Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Super. Ct. No. NCR42048
BLEASE, J.
Petitioner Scott Graves seeks release on parole from a sentence of 15-years-to-life for a second degree murder committed when he was 17 years old.
On January 12, 1996, petitioner and three other young men murdered Robert Mehringer. Graves admitted to punching Mehringer in the face three times during a fight between Mehringer and the four assailants, but the cause of Mehringer’s death was a stab wound (one of 27 total cutting wounds) inflicted by Jason Webber. Two days after the killing, Graves turned himself in to police, and eventually pled guilty to second degree murder, for which he received a sentence of 15-years-to-life.
At Graves’s first parole hearing in 2008, the Board of Parole Hearings (the Board) denied parole for one year. Although the Board stated in its decision that there was “very little concern on the part of this Panel that you’re going to be a risk to society[,]” it expressed concern about contradictions in Graves’s psychological evaluation “with regard to [his] potential violence relative to drinking and/or drugging and the fact that it did not appear to be a major factor in your life or it did.” It ordered a second psychological examination but a further review concluded that the evaluation did not need to be revisited.
Tehama County Superior Court denied Graves’s petition for writ of habeas corpus on the ground that Graves’s psychological report indicated his risk of future violence was low to moderate, which constituted some evidence to support the decision to deny parole.
In reviewing the Board’s determination, we confine our review to the stated findings of the Board. (In re DeLuna (2005) 126 Cal.App.4th 585, 593.) We do not speculate about findings not made by the Board. (Id. at p. 594.) The Board’s reasoning must establish current dangerousness, for “current dangerousness (rather than the mere presence of a statutory unsuitability factor) is the focus of the parole decision....” (In re Lawrence (2008) 44 Cal.4th 1181, 1210.) As noted, the board found “very little concern... that you’re going to be a risk to society.”
We shall grant Graves’s petition because the Board’s stated reason for denying parole, i.e., confusion about whether Graves’s psychological report indicated he had a history of drug or alcohol abuse, is not probative of whether he remains a danger to the public.
FACTUAL AND PROCEDURAL BACKGROUND
Red Bluff police found Mehringer’s body in the area of Brickyard Creek on the morning of January 12, 1996. The area showed signs of a struggle, and the body exhibited slash and stab wounds, as well as blunt force trauma. Mehringer’s blood/alcohol level was.34 percent. Witnesses stated they heard a male voice moaning for help around 1:00 a.m.
Two days later, Graves went to the police department claiming to be a witness in the case. He stated that he and his friend, Keith Haney, were in Red Bluff looking for Graves’s girlfriend and for gas money, when they met Mehringer. They asked Mehringer for money, but he said he did not have any. They proceeded to the Jackpot Market, where Mehringer bought two six-packs of beer. They walked from the market to the bridge, and Mehringer spotted Vincent Lombardo and Jason Webber. Mehringer thought he knew them, and crossed the street to meet them. All five then proceeded to the bridge to drink the beer.
Lombardo suggested to Graves that they “jack this fool [and] take his money.” Before they could put this plan in motion, Mehringer and Webber began arguing. Everyone except Graves began kicking and punching Mehringer. Mehringer went into the creek, but Lombardo enticed him out by telling him everything was okay. When Mehringer came out, the fight continued, and this time Graves participated by striking Mehringer three times in the face when Mehringer grabbed his shirt.
Mehringer was beaten until he fell to the ground. After he collapsed, Lombardo checked his pockets, but found no wallet. Graves patted Mehringer’s pockets in hopes of finding a wallet, but did not find one. As the four walked away from Mehringer, Webber stated that he had stabbed Mehringer 27 times. Graves did not know Webber was stabbing the victim, but thought instead that Webber had been punching him. When Graves found out the victim had died, he went to the police.
A. Graves’s Drug and Alcohol Use
The probation report stated that Graves admitted to consuming alcohol (wine or beer) approximately once per month, to using methamphetamine three times in his life, and to using marijuana a few times. He last used drugs about one and a half years prior to the offense. A psychological evaluation was performed on Graves in 1996, and he admitted to the psychologist that he drank beer once per month, and had tried methamphetamine and marijuana, but that he did not like it.
His more recent psychological evaluation, performed in 2007, stated that he acknowledged trying alcohol, marijuana, and methamphetamine. It stated Graves “acknowledged that he drank excessive amounts of alcohol on the night of his life crime, but he declared that he was never a regular user of any of these substances and that he was never addicted to or dependent on any substance.”
During the parole hearing Graves admitted he tried alcohol, marijuana, and methamphetamine to “fit in,” but that he never got addicted to drugs because he did not like them. He told the Board that he went to Narcotics Anonymous (NA) just to learn, even though he did not have a problem. He claimed he was not drinking prior to the crime itself, but had two beers at most when he and the others were under the bridge. He stated he had made the decision never to drink again, and that he had quit smoking about two years earlier, smoking being the only addiction he had.
B. Home Environment
In a 1996 report prepared pursuant to Welfare and Institutions Code section 707, subdivision (b), the probation officer indicated Graves’s family was “dysfunctional” and unable to effectively communicate or interact appropriately. Graves’s father was physically abusive.
Graves’s first psychological evaluation indicated Graves reported that he was never physically abused by his parents, and that his relationship with them had actually improved since his incarceration. He reported no drug or alcohol abuse in his family, and no family history of trouble with the law.
The 2007 psychological evaluation indicated Graves reported his father sometimes hit him, but that the father’s actions did not rise to the level of abuse.
At the time of the parole hearing, Graves’s father had died. Graves stated he planned to live with his mother if paroled. His 31-year-old brother and 24-year-old sister also lived with his mother. His sister had a two-year-old child. His brother was unemployed. His mother had a three bedroom house. He would live in one of the bedrooms. His brother lived in a trailer on the property.
C. Conduct Prior to Crime and in Prison
In 1994, when Graves was 16, he was charged with giving false information to a peace officer, a misdemeanor. He admitted the charge, was admonished, and the case was dismissed. The incident occurred when his unlicensed female friend was driving his mother’s car and got in an accident. He claimed he was driving to protect the girl. Graves had no other record.
Graves received one CDC 115 rules violation report in 2003 when he failed to report to school. He stated he went to an NA class instead of going to school. He also received 10 CDC 128-A Custodial Counseling Chronos. The Board indicated these were for such things as reporting late for work and failing to report, and characterized them as “silly.” These were Graves’s only negative behavioral reports while in prison.
“When misconduct is believed to be a violation of law or is not minor in nature, it shall be reported on a CDC Form 115 (Rev. 7/88), Rules Violation Report.” (Cal. Code Regs., tit. 15, § 3312, subd. (a)(3).)
“When similar minor misconduct recurs after verbal counseling or if documentation of minor misconduct is needed, a description of the misconduct and counseling provided shall be documented on a CDC Form 128-A, Custodial Counseling Chrono.” (Cal. Code Regs., tit. 15, § 3312, subd. (a)(2).)
While in custody, Graves has been involved in numerous religious programs and completed several bible courses. Graves told the Board he was “saved” in 1998. He obtained a vocational certificate for janitorial and auto body work, and received above average ratings from his supervisors. Graves participated in a substance abuse program, and went through NA. He also was in project CALM, which stands for Conflict Anger Lifelong Management. Graves completed numerous vocations and self improvement units. He was taking college courses at the time of the parole hearing.
D. Psychological Evaluation
Graves’s 2007 psychological evaluation employed three separate assessment guides to estimate his risk for future violence. The psychopathy check list-revised assessment placed Graves in the low range, suggesting he does not possess traits or patterns consistent with a psychopathic profile. The learning styles/case management inventory assessment also placed Graves in the low category, indicating a very low (6.9 percent) risk of recidivism.
The history-clinical-risk 20 assessment predicted a low to moderate likelihood Graves would become involved in a violent offense if released. This test presented three domains of assessment. The historical domain predicted a high risk of future violence. This was based on Graves’s early maladjustment issues, the fact that he was only 17 at the time of his first violent offense, and what the psychologist termed his “history of alcohol abuse.” The report acknowledged that the historical assessment by definition is not amenable to significant change. The second domain of assessment was the clinical domain. The psychologist stated Graves demonstrated “somewhat deficient insight and some impulsivity concerns[,]” but otherwise showed no evidence of negative attitudes, unresponsiveness to treatment, psychopathology, or psychopathy. In the clinical domain, Graves presented a low to moderate risk of future violence.
In the future risk domain, the report found Graves had made specific plans for life on parole, but that living with his parents might be a “turbulent” environment, and that his family might not have the emotional resources to support him. The report found he presented a low risk of future violence while in prison and a low to moderate risk of future violence outside of prison.
E. Parole Board Decision
The Board found Graves not suitable for parole and denied parole for one year. The Board found Graves’s behavior and programming in prison had been “wonderful[,]” but cited two areas of concern. First, it requested another psychological evaluation because of confusion “with regard to [Graves’s] potential violence relative to drinking and/or drugging and the fact that it did not appear to be a major factor in [Graves’s] life or it did.” The Board stated that the biggest area of concern was the psychiatric evaluation because the panel was left with “some contradictory information” with regard to Graves’s drinking and risk assessment. The Board requested another psychiatric evaluation before Graves’s next parole hearing.
Second, the Board felt that an alternative parole plan incorporating transitional housing would be better for Graves. However, the Board did not make this a requirement, but merely requested Graves “give it some thought.” The Board stated that Graves’s parole plans were “fine” except that an effort to explore transitional housing would be a good choice and would serve him well at his next hearing.
The Board stated that it found Graves to be “an extraordinarily honest man[,]” and that there was “very little concern on the part of this Panel that you’re going to be a risk to society.” Nevertheless, it stated that, “with [the] psych [report] being what it is, we’ve got to get that straightened up and we’re going to order another one.”
No additional psychological report has been prepared. A secondary review of the 2007 report was conducted by a senior psychologist at the Department of Corrections and Rehabilitation, and the review concluded that the evaluation did not need to be revisited.
DISCUSSION
The Board must grant parole to a prisoner “unless it determines that public safety requires a lengthier period of incarceration for the individual because of the gravity of the offense underlying the conviction. [Citation.]” (In re Rosenkrantz (2002) 29 Cal.4th 616, 654.) Parole applicants have an expectation that parole will be granted unless the Board, in its discretion, finds them unsuitable for parole in light of the circumstances specified by statute and regulation. (Ibid.)
The circumstances that tend to show unsuitability for parole are that the prisoner: (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) previously has 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. (Cal. Code Regs., tit. 15, § 2402, subd. (c).)
The circumstances that tend to show suitability for parole are that the prisoner: (1) does not possess a violent juvenile record; (2) has a reasonably 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 has 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; and (9) has engaged in institutional activities indicating an enhanced ability to function within the law upon release. (Cal. Code Regs., tit. 15, § 2402, subd. (d).)
Courts are authorized to review the factual basis of the Board’s decision denying parole in order to ensure the decision comports with the requirements of due process. (In re Rosenkrantz, supra, 29 Cal.4th at p. 658.) Judicial review “may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation.” (Ibid.) However, mere consideration of the specified factors is insufficient to comport with due process. Rather, the Board’s reasoning must establish a rational nexus between the factors and the ultimate determination of current dangerousness, for “current dangerousness (rather than the mere presence of a statutory unsuitability factor) is the focus of the parole decision....” (In re Lawrence, supra, 44 Cal.4th at p. 1210.)
In reviewing the Board’s determination, we confine our review to the stated findings of the Board. (In re DeLuna, supra, 126 Cal.App.4th at p. 593.) We do not speculate about findings not made by the Board. (Id. at p. 594.)
In this case the Board’s determination appears to have been based upon only one finding, i.e., that the psychological evaluation was contradictory as to Graves’s history of alcohol and drug abuse. The Board stated that its “biggest concern” was the contradictory information on the psychiatric evaluation with regard to Graves’s drinking and risk assessment. It expressed confusion over the psychiatric evaluation’s determination of “potential violence relative to drinking and/or drugging and the fact that it did not appear to be a major factor in your life or it did.” Even though the Board also suggested Graves consider transitional housing upon his parole, the Board specifically stated that this was not a requirement, merely that he should give it some thought.
Likewise, the Board, after stating its reasons for denying parole, recited that the offense was “carried out in an especially cruel manner” because the killing “took a while[,]” no one rendered any aid to the victim, and the crime was motivated by money. The Board did not, however, give this as a reason for denying parole. Moreover, the Supreme Court has held that the aggravated nature of the offense in and of itself does not provide some evidence of current dangerousness unless there is other evidence in the record to indicate that the commission of the commitment offense remains probative to a determination that the prisoner is currently a threat to public safety. (In re Lawrence, supra, 44 Cal.4th at pp. 1214, 1221.) There was no other evidence in this record to indicate the commission of the offense remains probative to Graves’s current dangerousness.
We turn, then, to the sole reason given by the Board for the denial of a parole release date. The Board stated it would request another psychological evaluation because it was “left somewhat confused and contradicted with regard to your potential violence relative to drinking and/or drugging and the fact that it did not appear to be a major factor in your life or it did.” The confusion and contradiction apparently arose from the fact that the evaluation stated on the one hand that although Graves admitted drinking excessive amounts of alcohol on the night of the offense, he was never addicted to nor dependent on any substance and was not a substance abuser, and on the other hand that he had a history of alcohol abuse.
There is no evidence in the record before us to support a finding that Graves had a history of alcohol abuse. Graves consistently stated he drank wine or beer approximately once per month. Although this may have been illegal given his age, the consumption of wine or beer only once per month can hardly be characterized as alcohol abuse. Also, he consistently claimed to have had no more than two beers the night of the offense.
Moreover, the psychological evaluation found no evidence to support recurrent use of alcohol; therefore, no diagnosis of substance abuse. Still more important, there is no evidence of current drug or alcohol use, nor is there any evidence Graves has used alcohol or drugs during the 12 (now 13) years he has been in prison. He has been successful in NA and has completed numerous other courses involving substance abuse education. In light of his now 13 years of sobriety, combined with the absence of evidence to support a diagnosis of substance abuse, we fail to see the nexus between the conflicting remarks in his psychological evaluation regarding past alcohol use and a determination of current dangerousness.
This lack of a rational nexus between the conflicting statements regarding past alcohol use and the determination of current dangerousness is especially troubling in light of other statements made by the Board. The Board found Graves to be “an extraordinarily honest man.” It stated Graves’s behavior and programming at prison had been “wonderful.” Most important, it stated there was “very little concern on the part of this Panel that you’re going to be a risk to society.”) If this was the Board’s determination, it should have granted parole.
We do not base our determination on Graves’s argument that the denial of parole deprived him of the benefits of his plea agreement, and we specifically reject this argument. No plea agreement appears in the record before us. There is thus no evidentiary support for the notion that the prosecution agreed Graves would be released on parole at any specific time. Absent such evidence, Graves cannot establish that continued incarceration is a breach of the agreement. (See In re DeLuna, supra, 126 Cal.App.4th at p. 599.)
Having determined that the Board’s decision was not supported by some evidence of current dangerousness, we shall grant the writ of habeas corpus and remand the matter to the Board. “If the decision's consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner's petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law.” (In re Rosenkrantz, supra, 29 Cal.4th at p. 658.) However, proceeding “‘in accordance with due process of law’ does not mean the Board... is to be given an opportunity to reconsider the parole decision.” (In re Burdan (2008) 169 Cal.App.4th 18, 39.) Where the reviewing court determines there is no evidence in the record to support the decision of the Board denying parole, there is no reason to order the Board to conduct any further hearing on the matter in the absence of some new evidence about the prisoner’s post-hearing conduct. (In re Gaul (2009) 170 Cal.App.4th 20, 40.)
DISPOSITION
The petition for writ of habeas corpus is granted. The Board is directed to hold a new hearing within 30 days of the finality of this decision and to find Graves suitable for parole, unless new evidence of his conduct and/or change in mental state subsequent to the 2008 parole hearing is introduced and is sufficient to support a finding that he currently poses an unreasonable risk of danger to society if released on parole.
We concur: SCOTLAND, P. J., RAYE, J.