evidence that in 2009 defendant was unable to control his anger, unable to conform his conduct to rules, or was currently dangerous.
D. Insufficient Participation in Self-Help and Substance Abuse Programming
The record confirms the Governor’s finding that defendant had not participated in any formal self-help programming since 2005. As a result, the Governor opined that defendant had made only a “minimal effort[]” to enhance his ability to function within the law. Given the violent nature of the offense and defendant’s continued lack of insight, the Governor concluded that defendant needed more programming. He adopted the Board’s 2006 conclusion that defendant “ ‘needs additional therapy in order to face, discuss, understand, and cope with stress in a nondestructive manner.’ ” Interestingly, neither the Board at that time, nor the Governor now name any particular program that defendant should have participated in or failed to complete. Moreover, the list of programs that defendant completed at YA and later in prison addressed sexuality, stress, anger management, violence, and employment. In addition, defendant maintained a long time involvement with an informal group guided by a spiritual counselor. Moreover, he completed a wide variety of vocational skill training programs.
Although the Board and the Governor credited defendant for participating in this group, the Governor faulted defendant for failing to provide documentation to prove it.
Our discussion of the commitment offense, the faulty basis for the Governor’s lack of insight, and the 2001 citation for mutual combat undermines the Governor’s conclusion that without some more unspecified type of programming defendant remains a risk to public safety. The Governor’s adoption of the Board’s 2006 conclusion adds nothing to the Governor’s analysis in the absence of some factual basis to support its adoption. Moreover, that conclusion no longer reflects the Board’s current view concerning the sufficiency of defendant’s self-help programming. Although the Board commented that other inmates that they see may have participated in more self-help programming, it nevertheless found that he had gained insight from his programming into how and why he committed his offense; he understood his strengths and weaknesses, and he had grown, matured, and become a well-spoken, well-disciplined person with an excellent work ethic who had learned to function within prescribed rules. The psychologist’s 2008 evaluation amply supported the Board’s decision as does defendant’s presentation before the Board at his last hearing.
Under the circumstances, the fact that defendant did not participate in any formal self-help programming after 2005 does not constitute “some evidence” that he had made only a “minimal” effort at such participation or, more importantly, that he needed more of such programming. (Cf. Barker, supra, 151 Cal.App.4th at pp. 366-368 [no evidence that defendant needed additional therapy].)
The Governor also found that defendant had an “extensive drug history, ” his “addiction” had played a “major causative” role in the crime, and yet his participation in substance abuse programming had been only “sporadic.” The Governor further noted that defendant did not believe that substance abuse had caused him to commit his crime. The Governor concluded that defendant’s belief reflected a minimal and inadequate effort to address his addiction, showed that he was not truly committed to sobriety, and established that he was at risk of a relapse, which would pose a risk of danger to others.
The record reveals that defendant regularly consumed alcohol and drugs when he was 15 and 16. He has been clean and sober for his 29 years in prison. He participated in AA programming over the years and demonstrated to the Board his understanding and internalization of the 12-step program. He continued substance abuse counseling with his spiritual program. He expressed a strong commitment to sobriety and had a concrete, realistic plan to maintain sobriety by gaining a placement at Delancey Street Foundation, which has a zero-tolerance for drugs and alcohol.
In 1998, the psychiatrist opined, in essence, that defendant’s substance abuse did not cause him to commit the crime; it merely facilitated it. Indeed, there is no evidence that defendant was aggressive or used force or violence against anyone while under the influence. And defendant did not kill his aunt to get money for drugs or alcohol. In 2006, the psychologist opined that defendant could maintain sobriety if released but recommended continued support through AA and NA. In 2008, the psychologist explained that the circumstances that gave rise to defendant’s substance dependence when he was a teenager no longer existed. Moreover, given defendant’s substance abuse programming, his long time sobriety in prison, and genuine commitment to maintaining sobriety, his maturity, and insight, and intent to seek a Delancey Street Foundation placement, the psychologist opined that defendant was likely to stay clean and sober.
The Governor was not required to accept the views of the psychological professionals who personally and directly evaluated defendant in 1998, 2006, and 2008. However, the Governor fails to acknowledge much of this evidence, and doing so distorts his analysis of the issues. Thus, in finding that defendant’s programming was inadequate, he cites only the immutable fact that had used alcohol and marijuana for a couple of years before the incident and used them on that day. The Governor does not explain how or why defendant’s “sporadic” or “minimal” participation in AA and NA was deficient, what he failed to learn, or what he failed to understand about his use of drugs and alcohol as a teenager. The Governor merely cited defendant’s belief that that drugs and alcohol did not cause the crime. However, defendant did not deny using drugs or alcohol that day, and his belief was not absurd or even unreasonable given his psycho-emotional state and relationship with his aunt at the time of the offense. Moreover, his belief was supported by the 1998 psychological assessment that substance abuse merely facilitated the crime.
Under the circumstances, the fact that defendant used drugs and alcohol before and on the day of the offense and his view that they did not cause him to commit the offense do not constitute some evidence to support an inference that he is at risk of a relapse if released without further AA or NA programming. (Cf. Weider, supra, 145 Cal.App.4th at p. 586 [no evidence failure to participate in substance abuse program rendered defendant unsuitable]; Smith, supra, 114 Cal.App.4th 343, 371 [no evidence to support the Governor’s finding that defendant might relapse if released].)
In sum, the factual basis for the Governor’s findings that defendant needed additional self-help and substance abuse programming does not render the commitment offense probative of defendant’s current dangerousness; nor do those facts themselves constitute “some evidence” to support the Governor’s finding that defendant would pose a threat if released.
E. Lack of Job Offers
The record confirms the Governor’s finding that defendant did not have any job offers. However, the lack of job offers is not among the unsuitability factors listed in the Regulations. Indeed, appellate courts have rejected the lack of a formal job offer as a factor tending to show unsuitability for parole. (See In re Loresch (2010) 183 Cal.App.4th 150, 162; In re Criscione, supra, 173 Cal.App.4th 60, 75–76.) On the other hand, the Regulations list as a suitability factor that the inmate “has made realistic plans for release or has developed marketable skills that can be put to use upon release.” (Regs., § 2402, subd. (d)(8).) The undisputed evidence reveals that defendant has realistic plans to stay with his sister and her husband and seek a placement with the Delancey Street Foundation. He also has numerous marketable skills and a desire to find a job helping disabled persons.
In short, the lack of job offers has no probative value concerning whether defendant was currently dangerous and does not suggest that the commitment offense remains probative of dangerousness.
F. Conclusion
We conclude that the record does not contain “some evidence” to support either the Governor’s unsuitability findings or his ultimate conclusion that if released, defendant would pose an unreasonable risk of danger to the community. Accordingly, the trial court properly vacated the Governor’s decision and reinstated the Board’s decision.
VI. Disposition
The order granting the petition for habeas corpus is affirmed.
WE CONCUR: PREMO, J.ELIA, J.
This court stayed the trial court’s order pending resolution of the appeal. (Order Nov. 18, 2010.)
Defendant also rated low risk under the other two empirical tests.
All further unspecified unspecified statutory references are to the Penal Code.
We agree with the trial court that because the Board and Governor must consider “[a]ll relevant, reliable information” related to the parole suitability and unsuitability factors set forth in section 3041 and the Regulations (Regs., § 2402, subd. (b); In re Prather (2010) 50 Cal.4th 238, 251), they must take into consideration the fact that a commitment offense was committed by a minor. (Barker, supra, 151 Cal.App.4th at pp. 375-377.) However, we disagree with the court’s view that the Board and Governor must articulate why they assigned greater or lesser weight to each factor or explain how they weighed the various factors against each other. It is settled that the manner in which the suitability and unsuitability “factors interrelate and the weight to be given to each are considerations for the Board [or Governor].” (In re Criscione (2009) 173 Cal.App.4th 60, 78.) For this reason, we also disagree with the trial court’s view that the Governor must state “why there is no nexus or weight for a mitigating factor such as Petitioner’s youth at the time of the crime.” The Board and Governor need only articulate a rational nexus between the unsuitability factors that they rely on to deny parole and their conclusion that an inmate is currently dangerous. (Lawrence, supra, 44 Cal.4th 1181, 1210; e.g., In re Moses, supra, 182 Cal.App.4th 1279, 1304-1312.)