Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BH 005119, Patricia M. Schnegg, Judge.
Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Assistant Attorney General, Jennifer A. Neill and Charles Chung, Deputy Attorneys General, for Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Respondent.
ROTHSCHILD, Acting P. J.
The Board of Parole Hearings granted parole to Edward Gozy. The Governor reversed the Board’s decision. The trial court reversed the Governor’s decision. We affirm the trial court’s decision reversing the Governor’s decision reversing the Board’s decision.
We denied the Governor’s petition for a writ of supersedeas and Gozy has since been released to his family.
FACTS AND PROCEEDINGS BELOW
In 1987, Gozy pleaded guilty to the robbery and second degree murder of Paciano Gondorilla. Evidence showed that Gozy, then age 19, and his codefendant, Addison You, attacked Gondorilla, beating and stabbing him numerous times in the neck and abdomen. Following the attack, they took $50 from Gondorilla. Gozy told a probation officer that at the time he committed these crimes he had been smoking PCP and cocaine. He said he typically used $500 of cocaine a month and consumed large quantities of beer every day. Gozy claimed that You attacked Gondorilla in retaliation for Gondorilla exposing his penis to You’s girlfriend, Gozy’s cousin, and forced Gozy to join in the attack.
The court sentenced Gozy to a term of 15 years to life for the murder plus a three year concurrent term for the robbery. Sentence on the weapon enhancement was stayed.
Gozy had served nearly 20 years and was age 40 when the Board of Parole Hearings granted him parole in 2006. As we discuss more fully below, the evidence before the Board showed that Gozy had been a model prisoner, posed a low risk of danger to the community, had a solid support system awaiting him upon his release, had realistic and appropriate post release plans, and excellent job prospects. He had no record of violence while in prison and no instances of discipline except for a few minor infractions, the most recent occurring in 1995. His prison classification was 19, the lowest score on the scale. Other than the crime for which he was serving the prison term, he had no arrests for violent crimes and his only other arrest in 1985, for lying to a police officer, did not result in conviction. The psychiatrist who evaluated Gozy reported that he posed a “low” risk of dangerousness to the community and recommended his release. The psychiatrist also reported that Gozy “‘describes himself as a different man [today] and in all appearances this is accurate.’” The Board made a specific finding that Gozy was remorseful.
The Board had granted Gozy parole twice before but its decisions were reversed by the Governor.
The Department of Corrections and Rehabilitation classifies each entering prisoner according to the level of security needed to house the inmate. This classification can increase or decrease during the prisoner’s term depending on the prisoner’s conduct. (In re Player (2007) 146 Cal.App.4th 813, 823-824.)
The Governor admits that while in prison Gozy took advantage of numerous opportunities “to enhance his ability to function within the law upon his release.” These opportunities included earning a GED and completing vocational training in the areas of air conditioning and refrigeration, laundry mechanics, plumbing, and linen management. Gozy also availed himself of an array of self-help programs including stress and anger management, violence prevention, reality and decision making as well as programs to treat his substance abuse including AA and NA, individual and group therapy. During his incarceration, Gozy married a woman who visited him every weekend. They had been married 12 years at the time of the parole hearing. The Board received letters from prison officials praising Gozy for his job skills and his ability to work well with his supervisors.
Gozy had been accepted for counseling and job placement by Pride Industries upon his release. His three-year parole plan included living with his wife and working in plumbing or air conditioning jobs, furthering his education in the heating and air conditioning field, continuing to attend AA meetings, doing volunteer work at a hospital and saving to buy a home for his family. His wife’s adult son offered to provide Gozy with a vehicle and financial support to help him get started.
The Governor reversed the Board’s grant of parole, citing two reasons: the nature of the crime and Gozy’s failure to accept responsibility for his actions. The murder, according to the Governor, was “especially vicious,” “demonstrated an exceptionally callous disregard for human suffering and life” and went beyond just the elements of second degree murder because Gozy also robbed the victim of $50. The Governor concluded that “[t]he gravity of the second-degree murder committed by Mr. Gozy is alone sufficient for me to conclude presently that his release from prison would pose an unreasonable public-safety risk.” Further, the Governor concluded that Gozy’s failure to accept responsibility for his actions warranted reversal of the Board’s grant of parole. As evidence of this failure the Governor cited Gozy’s initial denial of any participation in the crimes and his claims that You threatened to stab him if he did not stab Gondorilla, a minimization of his involvement he expressed as recently as 2006, when, at his parole hearing, he insisted that he participated in the stabbing mainly “‘out of fear’” of You.
The Governor’s decision preceded our Supreme Court’s decision in In re Lawrence (2008) 44 Cal.4th 1181.
After the Governor, for the third time, reversed the Board’s decision to grant parole, Gozy filed a petition for a writ of habeas corpus in the Los Angeles County Superior Court. Finding that the Governor’s decision was “not supported by some evidence,” the court vacated that decision, reinstated the Board’s decision and ordered Gozy “released in accordance with the parole date that the Board calculated.” The court determined that there was no rational nexus between the gravity of the commitment offense, second degree murder, and Gozy’s current dangerousness and “there is no evidence in the record to support [the] conclusion” that Gozy has failed to accept responsibility for his conduct.
DISCUSSION
The Attorney General does not attempt to defend the Governor’s decision based on the facts of the murder itself. (See In re Lawrence, supra,44 Cal.4th at p. 1212.) Rather, he contends that Gozy’s failure to accept responsibility for his actions provides “some evidence” that Gozy “remains a current threat to public safety.”
When, as here, a superior court grants relief on a petition for habeas corpus without an evidentiary hearing we review de novo whether the record contains “some evidence” that the prisoner constitutes a current threat to public safety. (In re Lazor (2009) 172 Cal.App.4th 1185, 1192.) Applying that standard, we, like the superior court, conclude that the Governor’s decision to deny Gozy parole is unsupported by some evidence in the record.
The Governor argues some evidence in the record “suggest[s] that Mr. Gozy may not accept responsibility for the crime.” He points to Gozy’s initial statement to the police that You was entirely responsible for the murder and robbery and that upon further questioning he admitted that he stabbed Gondorilla, claiming, however, that he only did so at You’s instruction. In 1994, seven years after his conviction, he continued to minimize his responsibility when he told a life-term evaluator that You threatened to stab him if he did not stab Gondorilla and that You, not he, robbed Gondorilla. During his parole hearings in 1996, 1998 and 2006 he continued to claim that the main reason he participated in the stabbing of Gondorilla was his fear of You.
According to the Governor, Gozy’s denial of participation in the robbery and claimed fear of You are inconsistent with the evidence and Gozy’s own admitted conduct. Thus the Governor points out that contrary to Gozy’s version of the events, two witnesses reported that Gozy did participate in the robbery. His claimed fear of You, the Governor argues, is belied by Gozy’s admission that, after the killing, You and Gozy returned together to Gozy’s house and fell asleep there and by Gozy’s testimony at his 2005 parole hearing that “in 1992, he and Mr. You ‘got a chance to sit down’ and talk about the circumstances surrounding the murder.”
These facts, however, do not constitute evidence that Gozy currently is failing to take responsibility for Gondorilla’s murder.
Although Gozy initially denied any involvement in the crime, he thereafter admitted that he stabbed Gondorilla and pleaded guilty to second degree murder and robbery. Since first admitting the murder, Gozy has consistently maintained that he participated out of fear of You. None of the evidence the Governor relies on contradicts Gozy’s claims. As the trial court correctly observed, if the prisoner’s version of events is not “physically impossible” and does not “strain credulity” such that it is “delusional, dishonest or irrational,” the prisoner’s continued insistence on a version of the crime that minimizes his culpability but is not necessarily inconsistent with the evidence “does not support the [Governor’s] finding that he remains a danger to public safety.” (In re Palermo (2009) 171 Cal.App.4th 1096, 1112.) Furthermore, Gozy has not used his fear of You as a justification for committing the crimes. On the contrary, he has acknowledged that by choosing to protect himself by killing another person he made a bad decision—one that he would not make again. Thus, at the parole hearing Gozy testified, “I wouldn’t allow fear to overcome me... [b]ecause I’m more mature in my life today. I make better choices in my life today.... [T]oday I know, for myself, that no matter what the outcome is, it cannot be as worse as taking someone’s life.”
We also conclude that a remand to the Governor for further consideration would amount to an idle act. (See In re Aguilar (2008) 168 Cal.App.4th 1479, 1491.)
The Governor seeks to distinguish Aguilar on the ground that neither we nor the trial court have a basis to decide that remand to the Governor would be an idle act because the entire record of the parole hearing is not included in the record before us. We disagree. The text of the Governor’s decision shows that the Governor had the entire record of this parole hearing before him when he made the decision, as well as the records of all of Gozy’s previous parole hearings. Nevertheless, the Governor does not identify what portions of the record are missing from the habeas petition and return or what relevant information the excluded documents contain that would support a decision to deny parole. Under these circumstances no valid purpose would be served to remand for further gubernatorial review.
DISPOSITION
The order is affirmed.
We concur: CHANEY, J., JOHNSON, J.