Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 58135
McAdams, J.
On April 28, 1974, habeas petitioner Michael Harris was arrested for shooting one person to death and wounding another after an argument in a bowling alley and, two weeks later, shooting an erstwhile acquaintance to death after another confrontation. On September 30, 1974, Harris pleaded guilty to one count of first degree murder and admitted use of a firearm in connection with the first homicide. He pleaded guilty to second degree murder and admitted use of a firearm in connection with the second. Harris is serving an indeterminate life term with the possibility of parole. He has been incarcerated for 35 years.
On May 14, 2004, the Board of Parole Hearings (hereafter Board) found that Harris was unsuitable for parole because he would pose an unreasonable risk of danger to society or a threat to public safety if released from prison, and denied him parole for two years.
Harris filed a petition for writ of habeas corpus in the Santa Clara County Superior Court challenging the Board’s May 14, 2004 denial of parole. On August 5, 2008, the superior court granted the habeas corpus petition and ordered the Board to conduct a new hearing in accordance with due process as outlined in the order. We stayed the superior court’s order pending appeal. On appeal, the Attorney General contends that the superior court erred because (1) the superior court’s order directing the Board to develop and implement a comprehensive training program reflects an abuse of discretion; (2) the Board’s decision denying petitioner parole is supported by some evidence, and (3) “because the Board relied on more than just the commitment offenses to deny Harris parole, the Board’s decision can be upheld whether or not the Board specifically articulated a nexus between the factors it relied on and its conclusion that Harris remained a threat risk.”
For the reasons stated in In re Lewis (2009) 172 Cal.App.4th 13, we agree with the Attorney General’s contention that the trial court’s order directing the Board to develop and implement a comprehensive training program constitutes an abuse of discretion. However, we also conclude that the Board should conduct a new hearing in accordance with our Supreme Court’s recent decisions in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis). We will therefore remand the matter to the superior court with directions to modify its order granting Harris’s habeas corpus petition, as follows: the order shall be modified to delete its incorporation by reference of the order in In re Donald Ray Lewis, and to direct the Board to conduct a new hearing in light of Lawrence and Shaputis, including consideration of all relevant statutory factors as required by California Code of Regulations, title 15, section 2281, subdivision (b). As modified, we will affirm the order granting petitioner’s petition for habeas corpus.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Social History
Harris was born in Fresno, California in 1953 and was 51 years old at the time of the May 14, 2004 Board hearing. He is the ninth of 10 children born to his parents, who never separated. He graduated from Burbank High School in 1971 and received auto mechanic training.
Both parents are now deceased.
Harris has two children with whom he has no contact. In 1995, Harris married Daaiyah Salahuddin, to whom he remains married.
Harris began using alcohol and marijuana at the age of 14. At some point, he became an alcoholic, and at age 17, he became addicted to heroin. He was drinking brandy and smoking marijuana at the time of both shootings.
B. Criminal History
Harris’s juvenile record consists of a burglary in September 1967, for which he was made a ward and placed on probation; a petty theft in October 1967 for which he went home and was continued on probation; a finding that he was “beyond control” in December 1967; another sustained burglary allegation in 1968, when he was 16, for which he was released to his sister’s home; another “beyond control” finding in 1969; petty theft and disturbing the peace charges which were “settled at intake” in 1970; sustained petty theft and burglary charges in December 1970 for which Harris was sent to a ranch in January 1971; another “beyond control” finding and a battery charge in 1971 for which he was again placed on probation in his sister’s home. In July 1971 Harris ran away from his sister’s home. That case was dismissed, ending his juvenile record.
Harris’s adult criminal record commenced in October 1971 with burglary and conspiracy charges for which he received two years probation and a six month county jail sentence with all but 42 days suspended. In March 1972, Harris was arrested for burglary and conspiracy, for which no disposition is shown. He suffered felony convictions in August 1972 for robbery, a credit card offense, forgery and a Health and Safety Code violation and was sentenced to prison, from which he was discharged in January 1973. He was sent to CYA for possession of a barbiturate acid derivative and robbery. He was paroled from CYA on March 7, 1974.
C. The Commitment Offenses
The Board incorporated by reference the statement of facts from the current Board report dated April 2004, which drew on information in the probation officer’s report dated October 1974 and the Board’s Report of Investigation dated November 1983. Harris made no objection.
On April 14, 1974, San Jose police officers were flagged down by 19-year-old Alexandro Escobar, who reported that a shooting had just occurred at the Plaza Lanes Bowling Alley. Police found 18-year-old James Murray on the ground, bleeding from an apparent gunshot wound in the chest. He was removed to a hospital where he later died of gunshot wounds to the back, buttocks, left leg and arm. A second victim, 20-year-old Norman Hill, had been shot in the heel. Escobar and Hill told the police that they had been celebrating Murray’s birthday and drove to a party at a friend’s house located across the street from the bowling alley. They had gotten out of their car and were talking when the shooting occurred. They did not know who shot them or the direction from which the shots were fired. Subsequent investigation discovered bullet holes in the garage of one house and in the bedroom wall of another house, about five or six feet above the bed of two small children who occupied the room.
On April 28, 1974, San Jose police officers responded to a telephone call from a person who reported that a shooting had just occurred at his or her residence. When the police arrived, 16-year-old Silas Knowles was sitting upright in the driver’s seat of his car, head tilted backwards, with a wound in his forehead. Knowles was pronounced dead at the scene. Witnesses who heard the shot reported seeing the suspect, later identified as Harris, speed away from the scene in a gold 1963 Cadillac with two passengers, one male and one female. Other witnesses reported seeing another Cadillac, a greenish-gold in color, 1959 or 1963 model, also leave the area. Police stopped the greenish-gold Cadillac and questioned the two occupants. The male occupant eventually identified Harris as the shooter and led police to Harris’s car. The police interviewed Harris’s 15-year-old half-sister, who reported that Harris and Knowles argued at her friend’s house, just before the shooting occurred. After the argument, both Knowles and Harris drove away in opposite directions. A few moments later, she heard a shot and rode her bicycle to her house, where she found Knowles in his car, and saw the gold Cadillac drive away.
Maurice West told police that he and Harris were at the Safari Room, a bar inside the Plaza Lanes bowling alley, when Harris had an argument with another patron. He and Harris left the bar and went to Harris’s house, where Harris retrieved a rifle. They then went to West’s house, where West retrieved a shotgun. West and Harris returned to the vicinity of the bowling alley, where some people were standing in front of a car parked across the street. West fired one shotgun round into the air and Harris shot into the crowd. They returned to West’s residence and hid the rifle under West’s mattress. West reported that prior to the shooting, Harris told him that he wanted to get even with a man who had pushed him earlier in the evening at the Safari Room. That person had entered a car parked across the street. According to West, the victim somewhat resembled the person with whom Harris had had the altercation earlier.
At the 2004 parole hearing, the Board questioned Harris extensively about the commitment offenses. Harris confirmed a commissioner’s understanding that the reason for the first shooting was an argument between one of his friends and another man. They left and went to someone’s home to get a gun. When they returned, he fired into a crowd of people from a car; he did not know if the person with whom his friend had argued was still there, although “a lot of those guys were there.” He did not believe they intended to hurt anyone. “It was more a thing of being emotional and excited and just panicked.” He did not know that anyone had been hit when they drove away. Looking back, he could see that the shooting should never have occurred, but given his age and the way he was thinking at the time, “something like that was bound to happen.”
With respect to the second shooting, Harris testified that he and Knowles were at his sister’s friend’s house, and Knowles “really wanted me to stop what I was doing and take him somewhere.” Knowles was “engaged in getting under the influence” and he was “a pretty big guy.” At the time, Harris did not know how young he was, or that his parents had moved from Los Angeles to San Jose “to get him away from the gangs.” After the argument, Harris left and went around the corner to his mother’s house. When Knowles came around with another guy, Harris became apprehensive “because I didn’t... know what his next move was going to be. So I kind of like got a little excited and I pulled out the rifle, but I just aimed it... at the windshield and the next thing I know, the gun went off.... [¶]... [¶] I mean... I got a little excited, you know, and I shot him.”
Harris admitted that, earlier in his incarceration, he “didn’t want to accept the responsibility for my participation.” He did not admit his involvement until he “really... took a real good look at... what’s been going on with life.” Harris apparently first admitted at a Board hearing in 1998 that he had used a rifle. He had been in prison and involved in Islam “several years” before he reached the point when he could admit to himself that he was responsible for both crimes. Asked “what kind of insight have you gained into what the impact of your actions must have been on the lives of, not yourself and not your family, but the other people that you affected with the crime,” Harris responded: “Actually, I believe that I’ve destroyed those families. And although the crime will never change, but it’s something that I’m going to have to carry for the rest of my life. But at the same time, although I know that I can’t bring them back and I regret having done what did, the best thing for me to do is to continue to strive to be a better person.”
After reviewing Harris’s prior criminal record and accomplishments in prison, the Board asked for more details about the commitment offenses. Asked if the investigation showed that Mr. Murray was not the person with whom he had argued in the bowling alley, Harris responded that he did not know that at the time, but he now knew that Mr. Murray was an innocent bystander. Asked for the full name of “the other man that was shot in the heel,” Harris erroneously answered “I think it was Escobar, if I’m not mistaken.” Asked who drove him and his confederate from the bowling alley to his mother’s house to get the rifle with which he shot Mr. Murray, Harris responded that it was Silas Knowles, the victim of the second commitment offense. Harris clarified that he used the same rifle in both shootings, that it did not have a scope, and that Maurice West gave it to his mother after the shooting. It was in the car just prior to his shooting of Mr. Knowles. He got the rifle after the argument in the bowling alley from Maurice West’s mother’s house. Over his attorney’s objection, he explained that “after the shooting at the bowling alley, the gun ended up back at Maurice West’s mother’s house.” Later, the gun ended up at Chris Woods’s house. On the day he shot Knowles, the gun was in the car because Woods had given him the rifle and he had put it there.
Harris learned from the report that bullets from the shooting ended up in the bedroom of a home where two children were sleeping. He did not know the names of the children or of the people who owned that house.
Harris testified that those were “the only two times in my whole life that I’ve ever, you know, had a gun.” Asked why he felt that he had to respond to arguments in those two situations by shooting people, Harris testified: “[W]hen I go back and look at my life, from the time that I had my first run-in with the law, I felt like, at the time, that since we have this thing we call free will, that I felt like I had a right to do whatever I wanted to do. But in my growth and development as a man,... even though we have free will, we don’t have the right to do what we want to do because we live in a society where there’s law and order, the rules and regulations that you must abide by. But when I was younger, that didn’t matter.... [¶]... [¶] I felt like, at that time,... I wanted to do what I wanted to do.”
D. Conduct While Incarcerated
Between Harris’s 13th subsequent hearing in April 2002, and his 14th subsequent hearing in April 2004, Harris continued to work in Maintenance and Repair, and received above average work ratings. He also: (1) received a forklift license; (2) received a certificate for Welding Equipment Services Engineering; (3) received certificates of achievement for completion of courses in General Maintenance and Industrial Maintenance; and (4) received certificates of achievement from the Emergency Management Institute for completion of courses in Emergency Program Management, Emergency Preparedness, Hazardous Materials, a Citizen’s Guide to Disaster Assistance, Building for Earthquakes of Tomorrow, and Radiological Emergency Management. Earlier in his incarceration, he had been a Microfilm Technician, and had studied Micrographics. While in CYA, he had learned shoe repair.
From 2002 to 2004, Harris also completed an eight-week course in Ethics and Values offered by the Parolee Recidivism Prevention Program. He continued his membership in AA and received a favorable “128(b)” citation for talking about his participation in AA. He received another favorable “128(b)” from his work supervisor citing him for being a Critical Worker and requesting his retention at DVI (Deuel Vocational Institution). He also received a “laudatory” from the Muslim Chaplain for his efforts. Other self-help programs he had completed in earlier years included group therapy, Creative Conflict Resolutions, the Life Management Program (in 1990) and the Vital Issues Project (in 1990). Since his conversion to Islam in 1979, Harris had been active in the Muslim Islamic community. He had also been through the “Cat X” and “Cat T” programs. In addition, he had learned a great deal from a psychologist who taught him about anger management.
Asked specifically about his involvement in “12-Step” programs over the course of his incarceration, Harris testified that he had been to two AA meetings in 1983 when he was at CMF, and had been “consistently” attending meetings since he arrived at DVI, for the past five or six years. He acknowledged that he did not know all of the 12 steps and, although he attended AA, it did nothing for him. He explained that when he converted to Islam, he became familiar with the Five Pillars of his faith. “What fulfills me is Islam and the teachings of Islam and being a good Muslim, you can’t indulge in any intoxicants whatsoever. Even a person who gets angry, that’s forbidden. So the years that I’ve put in and doing all the things that I have done was because of my conversion to Islam.”
Later in the hearing, he was asked to, and did, recite the Five Pillars of Islam.
Harris received no psychiatric treatment and no negative discipline between 2002 and 2004.
Over the course of his incarceration, Harris had received 32 disciplinary citations or “115s” and five “128s.” The last 128 was in 1999 for refusing a direct order. Harris’s 115s ran the full gamut from assaulting an inmate with a weapon on May 18, 1979, to throwing hot liquid on an officer, implying threats, spitting on an officer and disobeying orders. But, as one commissioner commented, “Everything is pretty much covered in all the conduct and then you stopped getting into trouble in May of ‘79... [¶]... [¶] Twenty-six years ago.” Asked “[w]hat made you just stop all at once from getting more 115s,” Harris credited his turn-around to a conversation he had with an associate warden and his conversion to Islam. “I finally made a decision that... I didn’t want to continue down the road that I was going. And it was time for me to start doing good things, positive things, and doing the right thing, so I took a stand.”
Harris explained that he objected to the way in which he saw a new officer conducting a body search of another inmate because he thought it was “wrong,” and asked the officer not to conduct the search of his person in that manner. Although he did allow himself to be searched, the officer gave him a 128, “but it was only general counseling, a verbal warning.” Harris did not recall the details of the other four 128s which were dated April 1993, September 1995, April 1997 and December 1999.
E. Psychological Evaluation
The Board noted that in 1976 Harris had been diagnosed with a severe Antisocial Personality Disorder with Inadequate Features and that there had been “lots of reports since that time.” In 2001, Dr. Eric Nelson had reported Harris’s “prognosis for maintaining his gains... and for the community living” appeared to be “fair to good.” Nelson estimated that Harris’s intelligence was in the average range and his “insight was fair to good for his situation.” Further, Harris’s Polysubstance Dependence disorder was in sustained remission and his Antisocial Personality disorder had improved over time. In the latest addendum, dated February 2004, staff psychologist Girtman had opined that Harris’s Antisocial Personality disorder “had improved to the point where his diagnosis now seems inappropriate.” Similarly, since Harris had remained alcohol and drug free for several decades, a diagnosis of polysubstance dependence “is difficult to justify at this time.” The Board quoted from Dr. Girtman’s report: “Inmate Harris freely admits that these murders were bound to happen, given his lifestyle and utter disregard for authority at that time. This disregard for authority and indifference to other people carried over into his first five years in prison, as evidenced by his miserable disciplinary history until 1979. He has since turned his attitude and behavior around to something that is... much more pro-social and is working hard to continue to improve himself. He also appears remorseful for these crimes and feels the only way to rectify these mistakes is to change himself into something better. He appears to be successful in this and probably presents a lower than average risk to the community if granted parole.” The only question to Harris about the psychological reports concerned a 1982 report in which the staff psychologist, Dr. Birkman, had written that during the interview, Harris had stated that he shot and killed the victim when he was reaching for a weapon in his car. The Board member wanted to know if that was true.
The Board also noted that Harris’s counselor, Jeffery, “says that you would probably pose a low degree of threat. That’s out of an institutional setting.” That was a reduction in risk from the 2001 report, in which his then counselor, Farrar, had rated Harris a moderate to low risk. Asked by the Board to explain why the public should not fear him, Harris responded: “I’ve changed. That guy that came into prison who was out of control is dead. He’s no longer alive.”
F. Parole Plans
If he is released on parole, Harris plans to live with his wife in Alameda County. He has some job offers, and would like to take the maintenance repair work that has been offered. Letters in support of Harris’s release were written by his three stepdaughters, his sister-in-law and his wife. Charles Turner of the Oakland Private Industries Council wrote that he believed Harris would not have any problem finding work through their program. Hijrah House, a non-profit organization that provides transitional housing and employment assistance supported Harris’s release. Twelve members of the Muslim community of Masjidul Waritheen also pledged their support upon Harris’s release. The Muslim Chaplain at CSP, Solano wrote to commend Harris on his rehabilitative success. Imam Faheem Shuaibe, who has known Harris for 12 years, wrote that “Mr. Harris is not the same young man who entered prison 30 years ago” and pledged to assist Harris “with every available resource towards securing employment.” The Muslim chaplains at CYA, San Quentin, Salinas Valley State Prison, and Pleasant Valley State Prison attested to Harris’s devotion to his religion and wrote in support of his release. The owners of Quality Halal Meat Market in Oakland, Delightful Foods bakery, and Happy Home Seafood, offered support for Harris’s release and the promise of jobs.
G. The Board Decision
The Board issued its parole decision after the May 14, 2004 hearing, finding that Harris was “not yet suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison.” The Board arrived at this conclusion based upon several parole suitability factors, including, first and foremost, the commitment offense “in which multiple victims were attacked and injured and two of them were killed,” defendant’s prior record, his unstable social history and prior criminality, and the recentness of some of his gains, specifically his involvement with AA and the fact that he only admitted his use of the rifle in 1998.
With regard to the commitment offense, the Board stated that “[t]he offense was carried out in a dispassionate manner, in that in both cases, it was not spontaneous. You had to... retrieve the weapons in order to carry out the crimes. The motive for the crime, and actually in both of these shootings, was very trivial in relation to the outcome of the crime, where people lost their lives. And the murder of the first victim, Mr. Murray, on April 15th, didn’t deter the prisoner from later committing the murder of Silas Knowles... just a couple of weeks later.”
With regard to Harris’s criminal history, the Board found that “the prisoner has an escalating pattern of criminal conduct and has failed previous grants of probation and parole and can’t be counted on to avoid criminality. He’s failed to profit from society’s previous attempts to correct his criminality.” The Board also found that Harris’s juvenile record was “quite extensive” with multiple wardships, probation, a stay at CYA, and Harris was on parole at the time he committed the commitment offense.
With regard to Harris’s unstable history and prior criminality, the Board noted that it included “all of the issues that I just spoke about,” and also running away from home on multiple occasions when he was on probation for juvenile offenses.
As for institutional behavior, the Board found that “[t]he inmate needs to continue beneficial self help. Specifically, we talked today about AA and I understand that as you noted, that in your faith, substance abuse is an issue that you address. And I just wanted to tell you that in previous instances, I’ve spoken with people who practice the Muslim faith. And they have asked their religious leaders to bring them in writing things that they can bring to the Board, stating that they are working on the issues of substance abuse.” The Board advised Harris that if he could “bring something to the Board” indicating that he was working on substance abuse issues through his religion instead of through AA, “that would be helpful for you in the future.” In the meantime, since Harris only began to participate in AA “a short time ago... You need to continue with some form of substance abuse self-help.”
The Board found that Harris had good parole plans that were realistic and good community support. It noted the District Attorney’s and Police Chief’s opposition to parole.
The Board concluded with the following “findings.” “We felt that some of your gains have been recent. And obviously, there was a point at which you decided to turn yourself around and really change your life. But it’s only been in the last few years that you’ve been involved with AA. It was only in the 1998 Board hearing that you admitted to the use of the rifle. And as recently as 1999, there was a refusing a direct order. And, you know, once again, regardless of what may have happened, what we have to consider is what is in the file.”
The Board did not mention the psychologist’s or the counselor’s reports and findings.
In a separate decision, the Board denied parole for two years. Specifically, the Board relied on details of the commitment offense, Harris’s criminal record, particularly his juvenile misconduct, and his failure to address his past substance abuse through AA, or to bring proof that he is addressing it through his faith. In comments made after the completion of the reading of the decision, one commissioner questioned Harris’s “sincerity and true remorse... when you can’t even come up with the name of one of the people you shot.” That commissioner was not comfortable with Harris’s “insight” into his “extremely egregious crime,” despite the “great strides” he had made.
H. Habeas Proceedings
On September 2, 2004, Harris, through counsel, filed a petition for a writ of habeas corpus challenging the Board’s denial of parole in the Santa Clara Superior Court. The Attorney General, nominally representing the Warden of the prison in which Harris is incarcerated, filed a return on April 5, 2005, and a supplemental return on October 20, 2005. (Pen. Code, § 1474.) Harris filed a traverse on May 4, 2005, and a supplemental denial on November 1, 2005.
On August 5, 2008, the superior court filed an order granting the habeas corpus petition. The court concluded that “[P]etitioner [Harris] did not receive the individualized consideration he is entitled to because all available evidence is that he has rehabilitated himself as much as anyone can be expected to, and more importantly, that the facts of his crime may no longer be any reliable indicator of future dangerousness. To find that it does, the Board must demonstrate a nexus between that offense and unsuitability.” The court ordered the Board to conduct a new hearing “comporting with due process as outlined above.”
II. DISCUSSION
A. Harris’s Lewis Claims
Relying on this court’s decision in In reLewis, supra, 172 Cal.App.4th 13, the Attorney General argues that “to the extent the superior court’s order in this case relies on and incorporates the August 30, 2007 order,” it constitutes an abuse of discretion and must be reversed. Harris appears to argue that Lewis is not controlling, because his case differs from Lewis in that his claim is based chiefly on a violation of due process rather than on a separation of powers or void-for-vagueness argument. He posits that the Board’s actions were extremely arbitrary and therefore violative of due process because the evidence developed in the trial court demonstrated that the Board “employ[ed] the ‘especially heinous, atrocious, or cruel’ factor 100% of the time, and that in all 43 cases in which the Board denied parole during the studied period based solely on the commitment offense, the panels placed the offenses in the ‘especially’ category.”
In Lewis, this court observed: “In its orders, the superior court takes the Board to task for finding 100 percent of the commitment offenses reviewed to be ‘especially’ heinous, atrocious or cruel, noting that the term ‘especially,’ by definition, cannot be used to describe 100 percent of anything. In the view of the superior court, this logical inconsistency demonstrates the Board’s failure to ‘operate within the limiting construction of the regulations,’ and its propensity to do ‘violence to the requirements of due process and individualized consideration which are paramount to the appropriate exercise of its broad discretion.’ ” (In reLewis, supra, 172 Cal.App.4th at pp. 28-29, fn. omitted.) In Lewis, we rejected both the factual and legal premises of the proposition (id. at pp. 29-30) and reversed the orders granting habeas relief. In our view, our Lewis decision is dispositive of Harris’s due process claim, and we reject it as well for reasons stated in Lewis.
B. Harris’s ISL/DSL Claim
Harris argues that we should rule on his claim that application of Penal Code section 3041, 3042 and title 15 of the California Code of Regulations to him violates due process and the prohibition against ex post facto laws because his offense occurred prior to the enactment of the Determinate Sentencing Law (DSL). We decline to do so. We agree with the Attorney General that “the superior court did not order the Board to use the regulations under the Indeterminate Sentencing Law [ISL] at Harris’s court-ordered hearing” and its order was not, in any event, “dependent upon any alleged distinction between parole suitability determinations under the ISL rather than under the [DSL].”
C. Lawrence and Shaputis
The Attorney General argues that the trial court’s order should be reversed “because the Board properly considered Harris’s parole suitability according to the regulations, and its decision denying parole was supported by some evidence.” Citing Lawrence, the Attorney General maintains that the Board conducted an individualized consideration of Harris’s suitability for parole, and “some evidence reflects that Harris remained a danger to society.” Specifically, “Harris shooting three people less than two weeks apart for no reason other than he wanted to, his lengthy criminal history, the recentness of his gains, and his failure to convince the Board that he had insight into the crimes and remorse for his victims are some evidence supporting the Board’s finding that Harris remained a danger to society if released.” Furthermore, the Attorney General argues that “because the Board relied on more than just the commitment offenses to deny Harris parole, the Board’s decision can be upheld whether or not the Board specifically articulated a nexus between the factors it relied on and its conclusion that Harris remained a threat risk.”
Harris argues that given his 26 years of sobriety and rehabilitative gains, the immutable factors of his commitment offense and prior criminal history do not provide some evidence that he currently poses a risk of danger to public safety, and that the Board’s decision fails to articulate or establish a nexus between those immutable factors and his current dangerousness. We begin our analysis of the parties’ contentions with an overview of the statutory criteria for parole suitability decisions, as set forth in the California Supreme Court’s decisions in Lawrence, supra, 44 Cal.4th 1181, Shaputis, supra, 44 Cal.4th 1241, and In re Rosenkrantz (2002) 29 Cal.4th 616 (Rosenkrantz).
1. The Statutory Criteria for Parole Suitability Decisions
“The applicable statutes provide that the Board is the administrative agency within the executive branch that generally is authorized to grant parole and set release dates. ([Pen. Code,] §§ 3040, 5075 et seq.) The Board’s parole decisions are governed by section 3041 and title 15, section 2281 of the California Code of Regulations (Regs., § 2281 et seq.)., Pursuant to statute, the Board ‘shall normally set a parole release date’ one year prior to the inmate’s minimum eligible parole release date, and shall set the date ‘in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to thepublic....’ (§ 3041, subd. (a), italics added.)” (Lawrence, supra, 44 Cal.4th at pp. 1201-1202, fn. omitted.) “ ‘Accordingly, parole applicants in this state have an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation.’ ” (Shaputis, supra, 44 Cal.4th at p. 1258.)
Because Harris’s commitment offenses occurred prior to July 8, 1978, his case is governed by section 2281 of title 15. (Board of Prison Terms v. Superior Court (2005) 130 Cal.App.4th 1212, 1232, fn. 5.)
All further undesignated references to Regulations are to title 15 of the California Code of Regulations.
“Subdivision (b) of section 3041 provides that a release date must be set ‘unless [the Board] determines that the gravity of the current convicted offense or offenses, 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 at this meeting.’ ” (Lawrence, supra, 44 Cal.4th at p. 1202, italics omitted.) “Title 15, Section 2281 of the California Code of Regulations sets forth the factors to be considered by the Board in carrying out the mandate of the statute. The regulation is designed to guide the Board’s assessment of whether the inmate poses ‘an unreasonable risk of danger to society if released from prison,’ and thus whether he or she is suitable for parole. (Regs., § 2281, subd. (a).)” (Ibid.)
The regulation specifies that the “circumstances tending to establish suitability for parole are that the prisoner: (1) does not possess a record of violent crime committed while a juvenile; (2) has a 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 that can be put to use upon release; and (9) has engaged in institutional activities that indicate an enhanced ability to function within the law upon release.” (Rosenkrantz, supra, 29 Cal.4th at p. 654; Regs., § 2281, subd. (d).)
The regulation also specifies that the “circumstances tending to establish 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.” (Rosenkrantz, supra, 29 Cal.4th at pp. 653-654, fn. omitted; Regs., § 2281, subd. (c).)
Regarding the commitment offense, the regulation further provides that the “[f]actors that support a finding that the prisoner committed the offense in an especially heinous, atrocious, or cruel manner include the following: (A) multiple victims were attacked, injured, or killed in the same or separate incidents; (B) the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (C) the victim was abused, defiled, or mutilated during or after the offense; (D) the offense was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering; and (E) the motive for the crime is inexplicable or very trivial in relation to the offense.” (Rosenkrantz, supra, 29 Cal.4th at p. 653, fn. 11; Regs., § 2281, subd. (c)(1).)
“Finally, the regulation explains that the foregoing circumstances ‘are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel.’ (Regs., § 2281, subds. (c), (d).)” (Lawrence, supra, 44 Cal.4th at p. 1203.)
2. The Board’s Decision
The Board must conduct “an individualized assessment of the continuing danger and risk to public safety posed by the inmate. If the Board determines, based upon an evaluation of each of the statutory factors as required by statute, that an inmate remains a danger, it can, and must, decline to set a parole date.” (Lawrence, supra, 44 Cal.4th at p. 1227.)
3. The Standard of Review
In Lawrence and Shaputis, the California Supreme Court also set forth the standard of review that applies to a decision by the Board (or Governor) to deny parole.
“[B]ecause the paramount consideration for both the Board and the Governor under the governing statutes is whether the inmate currently poses a threat to public safety, and because the inmate’s due process interest in parole mandates a meaningful review of a denial-of-parole decision, the proper articulation of the standard of review is whether there exists ‘some evidence’ that an inmate poses a current threat to public safety, rather than merely some evidence of the existence of a statutory unsuitability factor.” (Shaputis, supra, 44 Cal.4th at p. 1254.)
Thus, “as specified by statute, current dangerousness is the fundamental and overriding question for the Board and the Governor. In addition... evidence in the record corresponding to both suitability and unsuitability factors—including the facts of the commitment offense, the specific efforts of the inmate toward rehabilitation, and, importantly, the inmate’s attitude concerning his or her commission of the crime, as well as the psychological assessments contained in the record—must, by statute, be considered and relied upon by both the Board and the Governor, whose decisions must be supported by some evidence, not merely by a hunch or intuition. By reviewing this evidence, a court may determine whether the facts relied upon by the Board or the Governor support the ultimate decision that the inmate remains a threat to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1213.)
Regarding the commitment offense, the Supreme Court further instructed that “although the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner’s pre- or 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 of the statutory determination of a continuing threat to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1214.)
Accordingly, where “all of the information in a postconviction record supports the determination that the inmate is rehabilitated and no longer poses a danger to public safety, and the [Board] has neither disputed the petitioner’s rehabilitative gains nor, importantly, related the commitment offense to current circumstances or suggested that any further rehabilitation might change the ultimate decision that petitioner remains a danger, mere recitation of the circumstances of the commitment offense, absent articulation of a rational nexus between those facts and current dangerousness, fails to provide the required ‘modicum of evidence’ of unsuitability.” (Lawrence, supra, 44 Cal.4th at p. 1227.)
On the other hand, “[i]f the Board determines, based upon an evaluation of each of the statutory factors as required by statute, that an inmate remains a danger, it can, and must, decline to set a parole date.... [T]he Board has the express power and duty, in an individual case, to decline to fix a firm release date, and thus to continue the inmate’s indeterminate status within his or her life maximum sentence, if it finds that the circumstances of the inmate’s crime or criminal history continue to reflect that the prisoner presents a risk to public safety.” (Lawrence, supra, 44 Cal.4th at pp. 1227-1228.)
The Supreme Court also recognized that “certain conviction offenses may be so ‘heinous, atrocious or cruel’ that an inmate’s due process rights would not be violated if he or she were to be denied parole on the basis that the gravity of the conviction offense establishes current dangerousness. In some cases, such as those in which the inmate has failed to make efforts toward rehabilitation, has continued to engage in criminal conduct postincarceration, or has shown a lack of insight or remorse, the aggravated circumstances of the commitment offense may well continue to provide ‘some evidence’ of current dangerousness even decades after commission of the offense.” (Lawrence, supra, 44 Cal.4th at p. 1228.)
Therefore, a Board decision denying parole is not arbitrary or capricious “when evidence in the record supports the conclusion that the circumstances of the crime continue to be predictive of current dangerousness despite an inmate’s discipline-free record during incarceration.... [W]here the record also contains evidence demonstrating that the inmate lacks insight into his or her commitment offense or previous acts of violence, even after rehabilitative programming tailored to addressing the issues that led to commission of the offense, the aggravated circumstances of the crime reliably may continue to predict current dangerousness even after many years of incarceration.” (Lawrence, supra, 44 Cal.4th at p. 1228.)
Applying this standard of review, the Supreme Court determined in Lawrence that there was no evidence to support the Governor’s decision that the release on parole of the petitioner, who had been convicted of first degree murder for shooting and stabbing her lover’s wife multiple times, would pose an unreasonable risk of danger to the public. (Lawrence, supra, 44 Cal.4th at p. 1223.) The court concluded that “under the circumstances of the present case—in which the record is replete with evidence establishing petitioner’s rehabilitation, insight, remorse, and psychological health, and devoid of any evidence supporting a finding that she continues to pose a threat to public safety—petitioner’s due process and statutory rights were violated by the Governor’s reliance upon the immutable and unchangeable circumstances of her commitment offense in reversing the Board’s decision to grant parole.” (Id. at p. 1227.)
In Shaputis, on the other hand, the Supreme Court upheld the Governor’s reversal of the Board’s decision to grant parole to the petitioner, who had been convicted of second degree murder after shooting his wife at close range. (Shaputis, supra, 44 Cal.4th at p. 1245.) The court found that “[s]ome evidence in the record supports the Governor’s decision” that petitioner remains dangerous, including the aggravated nature of the offense and the “evidence of petitioner’s history of domestic abuse and recent psychological reports reflecting that his character remains unchanged and he is unable to gain insight into his antisocial behavior despite years of therapy and rehabilitative ‘programming.’ ” (Id. at p. 1260.)
4. Analysis
To evaluate the merits of Harris’s habeas corpus petition, we have carefully reviewed the record pursuant to the direction of the California Supreme Court in Lawrence and Shaputis: “[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 the 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; Shaputis, supra, 44 Cal.4th at p. 1254.) We conclude that remand is appropriate to enable the Board to conduct a new parole suitability hearing in accordance with due process, as guided by the principles elucidated in Lawrence and Shaputis.
The California Supreme Court issued the decisions in Lawrence and Shaputis after the Board’s decision in this case. As we have previously discussed, the Lawrence and Shaputis decisions considered the Governor’s review of the Board’s parole decisions and articulated the rule that “as specified by statute, current dangerousness is the fundamental and overriding question for the Board and the Governor. In addition... evidence in the record corresponding to both suitability and unsuitability factors—including the facts of the commitment offense, the specific efforts of the inmate toward rehabilitation, and, importantly, the inmate’s attitude concerning his or her commission of the crime, as well as the psychological assessments contained in the record—must, by statute, be considered and relied upon by both the Board and the Governor, whose decisions must be supported by some evidence, not merely by a hunch or intuition.” (Lawrence, supra, 44 Cal.4th at p. 1213.)
We recognize that the Board considered several parole unsuitability factors, including the commitment offenses of first and second degree murder, which the Board viewed as having been carried out in a dispassionate and calculated manner for a trivial motive. In addition, the Board considered Harris’s prior criminal history of adult convictions and juvenile wardships, his last 128, which occurred five years before the hearing, in 1999, and the recentness of his involvement with AA.
We also recognize that the Board considered several parole suitability factors, including Harris’s realistic parole plans and good community support.
However, our review of the record reveals that the Board did not consider all relevant statutory factors as required under the new Lawrence standard in its determination that Harris currently poses a threat to public safety and parole should therefore be denied. We emphasize that the Supreme Court instructed in Lawrence that “when evaluating whether an inmate continues to pose a threat to public safety, both the Board and the Governor must consider all relevant statutory factors, including those that relate to postconviction conduct and rehabilitation.” (Lawrence, supra, 44 Cal.4th at p. 1219.)
Additionally, the Supreme Court instructed that where “all of the information in a postconviction record supports the determination that the inmate is rehabilitated and no longer poses a danger to public safety, and the [Board] has neither disputed the petitioner’s rehabilitative gains nor, importantly, related the commitment offense to current circumstances or suggested that any further rehabilitation might change the ultimate decision that petitioner remains a danger, mere recitation of the circumstances of the commitment offense, absent articulation of a rational nexus between those facts and current dangerousness, fails to provide the required ‘modicum of evidence’ of unsuitability.” (Lawrence, supra, 44 Cal.4th at p. 1227.)
Therefore, on remand, the Board should consider all relevant evidence including, for example, whether Harris’s polysubstance addictions were significant stressors in his life at the time of the commitment offense; whether Harris, now in his 50’s, is of an age that reduces the probability of recidivism; and whether the numerous psychological reports written since 1976 chronicle any growth or progress on Harris’s part. Under Lawrence, psychological evaluations must be considered in determining parole suitability: “[E]vidence in the record corresponding to both suitability and unsuitability factors—including the facts of the commitment offense, the specific efforts of the inmate toward rehabilitation, and, importantly, the inmate’s attitude concerning his or her commission of the crime, as well as the psychological assessments contained in the record—must, by statute, be considered and relied upon by both the Board and the Governor....” (Lawrence, supra, 44 Cal.4th at p. 1213, italics added.)
The Board’s decision also does not comply with the new Lawrence standard for other reasons. The Board did not consider, as Lawrence requires, whether “any further rehabilitation might change the ultimate decision that petitioner remains a danger.” (Lawrence, supra, 44 Cal.4th at p. 1227, italics added.)
Furthermore, the record here makes clear that the Board’s paramount considerations in denying parole were the commitment offenses themselves, and in particular the aggravating circumstances surrounding their commission. However, as our Supreme Court observed in Lawrence, “[T]here are few, if any, murders that could not be characterized as either particularly aggravated, or as involving some act beyond the minimum required for conviction of the offense.” (Lawrence, supra, 44 Cal.4th at p. 1218.) The Board’s decision failed to consider that “[a]bsent affirmative evidence of a change in the prisoner’s demeanor and mental state, the circumstances of the commitment offense may continue to be probative of the prisoner’s dangerousness for some time in the future. At some point, however, when there is affirmative evidence, based upon the prisoner’s subsequent behavior and current mental state, that the prisoner, if released, would not currently be dangerous, his or her past offense may no longer realistically constitute a reliable or accurate indicator of the prisoner’s current dangerousness.” (Lawrence, supra, 44 Cal.4th at p. 1219.) In this case, we cannot say, as our Supreme Court did in Shaputis, that the record contains evidence, such as recent psychological reports, which reflect that Harris’s character “remains unchanged and he is unable to gain insight into his antisocial behavior despite years of therapy and rehabilitative ‘programming.’ ” (Shaputis, supra, 44 Cal.4th at p. 1260.)
The Board also did not articulate “a rational nexus between” the facts of the commitment offenses and “current dangerousness,” as required by Lawrence where the Board relies upon the commitment offense as a reason to deny parole. (Lawrence, supra, 44 Cal.4th at p. 1227.) Lawrence teaches that absent such “articulation,” the mere “recitation of the circumstances of the commitment offense... fails to provide the required ‘modicum of evidence’ of unsuitability.” (Ibid.)
Thus, the Board’s decision does not utilize the new standard for evaluating parole suitability articulated in Lawrence and Shaputis, which specifies that “current dangerousness is the fundamental and overriding question,” to be answered after consideration of “all relevant statutory factors.” (Lawrence, supra, 44 Cal.4th at pp. 1213, 1219.) It is also unclear whether the Board would have reached the same conclusion regarding Harris’s parole suitability under the Lawrence and Shaputis standard, in light of all the factors weighing for and against his parole suitability. Accordingly, we believe that the appropriate remedy is to direct the Board to reconsider its decision denying parole in light of Lawrence and Shaputis. (See, e.g., In re DeLuna (2005) 126 Cal.App.4th 585, 598.)
IV. DISPOSITION
The matter is remanded to the superior court with directions to modify its order granting Michael Marcel Harris’s petition for writ of habeas corpus as follows. The order shall be modified to delete its incorporation by reference of its order which this court reversed in In re Lewis, supra, 172 Cal.App.4th 13. The order is also modified to direct the Board of Parole Hearings to vacate its May 14, 2004 parole decision and to conduct a new parole consideration hearing in accordance with due process and in light
of the decisions in In re Lawrence, supra, 44 Cal.4th 1181 and In re Shaputis, supra, 44 Cal.4th 1241, including consideration of all relevant statutory factors as required by California Code of Regulations, title 15, section 281, subdivision (b). As modified, the order is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.