Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BH006626 Peter Paul Espinoza, Judge.
Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Julie L. Garland, Senior Assistant Attorney General, Julie A. Malone and Jennifer L. Heinisch, Deputy Attorneys General, for Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Respondent.
WOODS, Acting P. J.
INTRODUCTION
The People appeal from the trial court’s grant of James Hall’s petition for writ of habeas corpus after the Governor overturned the Board of Parole Hearing’s grant of parole. The trial court found the Governor’s decision to reverse the Board’s finding of parole suitability was not supported by some evidence in the record of Hall’s current risk of danger to society and ordered Hall’s release in accordance with the Board’s determination. We reverse.
FACTUAL AND PROCEDURAL SUMMARY
On February 8, 1988, James Hall shot and killed Wilson Woods with a 12-gauge shotgun in a gang retaliation shooting. Hall was 19 and a member of the Raymond Avenue Crips. According to Hall, Woods was a member of a Blood gang known as the Denver Lanes. He and Woods had grown up together and attended school together. Hall said he had been hanging out with a group when rival gang members shot at him so he retrieved a shotgun from a fellow Crip and “went to retaliate, ” killing Woods about 30 or 45 minutes later. “I noticed the same jacket or a jacket that was similar to the one that I had saw [sic] that the guy had [sic] shot at me was wearing. And that’s who I shot at.” A jury convicted Hall of second degree murder and found true the allegation Hall had personally used a firearm in committing the offense. The trial court sentenced Hall to state prison for a term of 16 years to life.
Hall began serving his life term on May 9, 1989, and his minimum parole eligibility date was January 24, 1999.
In March 2009, the Board conducted a (seventh) subsequent parole suitability hearing for Hall.
The Board reviewed Hall’s criminal history. In 1982, as a juvenile, Hall was arrested for armed robbery but the offense was reduced to a misdemeanor. As an adult, he was convicted of a 1987 assault with a deadly weapon on an officer and granted probation. Hall said he was with a group of friends at the park and when officers arrived, everyone started running. Someone threw a bottle at a deputy and he was arrested with 16 others. He paid a $180 fine. Later that year, he had two more convictions for carrying a concealed weapon and was also arrested for gambling in public.
Next, the Board addressed Hall’s commitment offense. Hall again acknowledged retrieving a shotgun and shooting and killing Wilson Woods in retaliation for Woods’s gang shooting at Hall earlier that night. Asked how he felt about the crime, Hall responded, “It still hurts after 21 years.” He said he started getting involved with the Raymond Avenue Crips around the age of 13 and “stay[ed] in gang activity” in prison for “a little while” but debriefed after deciding it was “a bad life.” He said his parents set a good example, had good jobs, owned their own home and tried to stay on top of him, but he kept a lot hidden from them. Around the same time, he started drinking and smoking marijuana “a lot” and was “partying as much as [he] could.”
Asked about the appeal of gang involvement to him, Hall said it was the “attention” from other people at school, “mainly the girls.” Hall had two sisters and one younger brother who were all doing well. (Hall had an older brother who was shot and killed when Hall was about two.) Asked what his biggest challenge in the future would be, Hall said “making a living” and “becoming independent.”
The Board then noted that at Hall’s last parole hearing, the Board had denied parole for one year, recommending Hall remain free of discipline, participate in self help and earn positive chronos.
Examining Hall’s disciplinary record, the Board identified a total of four “rule violations” or “115s” for failure to participate in a vocational assignment and failing to be present for count a couple of times. His most recent violation was in 1993 for possessing contraband (a tattooing device he said belonged to someone else). Hall also had a total of 13 “custodial chronos, CDC 128-As, ” with the most recent one for playing cards in early 1996. In 1989, he had made a “verbal threat to staff, ” plus he had several failures to report for work and an instance of inappropriate behavior during work hours.
Hall had “quite a few” certificates documenting his involvement in Narcotics Anonymous and Alcoholics Anonymous since 1994, and he had 47 credits toward completion of an AA degree at Coastline Community College, with certificates of completion in general business, independent studies, life management, insurance and consumer credit, money management, sex abuse and compulsive sexual behavior, family and other relationships, educational and vocational goals, child development and parenting skills, human needs and social relationships, you and your parents, family matters and several other self-help topics; he had a number of “laudatory chronos” from a correctional officer and a few teachers, and one of the commissioners noted there were “another dozen of those chronos” he did not read into the record. Hall had various vocational certificates of completion including office services and related technology, vocational computers, dry cleaning and optical program (he had learned how to make glasses to doctor specifications and to dispense glasses and contact lenses and worked for six months in the program). Prior to his incarceration, Hall had also completed training in electronics assembly through a UAW class and had been working for Hughes Aircraft (soldering circuit boards) for about nine or ten months before his arrest for the commitment offense.
Asked about the Twelve Steps, he said the most important step to him was Step Twelve, using all of the preceding steps and applying them to his life, but he also cited Step Eight (making amends) noting all the harm he had caused his own family as well as his victim’s family and himself. He said he had apologized to all of his family members and was amazed that they had forgiven him for what he had done. He had written a letter to Woods’s family and sent it to the District Attorney’s office.
Hall emphasized that he knew he had to continue going to NA or AA and applying all he had learned about making better decisions. He had a relapse prevention plan and identified two programs he had located near his sister’s neighborhood in Riverside where he hoped to live if released on parole.
Hall had an “actual classification score of zero points, ” but had a mandatory minimum of 19 to keep him in a Level Two facility, and had “Medium-A custody, the lowest custody you can have as a life term prisoner without a parole date.”
The Board noted Hall had initially claimed he had signed a confession to his crime under duress, but in about 1990, he “c[ame] to terms with reality, ” after having time to himself, “reflecting on things, ” and gaining “a little maturity.”
Hall had plans to live with his sister Brenda Moorer on his release and had an employment offer at Jessie’s Auto Repair as a custodian. According to a corrections counseling report, “Mr. Hall’s family[’s] and friends[’] offers should provide him with a smooth transition into society.”
Turning to the latest psychological evaluation (February 2008), the Board noted Hall was evaluated as functioning well in his environment (with a score of 85 on the Global Assessment of Functioning). According to the latest report prepared by Carol Fetterman, Ph.D., “[Hall’s] potential for violence has been assessed as average in the first two evaluations and as low since then.” Dr. Fetterman noted Hall remained assigned to Vocational Office Services with “Exceptional” work reports. In discussing the commitment offense, she noted Hall expressed “genuine sadness and remorse” at appropriate times during the interview. When asked about his main accomplishment, Hall stated, “The way I have changed. I am no longer selfish. I am totally honest and not out to manipulate anyone, my priorities are right. I have grown to want to contribute, give back. I want to be helping, volunteering in the community.”
According to the psychological evaluation, previous evaluators had noted a “diagnosis of Antisocial Personality Disorder which is warranted when an individual clearly engages in antisocial behaviors with the onset of such behavior occurring before the age of 15 as was true in the case of this inmate.” However, Hall’s “Antisocial Personality Disorder had shown much improvement since he has had no disciplinary infractions since 1993 and his behavior in a controlled environment has been increasingly prosocial.” Similarly, Hall had met the criteria for both alcohol and cannabis dependence before his incarceration as he had reported drinking and smoking three or four marijuana joints every day from the age of 16. His drinking had increased over time and he was under the influence of both substances at the time of his commitment offense. He said the last time he used alcohol was in 1996. “There was no documented evidence or indication he was suffering from a mood disturbance, thought disorder, or substance dependence at the time of this evaluation.”
According to the evaluator, the Board had asked her to address Hall’s “violence potential in the free community.” She wrote: “The current research literature indicates that an empirically based approach is the most reliable and valid method for assessing risk of future violence. In the present evaluation, two separate assessment guides were used to help estimate this inmate’s risk for future violence in the community: The HARE Psychopathy Check List—Revised 2nd Edition (PCL-R) and the History-Clinical-Risk-20 (HCR-20). The data for scoring these instruments were obtained from information derived in both the inmate interview and the files reviewed. These measures are widely used and are supported by years of research in the risk assessment field. They have been cross-validated with various forensic populations, including United States males in correctional settings; however, the following results need to be regarded with some level of caution since some individuals may possess idiographic differences that could limit the applicability of the instruments. The evaluator has taken these factors into consideration in determining how much weight to allot each of the measures and in formulating an overall estimate of risk for future violence in the community. Estimates of risk for violence will be presented categorically: low, moderate, or high.” (Original italics.)
“The Hare Psychopathy Checklist-Revised (PCL-R) is a measure of an individual’s level of psychopathy. This 20-item instrument is designed to measure mostly static (unchanging) risk factors for future violence. The inmate’s score on the PCL-R, fell in the moderate range and placed him in the 43.9% percentile rank of the normative sample. It should be noted that items on this instrument must be scored within the lifetime history of the individual rather than more recent behavior alone.
“This inmate’s scores were affected by his poor psychological controls as demonstrated by his criminal activity and his gang membership, impulsivity and need for stimulation and proneness to boredom (for which, according to the inmate accounts for his gang involvement). He also was on probation at the time of the commitment offense.
“Positive factors included lack of early behavioral problems, having only one marital relationship after 30, and lack of a juvenile record.
“HCR-20: The HCR-20 is a 20 item risk assessment guide that attempts to measure risk for future violence by dividing risk into three categories: historical, clinical and future risk management. The inmate’s overall score places him in the moderate range for future violence.
“In the Historical domain of the HCR-20, the available information indicated that the inmate was 19 years at the time of the instant offense; this was an extremely violent incident. Additionally, the records indicated that the inmate had a significant substance abuse problem, early maladjustment and a serious personality disorder. He also had an unsatisfactory performance while on probation for a previous offense. All of these factors correlate with future risk of violent recidivism.
“It should also be noted that this inmate displayed some protective factors within this domain which is that he has not suffered from a mental illness at any time in his life.
“In the Clinical or more current and dynamic portion of the HCR-20, this inmate exhibited many protective factors. He has developed insight into his commitment offense and demonstrates genuine remorse, his attitudes are much more prosocial than they were when he came to prison as evidenced by his willingness to debrief from gang involvement, he has no symptoms of a major mental illness and is generally responsive to treatment as evidence by his commitment to NA Meetings.
“In the ‘management of future risk’ domain the inmate’s scores were affected by a low probability of destabilizing influences and stress upon release.”
“The inmate does have a feasible, realistic parole plan, with marketable skills and personal support as evidenced by letters to that effect in his file.
“Additionally, he has addressed the issue of continued NA and AA involvement and has a list of meeting places in the area to which he will parole. However, he will have to adjust to a world that has become much faster and more technological since his incarceration. He will no longer operate within the structure of a controlled environment necessitating much more autonomy and coping skills. It is also important that he make certain his place of residence contains no weapons.
“On balance, it appeared that this inmate has considerable emotional and financial support to assist him in re-entry to the community. This is a protective factor against violent re-offense.”
“Overall, this inmate poses a moderate risk to recidivate in a violent manner. This assessment takes into account his cultural background, personal, social, and criminal history, institutional programming, community/social support, release plans, and current clinical presentation.”
Responding to the Board’s request that the evaluator address the extent to which Hall had explored the commitment offense and come to terms with its underlying causes, the evaluator stated, “The inmate has insight as to the underlying causes of his criminal behavior and seems to be more aware than he was previously of the implications of gun ownership, substance abuse and association with gang members. He understands that his antisocial identification with gangs, resulting from his need to ‘fit in, ’ his immaturity, need for stimulation, and impulsivity resulted in his making poor decisions, ultimately resulting in the commitment crime. It would appear he has used his time in prison effectively through self-help courses, workshops, NA and AA and self-reflection to change his antisocial attitudes.
“It is unlikely that a requirement for further exploration of the commitment offense will produce more significant behavioral changes of a positive or prosocial nature in the inmate.”
Finally, in response to a request that she explore the need for further therapy programs while incarcerated, the evaluator stated, “The inmate does not currently present as a candidate for any noteworthy change as a result of psychotherapeutic intervention from which he is currently precluded by virtue of his GP status. Ongoing education and involvement in self-help, self study (bibliotherapy), or introspective treatment groups (if available to life term inmates without mental health issues) is encouraged, but his group treatment should not be considered mandatory.”
In conclusion, Dr. Fetterman reported, “The inmate has remained disciplinary free since his last Board Hearing. He has partaken of many self-help and therapy activities with laudatory chronos. He also has an exemplary work record. [¶] Since the 2007 BPH the inmate has maintained his positive behavior, prosocial attitude, and in self-help involvement. He continues to appropriately abide by institutional expectations, while maintaining a respectful attitude. His parole plans have been stable. His efforts to meet the recommendations of the BPH have been well documented.”
After reading portions of the evaluator’s report into the record, a commissioner commented, “You can’t really change things that are historical, but that’s part of what the score is based on.” Regarding the evaluator’s reference to gang debriefing, the commissioner interjected, “Street gang members normally do not get involved in the debriefing process. Did you actually go through the debriefing process?” Hall responded that he did and when asked why, he said, “Actually, I didn’t know street gang members could debrief, and had I known that I would have did [sic] it a lot earlier. One of the Panels recommended that I debrief, ” and said he looked into it then, in 2005, and debriefed with Officer Clayton in ISU.
In reviewing the evaluation, the commissioner observed the assessment that Hall posed a “moderate” risk for violent reoffense was “confusing” given the “picture that was painted” of Hall, after reading substantial portions of the report into the record.
When it was the District Attorney’s turn to question Hall, he asked about the letter Hall said he had written to Woods’s family and asked him to explain the effect of street gangs on Los Angeles County and the State of California. Hall explained how he had apologized for the all the damage he had caused; he said he had thought at the time he was protecting his neighborhood by being in a gang but came to realize all gangs do is terrorize. He had a lot of regret and hoped for the opportunity to share what he had gone through in the hope of helping to stop others from making the mistakes he had made. The District Attorney urged Hall to continue with his education as the “silver key, ” and based on Hall’s performance, concurred with his two predecessors and supervisor in submitting the matter to the Board without opposition from the District Attorney’s office to Hall’s release on parole. After Hall’s further statement to the Board and his attorney’s closing statement, the Board issued its decision granting Hall’s parole.
In August 2009, Hall was advised that, after reviewing the Board’s decision, the Governor had invoked his authority to reverse the Board’s decision to grant parole (as he had also done in 2004).
In his statement of decision, the Governor noted Hall’s prior criminal history, substance abuse and disciplinary record while incarcerated. Citing Hall’s gang debriefing memo, the Governor cited Hall’s membership in the Raymond Avenue Crips gang from 1981 to 2005.
The Governor acknowledged the positive factors weighing in favor of Hall’s release, but based on Hall’s especially heinous commitment offense, concern Hall had not been entirely forthcoming about his gang activity over the years and his psychological evaluation indicating he posed a “moderate” risk to recidivate in a violent manner, reversed the Board’s decision.
Hall then filed a petition for writ of habeas corpus which the People opposed by return. The trial court granted Hall’s petition and ordered his immediate release. As the Board had observed, the court noted the psychological evaluation that Hall poses a moderate risk of future violence relied primarily on static, historical factors that did not constitute evidence of current dangerousness any more than the seriousness of his commitment offense did. As for the Governor’s claim Hall lacked insight with respect to gang issues, the trial court quoted from Hall’s response to the District Attorney about his views of gangs which he said “cause nothing but damage.... We were actually neighborhood terrorists.” Moreover, the Board noted that inmates typically do not debrief from street gangs, but Hall had done so, and the District Attorney did not oppose his grant of parole.
The People filed a petition for writ of supersedeas and we directed Hall’s release from incarceration stayed pending disposition of this appeal or further order of this court.
The People appeal.
DISCUSSION
The Law Governing Parole Determinations
The Board may deny parole if “‘the prisoner will pose an unreasonable risk of danger to society if released from prison.’” (In re McDonald (2010) 189 Cal.App.4th 1008, 1019.) The Board must consider the entire record before it, as well as the factors indicating suitability or unsuitability set forth in the regulations. (Cal. Code Regs., tit.15, § 2402, subds. (c), (d).) The most fundamental consideration, however, is public safety, requiring assessment of current dangerousness. (In re Lawrence (2008) 44 Cal.4th 1181, 1205 (Lawrence).)
“[T]he Board (and the Governor) [are authorized] to identify and weigh only the factors relevant to predicting ‘whether the inmate will be able to live in society without committing additional antisocial acts.’” (Lawrence, supra, 44 Cal.4th. at pp. 1205-1206, quoting In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz).) “[I]n directing the Board to consider the statutory factors relevant to suitability, many of which relate to postconviction conduct and rehabilitation, the Legislature explicitly recognized that the inmate’s threat to public safety could be minimized over time by changes in attitude, acceptance of responsibility, and a commitment to living within the strictures of the law.” (Lawrence, supra, 44 Cal.4th at p. 1219.)
Consequently, the “statutory and regulatory mandate to normally grant parole to life prisoners who have committed murder means that, particularly after these prisoners have served their suggested base terms, the underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when there is strong evidence of rehabilitation and no other evidence of current dangerousness.” (Lawrence, supra, 44 Cal.4th at p. 1211.) The Board (and the Governor) may, of course, rely on the aggravated circumstances of the commitment offense (among other factors) as a reason for finding an inmate unsuitable for parole; however, “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.” (Id. at p. 1214.)
“‘The Governor may only affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider.’ (Cal. Const., art. V, § 8, subd. (b).) ‘[T]he Governor undertakes an independent, de novo review of the inmate’s suitability for parole [citation].’ (Lawrence, supra, 44 Cal.4th at p. 1204.) The Governor ‘must consider all relevant statutory factors, including those that relate to postconviction conduct and rehabilitation. [Citation.]’ (Id. at p. 1219.) ‘Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the Governor. 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.’ (Rosenkrantz, supra, 29 Cal.4th at p. 677.)” (McDonald, supra, 189 Cal.App.4th at p. 1021.)
The Standard of Review
“[W]hen a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the decision of the Board or Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings.” (Lawrence, supra, 44 Cal.4th at p. 1212.) The inquiry for the reviewing court is “whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor.” (Id. at p. 1221.) “This standard is unquestionably deferential, but certainly is not toothless, and ‘due consideration’ of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision-the determination of current dangerousness.” (Id. at p. 1210.)
There Is Some Evidence of Current Dangerousness in This Record.
Examining each of the factors the Governor relied on for his determination in turn, we conclude that this record contains some evidence of current dangerousness.
A. The Circumstances of the Crime The Governor determined first that the murder was particularly heinous, but that evidence alone is not some evidence of current dangerousness. (Lawrence, supra, 44 Cal.4th at p. 1214.) There must be a rational nexus for concluding that this 21-year-old crime continues to be predictive. (Id. at pp. 1210, 1221.)
B. Lack of Insight Regarding Gang Issues
According to the Governor, Hall has not gained sufficient insight regarding his gang activities as evidenced by his failure to debrief before 2005. This assessment is contradicted by the record, including the psychological evaluation of Hall as well as the debriefing documentation. Moreover, the Board itself was surprised that Hall had taken this additional step with respect to street gang involvement as debriefing typically applied to prison gang involvement. The psychologist specifically cited evidence of Hall’s insight in this regard (and the District Attorney, in submitting without opposition, highlighted Hall’s insight into gang violence as well).
C. The 2008 Psychological Report
According to Dr. Fetterman’s 2008 psychological report, Hall’s file included prior psychological reports prepared in 1993, 1996, 1997, 2000, and 2001, and Hall’s “potential for violence ha[d] been assessed as average in the first two evaluations and as low since then.” However, after interviewing Hall herself, reviewing his file and prior psychological reports, and assessing Hall’s risk of future violence through the use of two different assessment guides (the PCL-R and HCR-20), Dr. Fetterman determined that, as of March 2008, Hall posed “a moderate risk to recidivate in a violent manner.” (Original emphasis.)
According to Dr. Fetterman’s report, “the current research literature indicates that an empirically based approach is the most reliable and valid method for assessing risk of future violence, ” and the two instruments she used were “widely used” and “supported by years of research in the risk assessment field, ” as well as “cross-validated with various forensic populations, including United States males in correctional settings.” She explained that “some individuals may possess idiographic differences that could limit the applicability of the instruments, ” but said she had “taken [such] factors into consideration in determining how much weight to allot each of the measures and in formulating an overall estimate of risk for future violence in the community.”
She noted that the PCL-R test “measures mostly static (unchanging) risk factors for future violence, ” but the HCR-20 “measures risk for future violence by dividing risk into three categories, ” so in addition to historical factors, the HCR-20 assessment also includes “clinical” and “future risk management” categories. Even as to the “[h]istorical domain of the HCR-20, ” Dr. Fetterman noted Hall’s age at the time of the offense (19), the fact “this was an extremely violent incident, ” Hall had a significant substance abuse problem, early maladjustment and a serious personality disorder, and his performance while on probation for a previous offense was unsatisfactory. “All of these factors correlate with future risk of violent recidivism.” (Italics added.) Not only did Hall score in the “moderate” range on the PCL-R but he also scored in the “moderate” range on the HCR-20. Moreover, after interviewing Hall, reviewing his file and administering these assessments, Dr. Fetterman concluded that, “[o]verall, ” he posed a “moderate risk to recidivate in a violent manner, ” “tak[ing] into account [Hall’s] cultural background, personal, social, and criminal history, institutional programming, community/social support, release plans, and current clinical presentation.” (Original emphasis.)
Our role is not to reweigh the evidence in the record to determine parole suitability but rather to determine whether some evidence in the record supports the Governor’s decision that Hall poses a current threat to public safety. (In re Criscione (2009) 180 Cal.App.4th 1446, 1458; Lawrence, supra, 44 Cal.4th at p. 1212.) Notwithstanding the numerous positive factors weighing in favor of Hall’s parole suitability, based on Hall’s most recent psychological evaluation, some evidence in the record supports the Governor’s decision Hall still posed an unreasonable risk of danger if released. (See Lawrence, supra, 44 Cal.4th at p. 1226 [“[o]ur deferential standard of review requires us to credit the Governor’s findings if they are supported by a modicum of evidence”]; In re Hare (2010) 189 Cal.App.4th 1278, 1294-1295.) Consequently, the trial court erred in granting the petition for writ of habeas corpus and vacating the Governor’s reversal of the Board’s grant of parole.
DISPOSITION
The order granting the petition for writ of habeas corpus is reversed and the matter is remanded to the trial court to vacate the order and enter a new order denying the petition.
We concur: ZELON, J., JACKSON, J.