Opinion
NOT TO BE PUBLISHED
Appeal from judgment of the Superior Court of Orange County No. M-13093, Thomas M. Goethals, Judge.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Julie A. Malone, Ryan K. Schneider and Charles Chung, Deputy Attorneys General for Appellant.
Richard Pfeiffer, under appointment by the Court of Appeal, for Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
The Governor appeals from a superior court judgment that vacated his second reversal of a parole suitability ruling by the Board of Parole Hearings (the Board) concerning petitioner David Michael Golub. The judgment also reinstated the Board’s decision. Because the record fails to satisfy the some evidence of current dangerousness standard and the appropriate remedy is reinstatement of the Board’s ruling rather than remand to the Governor for further review, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Golub had a history of drug and alcohol abuse and had suffered convictions for drunk driving. In early February 1994, Dawn Pepe, Golub’s then wife, returned to work, leaving Dominique, the couple’s four-month-old daughter, in his care. Prior to this time, Golub had been ingesting methamphetamine on a daily basis.
While in Golub’s care, Dominique suffered injuries that led to her death. At its October 2008 hearing, the Board incorporated the following portion of the March 1998 opinion affirming Golub’s second degree murder conviction as the facts of the underlying offense: “On the day... Pepe returned to work..., she received a telephone call from defendant claiming the child had fallen off the couch and was injured. Defendant refused to call for help and, when Pepe telephoned a few minutes later, reassured her that Dominique was fine. Hours later, defendant picked up Pepe from work. As they drove home, she heard Dominique moaning. She demanded to be driven to the emergency room. Defendant refused. Pepe telephoned the child’s pediatrician. He directed her to take Dominique to the emergency room. Pepe immediately complied[;] however Dominique died the following morning. One month later, defendant asked Pepe to testify falsely on his behalf. [¶] According to various experts, Dominique died of severe brain injury caused by physical abuse. [During trial, d]efendant blamed Harley, the family Rottweiler, for Dominique’s injuries.... The prosecution called several rebuttal witnesses... to testify that Dominique’s injuries were not consistent with having been attacked by the family dog.” (People v. Golub (G020294, Mar. 20, 1998) [nonpub. opn.], pp. 2-3.)
Conflicting evidence was presented concerning bruises found on Dominique’s body. An emergency room physician who examined Dominique reported “the victim’s injuries were indicative of shaken baby syndrome....” Golub eventually admitted to the police “he shook [Dominique] for approximately 10 to 20 seconds while holding her under the armpits.” In opposing Golub’s habeas corpus petition, the Governor presented emergency room records stating Dominique had “[m]ultiple bruises all over the body.” The Governor also submitted the trial testimony of a physician who testified there was “evidence of both impact and violent movement.” But at Golub’s sentencing hearing the trial judge stated “the other bruising could have been caused by the medical intervention.... I don’t think you could really make too much of whether or not there were other acts of violence inflicted on this child... because there was substantial medical intervention that took place in an effort to save this child.”
During the 2008 hearing, Golub took responsibility for killing Dominique by violently shaking her. But he continued to assert “I did not physically hit her with my hands. I did not hit her with any object or hit her against anything, so I maintain my position that I am not responsible for the bruising.”
In prison, Golub received a serious misconduct citation in 1998 for participating in a work stoppage, but otherwise had a clean disciplinary record. He had obtained a bachelor’s degree in science and natural health, and vocational certificates in dry cleaning and computer refurbishing. At the time of the hearing Golub worked as a maintenance mechanic in the prison’s optical lab and, on his own, was studying for an optician’s exam. His supervisors’ reports reflected Golub was an exceptional worker.
As for self-help programs, Golub had consistently attended in Alcoholics Anonymous and Narcotics Anonymous meetings from 1998 to the date of his hearing. He also participated in numerous anger management, fatherhood, life skills, and religious programs for the past decade and completed book reports.
The Board reviewed Golub’s 2007 psychological evaluation. To determine Golub’s potential for violence outside of prison, the psychologist employed two assessment guides concerning risk for future violence and another guide for recidivism.
On the Psychopathy Check List Revised (PCL-R) the evaluator concluded Golub “scored in the low range..., or at the 3rd percentile relative to the population of incarcerated males in the norming group. His personality traits... are at the 1st percentile, and his past antisocial behaviors... are at the 17th percentile.” A second assessment guide for future violence, the History Clinical Risk Management 20 (HCR-20), involved three subcategories: historical, clinical/insight, and risk management. In the historical subcategory, the evaluator concluded Golub “would rate in the high end of the low range in his propensity for future violence.” (Italics and underscoring omitted.) For clinical/insight, the evaluator rated Golub “in the low range, ” noting he “does not have a negative attitude, ” or “active mental health symptoms, and... is not impulsive.” The evaluator also found Golub “has had a good response to treatment” and “[h]is insight seems appropriate.” (Underscoring omitted.) As for risk management, the evaluator placed Golub “in the low range” (underscoring omitted), noting he “has been able to handle compliance, stress, and destabilizers well while incarcerated” and his “parole plans seem feasible.” Overall, the evaluator concluded Golub’s “propensity for violence is in the low range when compared to similar inmates.” Finally, under the Level of Service/Case Management Inventory (LS/CMI) the evaluator scored Golub “in the low range” for “general recidivism.”
The Board found Golub suitable for parole. It concluded Dominique’s murder was “particularly troubling, ” noting the trivial motive for it, merely “to get the baby to stop crying, ” and Golub’s failure to seek medical treatment for her. Other unsuitability factors the Board cited were Golub’s alcohol and drug abuse, his prior criminal behavior and failure to successfully complete probation for those offenses, and his unstable social history.
But the Board concluded Golub had shown insight, by a willingness to examine the reasons for his “failing to protect [and] actually causing the killing of the most vulnerable being in [his] life, ” and “by [his] actions” in prison and the “book reports” he had written. “You talked... about your repressed anger and your low self-esteem and your appalling lack of impulse control.... You’ve also discussed the role that drugs played. The Panel did not feel that you were blaming it on drugs but that you’ve looked behind why you actually used drugs and the alcohol and how that broke you.” It also cited Golub’s academic and vocational achievements, his extensive participation in self-help programs, plus his “very supportive psychological evaluation.”
In March 2009, the Governor reversed the Board’s decision. Golub filed a petition for a writ of habeas corpus in the superior court. (In re Golub (Super. Ct. Orange County, 2009, No. M-12494).) The court granted the petition but remanded the matter to the Governor for another review.
In January 2010, the Governor again reversed the Board’s 2008 parole suitability ruling. First, he cited “the aggravated nature of th[e] crime, ” noting it “was especially heinous because Golub was placed in a position of trust regarding his particularly vulnerable four-month-old daughter” and “[w]hen Dominique started crying, Golub shook her with significant force.” Golub also “did not call for emergency help immediately, but instead assured Pepe that everything was fine, thus demonstrating an exceptionally callous disregard for Dominique’s life and suffering.”
Second, the Governor concluded Golub “has still failed to obtain insight into his actions....” Citing the evidence of Dominique’s bruises and Golub’s denials that he hit the child, the Governor found Golub failed to accept full responsibility for her death because his “version of the life offense is wholly inconsistent with the facts contained in the record....”
Finally, relying on the 2007 psychological evaluation’s placing Golub in the high end of the low range on the HCR-20 assessment’s historical factors subcategory, the Governor stated “[w]hen combined with [Golub’s] inadequate understanding of the circumstances of the life crime, this risk assessment is troubling and suggests that Golub continues to present a threat to the community if released at this time.”
Golub filed a second petition for a writ of habeas corpus challenging the Governor’s January 2010 ruling. (In re Golub (Super. Ct. Orange County, 2010, No. M-13093).) After a hearing the court again reversed the Governor and this time directed the Board’s 2008 parole suitability decision be reinstated.
DISCUSSION
1. Introduction
The Attorney General’s opening brief violates the requirement that it contain “a summary of the significant facts” (Cal. Rules of Court, rules 8.204(a)(2)(C); 8.360(a)), because its statement of facts only mentions evidence relevant to the commitment offense and the procedural background of the case while ignoring much the evidence presented to the Board. (Cal. Rules of Court, rule 8.388(a) [appeal from an order granting a prisoner habeas corpus relief must comply with the rules for criminal appeals].) But the trial court did not receive or consider any oral testimony and since its “findings were based solely upon documentary evidence, we independently review the record” on appeal. (In re Rosenkrantz (2002) 29 Cal.4th 616, 677.)
2. Statutory Background
Penal Code section 3041, subdivision (b) declares the parole board “shall set a release date unless it determines that the gravity of the current convicted offense... 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....” The governing regulations provide, “a life prisoner shall be found unsuitable for and denied parole if in the judgment of the [Board] the prisoner will pose an unreasonable risk of danger to society if released from prison.” (Cal. Code Regs., tit. 15, § 2402, subd. (a).) In making this determination, the Board shall consider “[a]ll relevant, reliable information available....” (Cal. Code Regs., tit. 15, § 2402, subd. (b).) “In sum, the Penal Code and corresponding regulations establish that the fundamental consideration in parole decisions is public safety, ” and “the core determination of ‘public safety’ under the statute and corresponding regulations involves an assessment of an inmate’s current dangerousness.” (In re Lawrence (2008) 44 Cal.4th 1181, 1205.)
The Governor conducts a de novo review of the Board’s decision and may modify or reverse it based on materials provided by the Board. (Cal. Const., art. V, § 8, subd. (b); Pen. Code, § 3041.2, subd. (a).) In reviewing a board’s parole suitability decision “the Governor... sits as the trier of fact and may draw reasonable inferences from the evidence. [Citation.]” (In re Smith (2009) 171 Cal.App.4th 1631, 1639.)
“Although ‘the Governor’s decision must be based upon the same factors that restrict the Board in rendering its parole decision’ [citation], [since] the Governor undertakes an independent, de novo review of the inmate’s suitability for parole, ” he or she “has discretion to be ‘more stringent or cautious’ in determining whether a defendant poses an unreasonable risk to public safety. [Citation.] ‘[T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor....’” (In re Lawrence, supra, 44 Cal.4th at p. 1204.)
3. Judicial Review of a Parole Suitability Decision
To “‘ensure compliance’” with due process of law, courts are “authorized to review the merits of the Board’s or the Governor’s decision to grant or deny parole.” (In re Prather (2010) 50 Cal.4th 238, 251.) The standard of judicial review of the Board’s or Governor’s decision is “whether ‘some evidence’ supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous.” (In re Lawrence, supra, 44 Cal.4th at p. 1191.) This standard is a deferential one. “Only a modicum of evidence is required. Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the Governor.” (In re Rosenkrantz, supra, 29 Cal.4th at p. 677.) Thus, a Governor can “make his own credibility determinations, ” and if he chooses “to disbelieve petitioner, we [are] bound by that determination. [Citation.]” (In re Tripp (2007) 150 Cal.App.4th 306, 318.)
“As with the discretion exercised by the Board in making its decision, the precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor, but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious. It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole. As long as the Governor’s decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court’s review is limited to ascertaining whether there is some evidence in the record that supports the Governor’s decision.” (In re Rosenkrantz, supra, 29 Cal.4th at p. 677.)
But “[t]he ‘some evidence’ test... ‘must have some rational basis in fact.’ [Citation.]” (In re Gomez (2010) 190 Cal.App.4th 1291, 1306.) Consequently, “[t]aking all the above into consideration, our job requires us to independently review the record to determine whether there is ‘some evidence’ to support the Governor’s decision to reverse petitioner’s grant of parole. [Citation.] We independently review the record to determine whether those factors relied upon by the Governor in his decision to reverse the Board’s grant of parole, establish that petitioner is currently dangerous when viewed in light of the full record before us. [Citation.]” (Ibid.)
4. Analysis
The Attorney General argues the Governor’s second reversal of the Board’s 2008 parole suitability decision satisfied the some evidence standard, citing “the combination of Golub’s lack of insight into the murder, his failure to accept full responsibility for his actions, his 2007 mental health evaluator’s recidivism finding, and the gravity of the commitment offense.” Golub contends the judgment reinstating the Board’s ruling should be affirmed because his commitment offense, alone, no longer supports a finding of current dangerousness, and the other unsuitability factors cited by the Governor are either factually incorrect or lacking support in the record.
The record supports the Governor’s conclusion Golub committed an “especially heinous” offense. But that fact alone cannot support his ruling. The Supreme Court has noted “although 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.” (In re Lawrence, supra, 44 Cal.4th at p. 1214.)
Neither do the other factors the Governor cited support his ruling. The Governor argues Golub only accepted “limited responsibility” for Dominique’s murder and as a result “does not yet have full insight into the circumstances that led to his crime....” “An inmate’s lack of insight into, or minimizing of responsibility for, previous criminality, despite professing some responsibility, is a relevant consideration. [Citation.]” (In re Lazor (2009) 172 Cal.App.4th 1185, 1202, fn. omitted.) But “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.” (In re Shaputis (2008) 44 Cal.4th 1241, 1260, fn. 18; In re Twinn (2010) 190 Cal.App.4th 447, 465.)
There was conflicting evidence as to what caused the bruising observed on Dominique’s body. Even the judge who presided at the criminal trial acknowledged many of Dominique’s injuries could have resulted from the efforts by medical personnel to save her life. Golub did not decline to answer questions about Dominique’s murder. He acknowledged she died because he violently shook her. As the superior court noted, “[Golub’s] denial that he is responsible for non-fatal bruises on the baby[] is not the same as a denial that he is responsible for her death.” We find this analysis persuasive. In re Rozzo (2009) 172 Cal.App.4th 40, a case cited by the Attorney General, is distinguishable because there the prisoner refused to discuss his motivation for the offense.
The Governor also cited the psychologist’s rating of Golub at the high end of the low rating on the historical factors subcategory of the HCR-20 assessment guide. This finding is taken out of context. The psychological evaluation found Golub’s overall risk assessment for future violence and recidivism was in the low range. The elevated rating cited by the Governor dealt only with a single subcategory of one assessment guide, which was based on immutable facts, including Golub’s “history of substance abuse, his involvement in unstable relationships, his age at the time of the crime, and... his employment history.”
Thus, we conclude the trial court properly concluded the Governor’s January 2010 decision is not supported by some evidence that Golub remains currently dangerous. Alternatively, the Attorney General argues the appropriate remedy is to remand the matter to the Governor for a third review. We disagree.
“Because we have reviewed the materials that were before the Board and found no evidence to support a decision other than the one reached by the Board, a remand to the Governor would amount to an idle act. [Citation.]” (In re Aguilar (2008) 168 Cal.App.4th 1479, 1491.) In In re Gomez, supra, 190 Cal.App.4th 1291, we expressed our agreement with this rationale and declared that where the Governor’s reversal of a parole board suitability finding is judicially determined not to be supported by some evidence in the record, “‘[t]he proper remedy is to vacate the Governor’s decision and to reinstate that of the Board. [Citation.]’ [Citations.]” (Id. at p. 1309; see also In re Nguyen (2011) 195 Cal.App.4th 1020, 1036.) We conclude the trial court properly rejected the Governor’s request for a third review of the Board’s 2008 parole suitability ruling.
DISPOSITION
The judgment is affirmed.
WE CONCUR: ARONSON, J., IKOLA, J.