Opinion
NOT TO BE PUBLISHED
APPEAL from a grant of petition for writ of habeas corpus of the Superior Court of Los Angeles County No. BH006687 Peter P. Espinoza, Judge.
Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Jennifer A. Neill, Supervising Deputy Attorney General, and Gregory J. Marcot, Deputy Attorney General, for Appellant.
Marilee Marshall & Associates and Marilee Marshall, under appointment by the Court of Appeal, for Respondent.
ZELON, J.
INTRODUCTION
In 1986, Roger Hairston was convicted of second-degree murder and sentenced to a term of 15 years to life in prison. On May 8, 2008, the Board of Parole Hearings found Hairston unsuitable for parole. On Hairston’s petition for writ of habeas corpus, the trial court ordered the Board to “reconsider” its decision. After a subsequent hearing, the Board found Hairston suitable for parole.
On November 12, 2009, the Governor reversed the Board’s decision, concluding that Hairston’s “release from prison would pose an unreasonable risk of danger to society.” Hairston filed a second petition for writ of habeas corpus challenging the Governor’s decision. The trial court found that the record contained no evidence suggesting that Hairston posed a current risk to the public and ordered that he be released from custody.
On appeal, we find that the Governor’s decision is supported by some evidence that Hairston currently poses an unreasonable risk of danger to society and therefore reverse the grant of habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
The factual summary of the commitment offense is taken from Hairston’s probation report and a prior appellate decision affirming his conviction, which were incorporated into the record of the parole board hearing held on August June 24, 2009.
On December 25, 1985, Christina Bilhimer was sitting in the backseat of a car parked outside a Taco Bell restaurant. The owner of the vehicle, Darrell Walker, and a male passenger were sitting in the front seat. Petitioner Roger Hairston approached the car, grabbed Walker’s shoulder through the front window, pointed a gun at him and said “Don’t be a hero.... Give me the keys to your car.... What are you doing here with this honky tonk white bitch?” Walker handed the keys to Hairston, who then ordered the men to exit the vehicle. Hairston walked around to the passenger’s door, pulled the front passenger seat forward and asked Bilhimer, “Chris, where is it?, ” to which she responded, “I don’t have it.” Hairston then began hitting Bilhimer on the head with the firearm.
The parties’ briefs and numerous documents in the record spell the victim’s last name “Bilhimer.” However, other documents in the record spell her name “Billheimer.” For the sake of consistency, we adopt the spelling used by the parties.
While Hairston was interrogating Bilhimer, Walker ran into the Taco Bell and asked employees to call the police. Stacey Williams, the assistant manager of the Taco Bell, saw Hairston and Bilhimer struggling in the car, and then saw Hairston raise his arm and heard a gunshot. Hairston exited the vehicle, walked around to the driver’s side and cleaned the door. He then walked over to a waiting vehicle and was driven away.
Bilhimer suffered gunshot wounds to her forearm and head. The bullet entered Bilhimer’s right forearm, exited cleanly, and lodged in her brain, killing her. The path of the bullet indicated that Bilhimer was in a defensive position when shot, with her right arm covering her head. Two eye witnesses identified Hairston as the shooter.
At trial, Hairston admitted that he shot and killed the victim, but contended that the shooting was accidental. Hairston alleged that, on the night in question, he was searching for Bilhimer because he believed she had stolen his car. After learning that the victim was at a restaurant with two men, Hairston and his business associate, Ralph, located the group and began following them. Hairston stated that he wanted to approach Bilhimer alone, and was only able to convince Ralph to stay behind by agreeing to take Ralph’s gun with him. According to Hairston, he “never intended to use the gun” and was “shocked and surprised when the gun went off.” Hairston contended that the firearm accidentally discharged when Bilhimer “flailed her arms around” as he tried to drag her from the car. The jury convicted Hairston of second-degree murder.
During his pre-sentencing interview with the probation office, Hairston maintained that the gun accidentally “discharged when he was struggling with the victim” and that “he had no intention of using the weapon, only that he had it in his possession as a[n] ‘equalizer’ as the victim was accompanied by two men.” Hairston also continued to assert that he was looking for Bilhimer because he wanted to question her about the disappearance of his vehicle.
The probation report contained information contradicting some of Hairston’s trial testimony. First, the report did not confirm Hairston’s account that Ralph accompanied him to the Taco Bell and that Ralph brought the firearm that was used in the shooting. Second, the report stated that a police investigation concluded Hairston had been looking for Bilhimer because she had stolen drugs from him, not because she took his car. According to the police report, Hairston had been dealing drugs out of his house. Prior to the shooting, Bilhimer allegedly broke into Hairston’s house and removed a large quantity of drugs. The police posited that “the victim’s murder was not due to the theft of a vehicle as reported by the defendant but to the theft of the ‘stash’ from his bedroom.”
At sentencing, the trial court imposed a term of 15 years to life, plus a consecutive two year term for a firearm enhancement. Hairston’s minimum parole date was September 22, 1996.
B. Hairston’s Record During Incarceration
During his 22 years of incarceration, Hairston “maintained an almost blemish-free disciplinary record.” He received only one “CDC 115” for an administrative rules violation that involved cursing at a prison guard. In addition, Hairston was counseled several times for minor misconduct, the last of which occurred in 1993. Since 1996, Hairston had maintained the lowest possible classification score for his offense. (See Cal. Code Regs., tit. 15, § 3375, subd. (d) [“A lower placement score indicates lesser security control needs and a higher placement score indicates greater security control needs”].)
“A ‘CDC 115’ refers to a rules violation report that documents misconduct that is believed to be a violation of law or is not minor in nature. [Citations.]” (In re Rico (2009) 171 Cal.App.4th 659, 666, fn 2; see also Cal. Code Regs., tit. 15, § 3312, subd. (a)(3).)
Hairston’s prison records also indicated that, prior to sustaining an injury in 2005, he had received positive “Work Supervisor Reports” that ranged from “satisfactory to exceptional.” In addition, Hairston had obtained a GED, voluntarily participated in numerous self-improvement courses and acquired significant vocational training in auto mechanics, appliance repair and computer repair.
Throughout his incarceration, Hairston remained in frequent contact with his wife, who he planned to live with upon his release. Hairston also maintained contact with his six children, all of whom had written to him and sent letters of support.
C. Hairston’s Psychological Evaluations
The record contains only two psychological evaluations. The first evaluation occurred in 1990, and the second occurred in 2007.
1. Hairston’s 1990 psychological evaluation
Hairston’s 1990 evaluation, which is a single page and was prepared six years before he was eligible for parole, concluded that although the Petitioner had “accept[ed] culpability [for] the [commitment] offense, and [wa]s able, at least at a verbal level, to express remorse, ” he had failed to “internalize[e]” or “recogniz[e]... the gravity of his acting-out behavior.”
The evaluation further stated that although Hairston did not demonstrate any evidence of “psychosis or thought disorder, ” he displayed “an element of insouciance.” According to the evaluation, Hairston “appears willing to acquiesce to situational demands, but there is little to suggest an incorporation of a value system based on the anticipation of and predisposition to respond to even unsubtle expectations. In short, unresolved conflicts still exist within this inmate.” The evaluation diagnosed Hairston with “anti-social personality” and stated that the diagnosis was “directly related to th[e] inmate’s history of violent acting-out behavior.”
2. Hairston’s 2007 psychological evaluation
The second evaluation, which was conducted in January of 2007, “focuse[d] on information and events that ha[d] transpired since his last PBH psychological evaluation [in December 2002].” The evaluator, Dr. Joseph Nevotti, stated that his evaluation was based on an “in-depth Structured Psychological Evaluation of Mr. Hairston, including a Mental Status Evaluation, in addition to the review of his [past] files].”
The record does not contain a copy of Hairston’s 2002 evaluation or any other parole hearing psychological evaluations.
a. Hairston’s incarceration record
According to the evaluation, Hairston had “never been a management problem during his 21 years of incarceration” and “had a positive and consistent work record until 2005, when he experienced a work-related injury.” The evaluation also noted that Hairston had obtained a GED, participated in numerous self-improvement programs and “received significant vocational training.”
Hairston informed the evaluator that, if paroled, he planned to live with his wife, who had a retirement income and owned two rental properties. Hairston’s children intended to provide additional support. Dr. Nevotti concluded that “[g]iven the housing, financial and social support [Hairston] reports are available to him on the outside, I believe he does have a viable plan for successful living on the outside.”
b. Hairston’s mental evaluation and attitude toward the commitment offense
Throughout the interview process, Hairston presented well, and was able to “express himself” in a “clear and intelligible manner.” Dr. Nevotti did not find any evidence that Hairston “ha[d] a problem with drugs/alcohol” or suffered from any “major mental illness, ” and described the Petitioner as being “responsible for his actions, and... [having] the capacity to understand and abide by the rules of CDCR as well as the laws of society.”
However, the evaluation also noted that Hairston “is a man with a long, albeit sporadic, criminal history that dates from 1955.” Prior to his second-degree murder conviction, Hairston had, on separate occasions, been convicted of burglary, carrying a firearm without a license and receiving stolen property. He had also been arrested, but not convicted, for assault, aggravated assault and assault with a deadly weapon. Nevotti commented that, when asked about his prior criminal conduct, Hairston “always had a plausible reason why it was not as bad as it appeared and... views himself as the victim in many of his arrests, and as someone who was ‘in the wrong place at the wrong time.’”
In describing the commitment offense, Hairston stated, “in a flat, matter-of-fact manner: ‘I did it and I take responsibility for my action, ’” later adding “‘I still can’t figure out why I did it. She was no threat to me.’” Nevotti described Hairston’s reaction as a “superficial, emotionally blunted account, ” but concluded that his “blunted affect” was not caused by a mental disorder:
My Mental Status Exam indicates he is not a psychopath, he does not suffer from dissociative disorder, nor does he have any psychopathology that explains his inability to more deeply feel his crime or come to terms with the underlying causes. Rather, I conclude that he is what he appears to be: a superficial, 75-year-old, unsophisticated man with blunted, shallow affect who has little empathy or emotional depth.
Nevotti further explained that Hairston’s muted reaction was the result of a “deficit in his ability to experience a full range of emotions and/or the result of the superficial worldview of a religious fundamentalist rather than as a suggestion of underlying psychopathology.”
Nevotti stated that he did not believe Hairston “feels genuine remorse for his life crime” or “fully accepts responsibility for his life crime, either because he doesn’t believe he was at fault and/or because he has limited capacity to experience emotion.” Nevotti also concluded that Hairston’s expressions of remorse “represent[] the best of... Hairston’s ability to explore himself or develop insight into his behavior.”
c. Risk of violence
Nevotti concluded that although Hairston had failed to show true remorse or take full responsibility for the crime, he was “a low violence risk.” In making this determination, Nevotti considered static, dynamic and future risk factors. The evaluation stated that the only applicable “static or unchanging risk factor” was Hairston’s “prior arrest for violent acts, ” the last of which occurred in 1955.
In regards to “dynamic or more changeable risk factors, ” the evaluation stated that Hairston “has little insight about himself or his behavior, relying instead on stereotypical views based on religion. This area of behavior is usually amenable to change; however Hairston has shown very little interest – and may not have the ability – to address this problem.” Nevotti added that, in his “professional opinion, ” Hairston’s behavior had been “successfully modified and that he is as stable and productive as he will ever be; however, further attempts to modify his insight and emotional depth will not be fruitful.”
Finally, on future risk factors, the evaluation explained that Hairston was a low risk because he had a “viable plan for living on parole, ” would be “exposed to few significant destabilizers on the outside, ” “has a great deal of personal support on the outside and he has complied with remediation attempts.”
In summing up his evaluation, Nevotti stated that “there is much evidence that indicates Mr. Daniels [sic] is stable and that he is a low risk for violence, ” but noted that he continues to “lack[] empathy and insight.”
D. Hairston’s Parole Board Hearings
1. Hairston’s 2008 Board hearing and initial petition for writ of habeas corpus
On May 8, 2008, Hairston appeared before the Board of Parole Hearings, which found him unsuitable for parole. The Board’s decision was predicated on three factors: the nature of the commitment offense, Hairston’s prior criminal record and his lack of “remorse and insight into the commitment offense.” Hairston filed a petition for writ of habeas corpus arguing that the Board’s decision was not supported by any evidence that he posed a current risk to society.
The record does not contain a transcript of the 2008 hearing or any prior Board hearings.
On April 2, 2009, the trial court granted the writ, concluding that although Hairston’s life crime was heinous, there was “no evidence that the implication of dangerousness derived by the fact that petitioner committed the 1985 murder is still probative of his current level of dangerousness.” In support, the court noted that Hairston had “programmed extremely well” during his 22 years of incarceration and had never been disciplined for violent behavior or possession of drugs, alcohol or weapons. The trial court further concluded that Hairston’s criminal record was not relevant to his current dangerousness because his prior crimes were “temporally very remote, ” some of them occurring “over fifty years” ago.
The trial court rejected the Board’s finding that the inmate “did not show signs of remorse or insight, ” explaining that Hairston’s 2007 mental evaluation merely “stated there was a controversy as to whether petitioner does not have empathy or just does not project empathy.” The court noted that additional documentation in the record demonstrated that Hairston “feels remorse and has taken responsibility for his actions.”
The trial court ordered the Board to “reconsider its decision and to conduct a new hearing to determine Petitioner’s suitability for parole in accordance with the requirements of due process within 90 days.”
2. Hairston’s 2009 Board hearing
On June 24, 2009, the Board held a second hearing regarding Hairston’s parole eligibility. At the outset, Hairston’s counsel argued that the trial court had effectively ordered the Board to find the Petitioner suitable for parole. Although the Board did not dispute this assertion, it determined that the court’s order required it to proceed with the hearing.
The Board began by reviewing the circumstances of the commitment offense. Because Hairston elected not to discuss his crime, the Board incorporated into the record a 2002 statement in which Hairston insisted the shooting was an accident. When the Board asked Hairston whether he wanted to “use any other statements in the reports other than his one, ” Hairston responded “No, sir because that is the truth. [¶]... [¶] It is the truth sir.”
Hairston’s counsel stated “I am... going to exercise his right under 5011B of the Penal Code not to discuss the life crime.” Section 5011, subdivision (b) states “[t]he Board of Prison Terms shall not require, when setting parole dates, an admission of guilt to any crime for which an inmate was committed.” (See also Cal. Code Regs., tit. 15, § 2236 [“A prisoner may refuse to discuss the facts of the crime in which instance a decision shall be made based on the other information available and the refusal shall not be held against the prisoner”].)
In discussing whether he felt remorse for his crime, Hairston said that he felt “awful bad about it” and had written letters to the deceased and the deceased’s mother. When asked why he believed he should be released from prison, Hairston said he felt “genuine remorse for [his] crime” and wanted an opportunity to put his great grandchildren “on the right track so they won’t make the same mistake I made.” Hairston – who was 78 at the time of the hearing – also explained that he had acquired job skills in prison, was entitled to veterans’ benefits and had a family who would provide necessary support upon his release.
The Board reviewed approximately a dozen letters of support alleging that Hairston was fully rehabilitated and suitable for release. The Board also acknowledged that, during his incarceration, Hairston had remained virtually discipline free and had engaged in positive institutional programming, which included obtaining a GED, acquiring vocation skills and participating in numerous self-help groups.
The Board considered and incorporated into the record Hairston’s 2007 medical evaluation, noting that while Dr. Nevotti found Hairston’s “emotions to issues... was blunted, ” he concluded that the Petitioner was a “low risk for violence.”
After summarizing the materials in the record, the Board requested that the District Attorney provide its opinion regarding Hairston’s suitability for parole. The prosecutor stated that, in light of the Superior Court’s prior ruling, he would “not make a recommendation opposing parole:”
the Superior Court... pretty much went through ever[y] issue that could have been covered and found that there was not some evidence to support the denial and then for some reason ordered a new hearing. So I think to some exten[t] today, we’re limited to some new factor that wasn’t known as of May. And while the District Attorney’s office did question then the truthfulness of some of his assertions and really taking responsibility, I see nothing today new that would alter the conclusion of the Superior Court... with regard to the habeas writ.
The Board determined that although several factors suggested Hairston was unsuitable for parole, those factors were outweighed by the positive aspects of his case. With regard to unsuitability factors, the Board found the commitment offense was “troubling and disturbing... because of the manner in which it occurred.”
The Board also found Hairston’s “past criminal record” suggested he was not suited for parole, but determined that it was “restricted” from considering that factor as a result of the trial court’s prior ruling.
Despite “these negative circumstances, ” the Board determined Hairston “was suitable for parole” based on “the positive aspects of [his] case, ” which included “true remorse, ” “[advanced] age, ” “understanding of the nature and magnitude of the commitment offense, ” positive “institutional behavior” and “realistic[, ]... viable parole plans.”
E. The Governor’s Reversal of the Parole Board Decision
On November 9, 2009, the Governor issued a letter reversing the Board’s decision, accompanied by a statement of reasons. The Governor recognized numerous positive factors that weighed in Hairston’s favor, including: (1) his “efforts in prison to enhance his ability to function within the law, ” (2) “favorable evaluations from various correctional and mental-health professionals over the years, ” and (3) detailed parole plans.
Despite those positive factors, the Governor concluded that Hairston remained unsuitable for parole based on three factors. First, Hairston’s crime was “especially atrocious because multiple victims were involved” and because the shooting was “carried out in a dispassionate and calculated manner.” The Governor noted that the victim “didn’t have a weapon or a means to defend herself, ” and “[Hairston’s] motive for the crime” was “exceedingly trivial in relation to the magnitude of the offense that he committed.”
Second, “Hairston has not fully accepted responsibility for the murder because he has consistently minimized his conduct in the crime over the years.” The Governor explained that while Hairston was not required to admit to the life offense to be suitable for parole, “his ongoing contention that the murder was an accident is not supported by the record.” In support, the Governor cited trial testimony indicating that Hairston raised his arm toward the victim immediately before the shot was fired and forensic evidence showing the victim was in a defensive position, with her arms covering her head, when the firearm discharged. The Governor also found that Hairston’s “credibility” was “undermined” by his continued insistence that the victim had stolen his car, despite information in the probation report indicating that “he murdered the victim over stolen drugs.”
Finally, the Governor expressed concern over “Hairston’s long standing lack of insight into the causative factors of his life offense and failure to exhibit genuine empathy and remorse for his victim.” The Governor referenced portions of the 2007 psychological evaluation stating that Hairston did not feel “genuine remorse for his life crime” and “has little insight about himself or his behavior....” The Governor asserted that Hairston’s “lack of empathy and remorse” and his failure to “fully explore the circumstances that led to his violence” indicated that Hairston “is capable of rationalizing such conduct in the future.”
In sum, the Governor found that Hairston’s failure to “accept full responsibility for his criminal conduct” or “gain sufficient insight into the factors that led to the murder” rendered “his life offense still relevant to [the] determination that Hairston continues to pose an unreasonable risk of danger if released to the public.”
F. Hairston’s Second Petition for Writ of Habeas Corpus
On February 3, 2010, Hairston filed a petition for writ of habeas corpus challenging the Governor’s reversal of the Board’s parole decision. The trial court granted the writ, concluding that “the record does not contain ‘some evidence’ to support the determination that the Petitioner currently presents an unreasonable risk of danger to society and, is, therefore, not suitable for release on parole.” Although the court agreed that the commitment offense was heinous, it ruled that the Governor had failed to identify any evidence showing a “rational nexus between the offense and Petitioner’s current dangerousness... on the basis of the Petitioner’s failure to fully accept responsibility for the offense and his lack of insight regarding the causative factors underlying the offense.”
Based on its review of the record, the court found that “the Petitioner has always accepted responsibility for the offense” and that “his version of the offense over the years has been consistent.” The court further asserted that there was no basis to conclude that “Petitioner’s version provides evidence that he remains a current risk of violence.”
The court also rejected the Governor’s contention that Hairston’s “lack of insight” or “failure to exhibit genuine empathy” constituted “some evidence” of current dangerousness. Although the court acknowledged that Hairston’s 2007 medical evaluation stated that Hairston had gained little insight about himself or his criminal behavior, the court discredited the evaluation for several reasons.
First, the court explained that the evaluator’s statement that Hairston had not accepted full responsibility for his life crime was contradicted by the fact that the Hairston told the evaluator “I did the crime and I take full responsibility.” In the court’s view, this evidence indicated the evaluator had predetermined that Hairston could never show remorse, “no matter what he says, or does.”
Second, the trial court asserted that the evaluator had improperly relied upon “his opinion regarding the Petitioner’s religious beliefs to support his conclusion that the Petitioner is unable to address the problem of showing remorse.”
Third, the court noted that, on several occasions, the evaluator “incorrectly referred” to Hairston as “Mr. Daniels, ” which “indicated that the evaluator made significant errors in preparing the report and possibly mixed up the Petitioner’s case with another inmate’s case.”
The medical evaluation is seven pages long and refers to the Petitioner as “Mr. Hairston” approximately 50 times. However, the final paragraph of the evaluation incorrectly refers to Hairston as “Mr. Daniels” three different times.
Based on these deficiencies, the court ruled that the 2007 medical evaluation was unreliable and that the remaining evidence demonstrated Hairston had adequate insight into his commitment offense:
The court finds the statements in the 2007 psychological report which were cited by the Governor were filled with errors and questionable statements about the Petitioner’s religious views, and do not provide some evidence of his lack of insight. This is especially true because the Petitioner still fell within the low risk range for future violence under the standard risk assessment tests.
The Petitioner’s adequate insight is shown in the record by his numerous statements accepting responsibility and expressing remorse, his letters written to the victim, his work in self help programs and in his statements made to the Board.
The court ordered the Governor to reinstate the Board’s decision and release Hairston “in accordance with the parole date that the Board calculated.” The Governor filed a timely appeal.
DISCUSSION
A. Legal Principles Governing Parole-Suitability Determinations and Standard of Review
1. Statutory framework governing determination of parole suitability
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 parole regulations provide that “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 its [parole] decision, the Board is directed to consider ‘[a]ll relevant, reliable information’ available to it, including ‘the circumstances of the prisoner’s social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime;... and any other information which bears on the prisoner’s suitability for release.’ (Cal. Code Regs., tit. 15, § 2402, subd. (b).)” (In re Gaul (2009) 170 Cal.App.4th 20, 31-32 [disapproved of on other grounds in In re Prather (2010) 50 Cal.4th 238, 252 (Prather).) The controlling regulations list numerous factors “tend[ing] to indicate” whether an inmate is suitable or unsuitable for parole. (Cal. Code Regs., tit. 15, § 2402, subds. (c), (d).) However, these suitability factors are only intended to provide “general guidelines... [and] the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel.” (Ibid.)
The regulations state that circumstances “tend[ing] to indicate” unsuitability for parole include: (1) the commitment offense was carried out in an “especially heinous, atrocious or cruel manner”; (2) a “[p]revious [r]ecord of [v]iolence”; (3) “a history of unstable or tumultuous relationships with others”; (4) “[s]adistic [s]exual [o]ffenses”; (5) “a lengthy history of severe mental problems related to the offense”; and (6) “[t]he prisoner has engaged in serious misconduct in prison or jail.” (Cal. Code Regs., tit. 15, § 2281, subd. (c).)
“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 (Lawrence).)
2. Standard of review
The Governor conducts a de novo review of the Board’s decisions on the basis of the same factors the Board is required to consider, and “has discretion to be ‘more stringent or cautious’ in determining whether a defendant poses an unreasonable risk to public safety. [Citation.]” (In re Shaputis (2008) 44 Cal.4th 1241, 1258 (Shaputis); see also Cal. Const., art. V, § 8, subd. (b).)
Our review of the Governor’s parole decision is limited to determining “whether there exists ‘some evidence’ that an inmate poses a current threat to public safety, rather than merely some evidence suggesting the existence of a statutory factor of unsuitability. [Citation.]” As recently explained by the California Supreme Court, “in evaluating a parole-suitability determination by either the Board or the Governor, a reviewing court focuses upon ‘some evidence’ supporting the core statutory determination that a prisoner remains a current threat to public safety – not merely ‘some evidence’ supporting the Board’s or the Governor’s characterization of facts contained in the record.” (Prather, supra, 50 Cal.4th at pp. 251-252.)
“[R]eview under the ‘some evidence’ standard ‘simply ensures that parole decisions are supported by a modicum of evidence and are not arbitrary and capricious.’ [Citation.]” (In re Bettencourt (2007) 156 Cal.App.4th 780, 798.) Accordingly, our review of the record is narrowly circumscribed. “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 (2002) 29 Cal.4th 616, 677 (Rosenkrantz).) Moreover, “‘the precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor.” (Shaputis, supra, 44 Cal.4th at pp. 1260.)
We “review the trial court’s decision and the contentions of the parties in light of the materials that properly were before the court.” (Rosenkrantz, supra, 29 Cal.4th at p. 677.) Where, as here, “the trial court’s findings were based solely upon documentary evidence, we independently review the record.” (Ibid.)
B. The Record Contains Some Evidence that Supports the Governor’s Parole Decision
The Governor listed three factors in support of his decision that Hairston remained unsuitable for parole: (1) the heinous manner in which the crime was committed; (2) Hairston’s failure to fully accept responsibility for the murder, and; (3) Hairston’s “longstanding lack of insight into the causative factors of his life-offense and failure to exhibit genuine empathy and remorse for his victim.”
1. Commitment offense
The parole regulations state that one factor “tend[ing] to indicate” unsuitability for parole is that the commitment offense was carried out in an “especially heinous, atrocious or cruel manner.” (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1).) It is undisputed that the record contains sufficient evidence to support the Governor’s conclusion that the Hairston’s offense was “especially atrocious.” As the Governor noted, the crime involved multiple victims, the motive was extremely trivial and Hairston demonstrated callous disregard for human suffering by shooting an unarmed victim who was crouched in a defensive position. (See Cal. Code Regs., tit. 15, § 2402, subd. (c) (1)(A), (D) & (E).)
However, the fact that there is evidence that the commitment offense was carried out in a heinous or cruel manner does not, standing alone, constitute some evidence that a prisoner remains a current threat to public safety:
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 post-incarceration 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 to the statutory determination of a continuing threat to public safety.
(Lawrence, supra, 44 Cal.4th at p. 1214.)
In this case, the Governor did not base his decision merely on the commitment offense, but also relied on evidence that allegedly shows Hairston has not accepted full responsibility for his offense or gained insight into the causative factors of his crime. We therefore must determine whether this additional evidence is sufficient to “establish that the circumstances of petitioner’s crime... continue to be probative to the issue of his current dangerousness.” (Shaputis, supra, 44 Cal.4th at p. 1261, fn. 20.)
2. Lack of insight and failure to accept responsibility
a. In re Shaputis
In In re Shaputis, supra, 44 Cal.4th 1241, the California Supreme Court held that, “[a]n inmate’s lack of insight into, or minimizing of responsibility for, previous criminality” can provide a logical nexus between the gravity of a commitment offense and a finding of current dangerousness. (In re Lazor (2009) 172 Cal.App.4th 1185, 1202 [citing Shaputis, supra, 44 Cal.4th at pp. 1260-1261.]; see also In re Rodriguez (2011) 193 Cal.App.4th 85, 98 (Rodriguez) [“As Shaputis illustrates.... an inmate’s ‘lack of insight’ can provide a logical nexus between the gravity of a commitment offense and a finding of current dangerousness”].) The petitioner in Shaputis shot and killed his wife after years of domestic abuse. At trial, the petitioner contended that the shooting was accidental, despite significant evidence to the contrary. The jury convicted the petitioner of second-degree murder and he was sentenced to a term of 15 years to life in prison.
Shaputis’s prison record demonstrated that he had remained “discipline free throughout his incarceration, ” “ha[d] a long and positive work record, ” and “completed all applicable therapy programs.” (Shaputis, supra, 44 Cal.4th at p. 1249.) In addition, his psychological evaluations consistently concluded that, as long as he maintained his sobriety, he would present a “low risk” to the public. (Id. at pp. 1251-1252.)
However, the evaluations also stated that the “petitioner ha[d] a reduced ability to achieve self-awareness and to develop relationships with others.” (Shaputis, supra, 44 Cal.4th at p. 1250.) His most recent evaluation asserted that the petitioner had “a ‘schizoid quality to interpersonal relationships, ’ and... ‘limited... insight’ regarding his antisocial behavior and the circumstance that his history of alcohol abuse was closely associated with his history of domestic violence. The report stated, nevertheless, that ‘there appears little potential benefit at this point in his development to attempt to modify this [character-based] structure.’” (Id. at p. 1251.)
Based on this record, the Board granted the petitioner parole, but the Governor reversed. In support, the Governor cited the circumstances of the offense and “‘petitioner’s lack of insight into the murder and into the years of domestic violence that preceded it.’” (Shaputis, supra, 44 Cal.4th at p. 1258.) The Supreme Court affirmed the decision, ruling that the record contained some evidence supporting the Governor’s contention that the petitioner’s lack of insight rendered him unsuitable for parole. The Court noted that, despite significant evidence that “he killed his wife intentionally, ” the petitioner maintained that the shooting was an accident. (Id. at p. 1260.) The Court also referenced the petitioner’s most recent psychological evaluation, which concluded that he had limited insight into his the causative factors of his criminal behavior.
In its decision affirming the Governor’s parole decision, the Supreme Court noted that, as in this case, the Board initially found petitioner unsuitable for parole but changed its ruling after the court issued a writ of habeas corpus finding that the Board’s denial of parole was not supported by some evidence of current dangerousness. (See Shaputis, supra, 44 Cal.4th at p. 1260, fn. 19.)
According to the Court, the petitioner’s “claim [that he accidentally shot the victim], considered with evidence of petitioner’s history of domestic abuse and recent psychological reports reflecting that his character remains unchanged and that he is unable to gain insight into his antisocial behavior despite years of therapy and rehabilitative ‘programming’ all provide some evidence in support of the Governor’s conclusion that petitioner remains dangerous and is unsuitable for parole.” (Shaputis, supra, at p. 1260.)
In a footnote, the Court clarified that whether a petitioner’s lack of insight provides some evidence of current dangerousness necessarily depends on the individual circumstances of each case:
We note that expressions of insight and remorse will vary from prisoner to prisoner and that 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 this case, however, the Governor’s reliance on petitioner’s lack of insight is amply supported by the record – both in petitioner’s own statements at his parole hearing characterizing the commitment offense as an accident and minimizing his responsibility for the years of violence he inflicted on his family, and in recent psychological evaluations noting petitioner’s reduced ability to achieve self-awareness.
(Shaputis, supra, 44 Cal.4th at p. 1260, fn. 18.)
Subsequent decisions applying Shaputis have held that “lack of insight” may not be invoked as a “‘talisman’ for denying parole.” (Rodriguez, supra, 193 Cal.App.4th at p. 97.) Rather, “‘“lack of insight” is probative of unsuitability only to the extent it is both (1) demonstrably shown by the record and (2) rationally indicative of the inmate’s current dangerousness.’ [Citation.]” (In re Powell (2010) 188 Cal.App.4th 1530, 1542; Rodriguez, supra, 193 Cal.App.4th at p. 97 [“The question [is]... whether [petitioner’s] lack of understanding... is rationally indicative of current dangerousness”].)
b. Hairston’s lack of insight constitutes some evidence of current dangerousness
In this case, the Governor’s contention that Hairston lacks insight into his criminal behavior is supported by evidence in the record that is rationally indicative of current dangerousness. As in Shaputis, the Governor’s finding that Hairston lacks insight is predicated on two factors: (1) his continuing assertion that the shooting was accidental, and (2) statements in his most recent medical evaluation.
i. Hairston’s contention that the shooting was accidental
Although Hairston informed the Board that the shooting was accidental, there is significant evidence in the record that contradicts this assertion. First, as noted by the Governor, a trial witness testified that, immediately before the shot was fired, Hairston raised his arm toward the victim. Moreover, the path of the bullet indicated that the victim was in a defensive position at the time she was shot, with her hand covering her face. In a prior decision affirming Hairston’s conviction, this court concluded that such facts constituted “strong evidence of defendant’s intentional shooting of the victim.”
Hairston’s 2007 medical evaluation provides additional evidence that the shooting was not accidental. While discussing the commitment offense with his evaluator, Hairston said “‘[I] argued with the victim for about ten minutes... and then I shot her, ” immediately adding, “‘I still can’t figure out why I did it. She was no threat to me.’” Hairston’s assertions that he shot the victim, and could not figure out “why [he] did it, ” are not consistent with an accidental act. In light of “ample evidence” that Hairston shot the victim intentionally, his continuing assertion that the firearm discharged accidentally “indicates that [Petitioner] lacks insight into the reasons he committed the murder.” (In re Rozzo (2009) 172 Cal.App.4th 40, 61; see also In re Russo (2011) 194 Cal.App.4th 144 [“[i]n its role in protecting the public, the Board was required to look beyond petitioner’s deterministic explanation of his responsibility and his limited acceptance of legal accountability”].)
In addition to the evidence discussed here, the Governor’s letter cites additional inconsistencies in Hairston’s version of the commitment offense. For example, the Governor states that, during a 1993 evaluation, Hairston alleged for the first time that the gun discharged because the victim hit it with her hand and that his friend had modified the gun to have a hair trigger. These allegations do not appear in Hairston’s trial testimony, the probation report or his most recent medical evaluation.
We recognize that the Board and the Governor are “precluded from conditioning a petitioner’s parole on an admission of guilt.” (In re Palermo (2009) 171 Cal.App.4th 1096, 1110 [disapproved of on other grounds in Prather, supra, 50 Cal.4th at p. 252]; Pen. Code, § 5011, subd. (b); Cal. Code Regs., tit. 15, § 2236.) Therefore, if the “defendant’s version of the [crime]... [does] not strain credulity, ” the Governor may not deny parole solely on the basis of a petitioner’s refusal to admit guilt. (Palermo, supra, 171 Cal.App.4th at p. 1112; see also In re McDonald (2010) 189 Cal.App.4th 1008.) In this case, however, there is significant evidence contradicting “the inmate’s explanation of events surrounding the offense, ” thereby indicating “the inmate does not understand the true nature of his or her conduct to a degree sufficient... to warrant the inmate’s release to the public.” (Russo, supra, 194 Cal.App.4th at p. 152.) Moreover, as explained in more detail below, the evaluator’s conclusions in the 2007 psychological evaluation provide independent evidence that the Petitioner’s lack of insight renders him currently dangerous.
ii. The 2007 psychological evaluation contains evidence that Hairston lacks insight
Hairston’s 2007 psychological evaluation contains numerous statements that support the Governor’s determination that Petitioner lacks insight into the causative factors of his crime. Although Hairston has repeatedly told the Board his conduct was wrong and that he feels remorse, the psychological evaluator concluded that the Petitioner did not “fully accept[] responsibility” for his commitment offense “either because he doesn’t believe he was at fault and/or because he has limited capacity to experience emotion.” The evaluator noted that Hairston had expressed similar feelings about his past criminal conduct, “view[ing] himself as the victim in many of his arrests, and as someone who was ‘in the wrong place at the wrong time.’”
The evaluation also stated that Hairston’s “inability to more deeply feel his crime or come to terms with the underlying causes” was caused by a “deficit in his ability to experience a full range of emotions.” Finally, the evaluation concluded that Hairston had “shown very little interest” in addressing his lack of “insight about himself or his behavior” and that he lacked both “empathy and insight.”
As in Shaputis, the evaluator’s conclusions provide evidence that, despite years of rehabilitative programming, Hairston continues to demonstrate a deficiency in understanding what caused his criminal behavior, which, when considered with the commitment offense and his failure to take responsibility for the crime, have a rational tendency to show that the inmate currently poses a danger to society.
Based on his prison record, his advanced age, his detailed parole plans and various other factors, it might be reasonable to conclude, as did the trial court, that Hairston is unlikely to relapse into violent conduct and is thus suitable for parole. However, the Supreme Court has made clear that the courts have no legal authority to reweigh the evidence or make an independent assessment of a prisoner’s suitability for parole:
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.
(Shaputis, supra, 44 Cal.4th at pp. 1260-1261.)
The trial court concluded that the psychological evaluator’s comments about Hairston’s lack of remorse and insight were largely irrelevant because the evaluator still found that Petitioner “fell within the low risk range for future violence under the standard risk assessment tests.” However, the case law makes clear that while a “psychological evaluation of an inmate’s risk of future violence... ‘bears on the prisoner’s suitability for release’ [citation], ... [s]uch assessment does not necessarily dictate the Board’s parole decision.” (Lazor, supra, 172 Cal.App.4th at p. 1202.) The trial court discounted the evaluator’s findings for various other reasons, including the fact that the report accidentally referred to Hairston as “Mr. Daniels” on three occasions. However, under the applicable standard of review, the trial court was not authorized to reweigh – or resolve any conflicts in – the evidence. Those were issues for the Governor to decide. (See Rosenkrantz, supra, 29 Cal.4th at p. 677 [“[r]esolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the Governor”].)
In the present case, the Governor’s decision reflects that he “accorded petitioner individualized consideration with regard to all relevant statutory factors.” (Shaputis, supra, 44 Cal.4th at p. 1261.) The Governor did not ignore the positive aspects of Hairston’s case; his decision specifically references his positive institutional programming in prison, his stable relationships with family and his realistic parole plans. However, the Governor further concluded that such factors were outweighed by the gravity of the offense and petitioner’s lack of insight and failure to accept responsibility, which constituted some evidence of current dangerousness.
DISPOSITION
The trial court’s order granting habeas relief and directing Hairston’s release on parole is reversed.
We concur: PERLUSS, P. J., JACKSON, J.
Factors tending to show that an inmate is suitable for parole include: (1) the absence of a juvenile record; (2) “reasonably stable relationships with others”; (3) signs of remorse; (4) a crime committed “as the result of significant stress in [the prisoner’s] life”; (5) battered woman syndrome; (6) the lack of “any significant history of violent crime”; (7) “[t]he prisoner’s present age reduces the probability of recidivism”; (8) “[t]he prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release”; and (9) the inmate’s “[i]nstitutional activities indicate an enhanced ability to function within the law upon release.” (Cal. Code Regs., tit. 15, § 2281, subd. (d).)