Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIC451208, Gary B. Tranbarger, Judge. Affirmed in part and reversed in part with directions.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Heather Bushman, Jennifer A. Neill, and Gregory J. Marcot, Deputy Attorneys General, for Appellant J.F. Salazar, Warden, Chuckawalla Valley State Prison.
OPINION
RICHLI, J.
Janice R. Mazur, under appointment by the Court of Appeal, for Respondent Frederick Hill.
Petitioner Frederick Hill committed two armed robberies at Blockbuster Video stores located in Murrieta and Corona when he was 16 years old. He pled guilty to one count of kidnap for robbery and was sentenced to state prison on August 6, 1998. Since entering prison, Hill has been an exemplary prisoner. He has completed numerous classes and self-help programs. He has no disciplinary record and has expressed remorse for committing the crimes. He has two job offers should he be released from prison.
The Board of Parole Hearings (the Board) last denied parole on October 24, 2005, despite Hill’s prison record and statements made by the Board that it did not believe that Hill would commit any further crimes should he be released. Hill filed a petition for writ of habeas corpus in the trial court. The trial court granted the petition, finding that the Board’s decision denying parole was not supported by the evidence, and ordered the Board to set a parole release date for Hill. J.F. Salazar, as warden at Chuckawalla Valley State Prison (the warden), appeals.
In order to avoid confusion, we will refer to the parties by their lower court designations throughout this opinion; that is, Hill will be referred to as petitioner and the warden as respondent.
We conclude, as the trial court did, that the Board’s determination that Hill was unsuitable for parole was not supported by the evidence, and particularly in light of two recent decisions by the California Supreme Court: In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis). However, the trial court did not have the authority to order the Board to set a release date for Hill; rather, the proper remedy was to grant Hill’s petition for writ of habeas corpus and direct the Board to conduct a new hearing.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Hill’s Prior Criminal Record
Sometime in 1995 or 1996, Hill was transferred out of his high school for threatening a teacher. On May 2, 1997, when Hill was 16 years old, he and another man were discovered by police removing tires from a vehicle and placing them into a waiting car. Hill attempted to run away but was apprehended by police. He was declared a ward of the court and spent five days in juvenile hall for the offense. He was granted probation.
B. The Commitment Offenses
According to the probation report, on June 1, 1997, about 12:00 a.m., Dawn Zuzga, an assistant manager of the Blockbuster Video store in Corona, and a fellow employee, Michael Cesar, had just locked the doors to the store, set the alarm, and were getting prepared to get in their cars to leave. Hill and Brandon O’Neal (who were wearing bandanas to hide their faces) approached Zuzga and Cesar and forced them back to the store by gunpoint; Hill was holding the gun. After unlocking the door and entering the store, Hill told Zuzga, “You better hurry and stop the alarm or I’ll kill somebody.” Hill then asked for money.
O’Neal was a former employee of Blockbuster.
Zuzga and Cesar were ordered into the back office. Zuzga was forced to open the safe (which had a 15-minute time delay) and give Hill and O’Neal the surveillance tape. Zuzga and Cesar were forced to stand in the corner. After taking Zuzga’s purse and Cesar’s wallet, Hill threatened, “We know where you live.” The phone rang, and Zuzga advised Hill and O’Neal that it was probably the alarm company. She heard a clicking sound on the gun, and Hill told her to tell the alarm company that everything was fine.
Once the safe opened, Hill and O’Neal took the $4,000 that was inside. They also took gift certificates and Nintendo games.
On June 2, 1997, about 1:20 p.m., Heather Ryan and her boyfriend, Christopher Naumann, were locking up the Blockbuster Video store in Murrieta where Ryan worked. Hill approached them and asked where he could find a telephone. O’Neal, who was with Hill, raised his shirt to show a handgun to Ryan and Naumann.
O’Neal ordered Ryan to reopen the store. When she lied and said that another employee had taken the keys, O’Neal took out the gun and pointed at her. She opened up the store and was ordered to open the safe. Hill and O’Neal took over $2,000 in cash. They also took some Nintendo games and Naumann’s wallet.
On June 9, 1997, officers were patrolling the area around another Blockbuster Video store in Corona. O’Neal and defendant were sitting in a car near the store. Two blue bandanas were found in the car, and a handgun, which was later determined to be a BB gun, was found secreted under the driver’s seat.
Zuzga and Ceser identified the BB gun as similar to the one used in their robbery. Cesar identified Hill and O’Neal from photographic lineups. Hill was identified by Ryan from a photographic lineup. Items found in the car matched those stolen from the Murrieta store. Property from the robbery of the Murrieta store was found where O’Neal was living.
Cesar told officers he was still in fear of his life because of the threats made by Hill and O’Neal. Cesar had nightly nightmares and was in counseling. Zuzga refused to cooperate with police for fear of death threats.
Hill was interviewed by detectives on June 9, 1997, and denied any involvement in the robbery.
Both Hill and O’Neal pled guilty to violating section 209, subdivision (b). On July 9, 1998, Hill admitted all of the crimes and stated that he had “‘made a stupid mistake.’” Hill hoped that he could get an education in prison and get back to society. He blamed only himself for the crimes. While he had been in juvenile hall on this case, he had been involved in the Scared Straight Program, where he “talked to youthful offenders and their parents in an attempt to get them to change their lives before they get into as much trouble” as he had.
The probation officer, “with reservation,” recommended that Hill receive probation. The probation officer believed that Hill should be given a chance to rehabilitate.
At the sentencing hearing held on August 6, 1998, the sentencing court believed that the probation officer’s recommendation of probation for a defendant who pled guilty to kidnap for purpose of robbery, which carried a life sentence, was inappropriate. It noted, “The crimes that he committed on this night and on another occasion are about the worst you can commit, in my opinion, without killing somebody. And, frankly, he’s lucky that someone wasn’t killed.” The sentencing court also rejected the recommendations of probation from counselors at juvenile hall. He was sentenced to life with the possibility of parole.
C. Social History and Plans Upon Release
At time of Hill’s arrest, he had no gang affiliation. He denied any substance abuse problems. He had no history of physical abuse. He had had no father growing up, and his mother used drugs.
At the time of the parole hearing, Hill’s mother was clean and sober. Hill’s aunt agreed to have Hill live with her and her husband for as long as it took for him to get back on his feet. Hill had two job offers, one as a real estate researcher and one as a laborer.
Hill presented several letters to the Board. These letters included one from the aunt and uncle who had agreed to let Hill live with them. Hill’s siblings and mother wrote letters of support. Hill had numerous visits from family members while in prison.
Some of the letters were attached to Hill’s response to the warden’s return to the petition for writ of habeas corpus.
D. Hill’s Prison Record and Psychological Reports
According to the statements made by the Board at the hearing, Hill had excelled in prison. He had no disciplinary actions, or 115’s. Hill had one “disciplinary infraction” in 2003, for which he was later exonerated.
The prison records are not included in the record. However, the Board set out the record during the hearing, and neither party disputes these findings.
Form 115 of the California Department of Corrections and Rehabilitation (formerly the California Department of Corrections) (CDC) is used to report inmate misconduct that is either serious or in violation of the law. (Cal. Code Regs., tit. 15, § 3312, subd. (a).)
Hill received a high school diploma while still in juvenile hall in 1997. He also attended college. He was on the dean’s list in 2003 and 2004 and graduated with honors in 2004. Hill completed courses in landscaping in 2002 and roofing in 2004. In 2003, he completed three separate real estate courses. He attended a college water treatment course between 2001 and 2003. He also had attended numerous self-help courses in 2002 and 2003. Hill had worked in prison as a landscaper and tutor.
In addition, Hill’s most recent psychological report found that he had no history of substance abuse problems. Despite this, he participated in Alcoholics Anonymous and Narcotics Anonymous from 2001 through 2004. Hill had no history, and no current indications, of mental illness. Hill had expressed complete remorse for his crimes.
E. The Parole Proceedings
Hill first became eligible for parole in November 2003. The instant parole hearing was conducted on October 24, 2005. A deputy district attorney representing Riverside County was in attendance, and an attorney appeared on Hill’s behalf.
The Board noted that it had reviewed prior parole hearing transcripts and Hill’s file. The Board first recited the facts of the commitment offense from the probation officer’s report. The Board also reviewed the aggravating factors that were set forth in the probation report. Hill admitted he and O’Neal thought about the robbery before committing it. The second robbery involved two employees, but no one was hurt. Hill admitted one of them threatened the employees during the first robbery that he knew where they lived. Hill admitted the robberies were mainly his idea; he wanted money and decided to rob the stores.
It is not clear from the record the number of prior parole hearings.
Hill admitted he had threatened a teacher and was truant, which resulted in his being transferred to another school. He admitted to committing the theft of the tires.
The Board also reviewed Hill’s social history, including that he had no father growing up and that his mother used drugs. The Board also noted that Hill’s mother was now clean and sober, that Hill’s aunt and uncle had agreed to have Hill live with them, and that Hill had two job offers.
The Board looked at letters from friends and family, and also a letter from Hill apologizing for committing the crimes, which he blamed on his youth, ignorance, immaturity, and lack of respect.
The Board noted that at the prior parole hearing, Hill was told to remain disciplinary free, participate in self-help programs, and have a new psychological evaluation. Since his last parole hearing, Hill had completed a vocational roofing class. The Board reviewed the other educational classes that Hill had completed. He had several certificates from self-help classes.
Hill had been disciplinary free for the entire seven years two months he had been in prison. He had one “refused to comply letter” on June 20, 2003, which turned out to be a misunderstanding. The Board also reviewed Hill’s new psychological evaluation.
The district attorney opposed parole and argued that Hill was unsuitable because of the callousness of the crime; he needed more time in prison to ensure that the gains he had made were permanent; and he might not do well in an unstructured environment.
Hill’s attorney disagreed that Hill’s crimes were particularly cruel or callous. However, Hill had completed every possible vocational and self-help program; he had no disciplinary referrals; his risk for violence had been evaluated as being the same as any average citizen; and no more benefit could be obtained by keeping him in prison.
Hill spoke to the Board. He admitted he had been immature and on a crime spree. He sincerely regretted committing the crimes and assured the Board he would never do so again.
The Board concluded that Hill was unsuitable for parole and “would pose an unreasonable risk of danger to society or a threat to public safety if released from prison.” It noted the commitment crime was committed in a cruel and callous manner. There were two robberies involving multiple victims, and one victim was too scared to testify. The Board noted that the gun used was not lethal. It also found the crime “inexplicable in terms of the relationship to the offense because it’s easier to do that than go out and get a job, . . . “
Further, the Board opined that Hill’s social history indicated that, when he was dealt a difficult childhood, he became angry and committed the robberies. It felt he was fortunate he was not killed during these robberies. The Board then stated, “[T]here’s no question in our minds that you’re -- that you’re making it tough on us. You’re a breath of fresh air.”
The Board noted that Hill’s crime spree had been of short duration. The fact that Hill had had no gang involvement was favorable to parole. The Board noted, “[T]his is not an easy decision for us, given your background and particularly since you were committed to the instruction.” Hill was commended for taking advantage of programs at the prison and for not having any institutional behavioral problems.
The Board noted, “And we’re only going to give you a year, so let’s take any mystery out of it here, so we’re just going to deny you for a year. And in that year, [we] want you to make another assessment of yourself and [we] want you to – [we] want you to aim a little higher . . . .” The Board also noted that it did not think that Hill was going to “rob anymore,” but he would need to find a better paying job than a laborer, of which the Board thought he was capable. The Board recommended that he try to become a vocational teacher.
The Board also noted that Hill was only 25 years old. Although recognizing that if Hill had been tried as a juvenile and committed to the California Youth Authority he would be out by now, Hill was found unfit at the time and was tried as an adult based on the extreme seriousness and the sophistication of the commitment offense. The Board advised Hill he was on the right track and to not give up. Hill was advised that he should continue to remain disciplinary free and “tune” his vocations. The Board indicated he was “very close to a date.”
F. The Trial Court Proceedings
On June 8, 2006, Hill filed a petition for writ of habeas corpus in propria persona in the trial court arguing that insufficient evidence supported the Board’s denial of a parole date. On June 26, 2006, the trial court issued an order to show cause why the petition should not be granted. The warden filed a return on August 2, 2006, arguing that the Board’s decision denying parole was proper.
Hill was appointed counsel. Hill filed a response to the warden’s return. On March 8, 2007, the trial court issued an order pursuant to California Rules of Court rule 4.551(c) that it had found the petition stated a prima facie case for relief and ordered the warden to file a return to the petition within 30 days. There is no indication in the record that a return was ever filed.
On April 13, 2007, the trial court issued its order granting Hill’s petition for writ of habeas corpus. In that order, the trial court noted that “[a] finding of unsuitability for parole is a judgment of the Board that ‘“the prisoner will pose an unreasonable risk of danger to society if released from prison.”’”
The trial court reviewed the suitability and unsuitability factors in granting parole contained in California Code of Regulations, title 15, § 2402. It recognized the Board had concluded that defendant’s prison record had been “exemplary.” As for the Board’s assessment of Hill’s unstable social history, it felt there was no evidence that Hill was at fault for the unstable environment. It assumed that the prior criminal history factor required infliction of serious injury, none of which were in Hill’s priors. Finally, as to the factor of the commitment offense, it stated that it must be shown the crime committed was in an especially heinous, atrocious, or cruel manner. It found nothing about the crime was any more callous than any other kidnap for robbery offense. It did recognize the fact that Hill used a gun and told the victims he knew where they lived after taking their wallets, both of which were beyond what normally is needed in order to commit the crime.
After assessing the above factors, the trial court ruled, “A review of the facts of this case and the applicable regulations leads the court to conclude that there is no evidence in support of the Board’s finding that the petitioner is not suitable for parole. [¶] The Board is ordered to find the petitioner suitable for parole and set an appropriate release date. This order is stayed for 30 days in order to permit the Board to seek appellate review.”
The warden filed a notice of appeal and request for a stay from the grant of the habeas petition. A stay was not granted by the trial court. On September 21, 2007, we stayed the execution of the trial court’s April 13, 2007, order until final determination in this matter.
II
THE BOARD’S DECISION TO DENY PAROLE WAS NOT SUPPORTED BY “SOME EVIDENCE” THAT HILL WOULD POSE AN UNREASONABLE RISK OF DANGER TO SOCIETY IF RELEASED FROM PRISON
The warden contends that the trial court abused its discretion in concluding that the Board’s decision finding Hill unsuitable for parole was not supported by “some evidence.”
After the briefing was complete in this case, the California Supreme Court issued its opinions in Lawrence, supra, 44 Cal.4th 1181, and Shaputis, supra, 44 Cal.4th 124. Since the California Supreme Court merely clarified prior decisions, and Hill set forth the standard of review adopted by the California Supreme Court in his responding brief, we believe that the warden has had an adequate opportunity to address this matter without the necessity of further briefing.
A. Standard of Review
“[A] life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.” (Cal. Code Regs., tit. 15, § 2402, subd. (a).) “[C]ircumstances 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. (Cal. Code Regs., tit. 15, § 2402, subd. (c).)” (In re Rosenkrantz (2002) 29 Cal.4th 616, 653-654 (Rosenkrantz), fn. omitted.)
“Factors 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. (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1).)” (Rosenkrantz, supra, 29 Cal.4th at p. 653, fn. 11.)
Prior to its opinions in Lawrence and Shaputis, the California Supreme Court had held, “[A] . . . decision granting or denying parole is subject to a limited judicial review to determine only whether the decision is supported by ‘some evidence.’” (Rosenkrantz, supra, 29 Cal.4th at p. 625.) “[T]he ‘some evidence’ standard is extremely deferential. . . . ” (Id. at p. 665.) “Only a modicum of evidence is required. Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the Governor [or Board]. . . . [T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor [or Board], but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious. 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 [Board]’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 [or Board’s] decision.” (Id. at p. 677.)
The California Supreme Court clarified, but did not overrule, this standard of review in Lawrence and Shaputis.
In Lawrence, the inmate’s commitment offense was a result of her having an affair with a dentist. When the dentist finally ended the affair and told the inmate that he was staying with his wife, the inmate armed herself with a gun and potato peeler. She then confronted the dentist’s wife, shooting her and repeatedly stabbing her with the potato peeler. The inmate fled and remained a fugitive for 11 years. (Lawrence, supra, 44 Cal.4th at pp. 1192-1193.)
After turning herself in and being sentenced to life in prison, the inmate was an exemplary prisoner, having no discipline violations, taking numerous self-help classes, and having positive psychological examinations. (Lawrence, supra, 44 Cal.4that pp. 1194-1195.) She was granted parole three times by the Board, but each time the decision was reversed by the Governor. (Id. at pp. 1195-1197.) In 2005, the Board granted parole for the fourth time, and the Governor again reversed the decision, finding that the inmate remained an unreasonable safety risk to due to the callous nature of the commitment offense, she had had some negative psychological evaluations when she was first incarcerated, and she had been counseled regarding discipline problems while in prison. (Id. at p. 1200.) The Court of Appeal reversed the Governor’s decision, finding that the Board properly determined that defendant was suitable for parole. (Id. at p. 1201.)
The California Supreme Court granted review to resolve the dispute in several appellate court cases as to the appropriate standard of review. Some cases interpreted Rosenkrantz to only require that in denying parole, the Governor, Board, or reviewing court could find “some evidence” supported that the commitment offense was particularly egregious, or some other factor was supported by “some evidence.” (See In re Betencourt (2007) 156 Cal.App.4th 780, 800; In re Andrade (2006) 141 Cal.App.4th 807, 819; In re Burns (2006) 136 Cal.App.4th 1318, 1327-1328.) Other appellate courts interpreted Rosenkrantz to require that “some evidence” support the ultimate determination that the inmate remains a current threat to public safety. (See In re Lee (2006) 143 Cal.App.4th 1400, 1409; In re Scott (2005) 133 Cal.App.4th 573, 595; In re Elkins (2006) 144 Cal.App.4th 475, 499.)
Hill relied on these cases in his respondent’s brief.
The California Supreme Court determined that “[i]f we are to give meaning to the statute’s directive that the Board shall normally set a parole release date (§ 3041, subd. (a)), a reviewing court’s inquiry must extend beyond searching the record for some evidence that the commitment offense was particularly egregious and for a mere acknowledgment by the Board or the Governor that evidence favoring suitability exists. Instead, under the statute and governing regulations, the circumstances of the commitment offense (or any of the other factors related to unsuitability) establish unsuitability if, and only if, those circumstances are probative to the determination that a prisoner remains a danger to the public. It is not the existence or nonexistence of suitability or unsuitability factors that forms the crux of the parole decision; the significant circumstance is how those factors interrelate to support a conclusion of current dangerousness to the public. [¶] Accordingly, when 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. [Citations.]” (Lawrence, supra, 44 Cal.4th at p. 1212.)
The Supreme Court also discussed the appropriate weight to be given to the commitment offense. In evaluating the crime, “it is not the circumstance that the crime is particularly egregious that makes a prisoner unsuitable for parole -- it is the implication concerning future dangerousness that derives from the prisoner having committed that crime.” (Lawrence, supra, 44 Cal.4th at pp. 1213-1214.) Hence, the court concluded, “although the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for 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 offenses remain probative to the statutory determination of a continuing threat to public safety.” (Id.at p. 1214.)
It went on to state 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.) The court recognized that despite an egregious commitment offense, “it is evident that the Legislature considered the passage of time -- and the attendant changes in a prisoner’s maturity, understanding, and mental state -- to be highly probative to the determination of current dangerousness.” (Id. at pp. 1219-1220.)
The Supreme Court concluded, “In sum, the Board or the Governor may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate’s criminal history, but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. [Citation.] Accordingly, the relevant inquiry for a reviewing court is not merely whether an inmate’s crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when consider in light of the full record before the Board or the Governor.” (Lawrence, supra, 44 Cal.4th at p. 1221.)
In applying this standard of review to the facts in Lawrence, the Supreme Court concluded that although the crime committed by the inmate was egregious (Lawrence, supra, 44 Cal.4th at pp. 1224-1225), it rejected that other factors -- prior poor psychological evaluations and being counseled eight times for misconduct such as being late to appointments -- supported that the inmate was currently dangerous. (Id. at p. 1224.) It also concluded, “[E]ven as we acknowledge that some evidence in the record supports the Governor’s conclusion regarding the gravity of the commitment offense, we conclude there does not exist some evidence supporting the conclusion that petitioner continues to pose a threat to public safety.” (Id. at p. 1225.) “When, as here, 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 Governor 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.’” (Id. at pp. 1226-1227.)
In the companion Shaputis case, the court applied the standard of review set forth in Lawrence. In Shaputis, the inmate had a long history of domestic violence. (Shaputis, supra, supra, 44 Cal.4that pp. 1246-1247.) The inmate eventually shot and killed his second wife. (Id. at pp. 1247-1248.) The other factors of suitability and unsuitability were that the inmate had a long criminal history, but the instant offense resulted in his first felony conviction (id. at p. 1248); he had severe substance abuse problems (id. at p. 1249); he had little contact with his family throughout his incarceration (ibid); but he had also participated in self-help programs, been discipline free throughout his incarceration, and had positive psychological examinations (ibid). The parole board denied parole, citing to the callous nature of the crime and the fact that he had a history of domestic violence. (Id. at pp. 1250-1251.) The superior court upheld the parole board’s ruling. (Id. at p. 1251.)
The Court of Appeal reversed the decision, finding that the parole board had erred in concluding that the inmate was not suitable for parole, and ordered a new parole hearing. (Shaputis, supra, 44 Cal.4that p. 1251.) The parole board then granted parole, the Governor found that the inmate was unsuitable for parole, and the Court of Appeal reversed the Governor’s decision. (Id. at pp. 1252-1253.)
The Supreme Court granted review. Reiterating what it held in Lawrence, the court stated, “[T]he 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 unsuitablility factor. [Citation.]” (Shaputis, supra, 44 Cal.4th at p. 1254.) It then explicated the standard of review as, “[w]hen a court reviews the record for some evidence supporting the Governor’s conclusion that a petitioner currently poses an unreasonable risk to public safety, it will affirm the Governor’s interpretation of the evidence so long as that interpretation is reasonable and reflects due consideration of all relevant statutory factors.” (Id. at p. 1258.)
In applying that standard to the facts in Shaputis, the court concluded that the inmate was not suitable for parole due to both the aggravated circumstances of the commitment offense, and “’his lack of insight into the murder and the abuse of his wife and family.’” (Shaputis, supra, 44 Cal.4th at pp. 1255, 1259-1260.)
B. Application of Standard of Review to the Instant Case
In this case, the Board relied almost exclusively on the commitment offense in denying parole. It concluded the commitment offense was committed in a cruel and callous manner, involved multiple victims, and was committed for a trivial reason. The trial court, in reversing the Board’s decision, concluded that the Board had erred by finding the crimes especially cruel and callous. We do not agree with this finding by the trial court.
The factors cited by the Board provide some evidence supporting that the committing offense was carried out in an “especially heinous, atrocious or cruel manner.” (Cal. Code Regs, tit. 15, § 2402, subd. (c)(1)). Multiple victims is certainly a factor to be considered. (Id., subd. (c)(1)(A).) Further, the fact that defendant threatened his victims that he knew where they lived showed the crime was carried out in an dispassionate manner. (Id., subd. (c)(1)(B).) Somewhat militating to these factors is the fact that the gun used was a BB gun, which the Board recognized was not a lethal weapon. However, there are factors that “supply some evidence” supporting that the commitment offense was carried out in especially cruel and callous manner. (See Lawrence, supra, 44 Cal.4that p. 1224.)
However, in light of the decisions in Lawrence and Shaputis, this finding of egregiousness or callousness alone does not always support that an inmate is currently dangerous and is unsuitable for parole. In fact, neither the Board nor the trial court assessed how the commitment offense reflected on Hill’s current dangerousness. The relevant inquiry for a reviewing court is not merely whether an “inmate’s crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when consider in light of the full record before the Board or the Governor.” (Lawrence, supra, 44 Cal.4th at p. 1221.) The Board never made a connection between the commitment offense and Hill’s current dangerousness. In fact, it noted that it did not believe that Hill would commit such a crime again. This lack of “articulation of a rational nexus between those facts and current dangerousness” fails to provide some evidence of unsuitability. (Id. at p. 1227.)
The other factor that the Board took into account was defendant’s unstable social history. (Cal. Code Regs, tit. 15, § 2402, subd. (c)(3).) The Board concluded that when defendant was dealt a difficult childhood, he became angry and committed robberies. However, the Board also expressed, as noted ante, that it did not believe Hill would commit additional crimes. Further, Hill’s family, including his mother, had shown tremendous support for Hill. There is no evidence in the record to support that Hill’s previously unstable family life made him a danger to society.
Although the Board recited several factors showing unsuitability, it did not express how these factors contributed to Hill’s current dangerousness. The Board stated that it had no doubt if Hill was released that he would not commit another robbery. The Board recognized that Hill had an exemplary prison record and excellent prospects should he be released but did not assess these factors in relation to how his commitment offense continued to make him a risk to public safety. As such, the Board’s conclusion that Hill was unsuitable for parole did not afford Hill due process.
C. Remedy
The warden contends that if we find that the trial court properly reversed the Board’s finding of unsuitability, we should nonetheless conclude the trial court erred by ordering the Board to set a parole release date. The warden contends that the proper remedy was to order the Board to conduct a new hearing that comports with due process.
The proper remedy for a reversal of a Board’s finding that an inmate is unsuitable for parole was not discussed in Lawrence or Shaputis.
The California Supreme Court stated in Rosenkrantz that “[i]f the decision’s consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner’s petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law. [Citations.]” (Rosenkrantz, supra, 29 Cal.4th at p. 658.)
In In re Ramirez (2001) 94 Cal.App.4th 549, disapproved of on other grounds in In re Dannenberg (2005) 34 Cal.4th 1061, the parole board denied parole to the defendant. However, the trial court reversed that decision, then granted the defendant’s petition for writ of habeas corpus, and ordered the parole board to set a parole release date. (Ramirez,at pp. 552, 558-559, 572.) The appellate court agreed with the trial court’s decision reversing the parole board’s finding of unsuitability. However, it rejected that the trial court possessed the authority to order the parole board to set a release date. “In deference to the Board’s broad discretion over parole suitability decisions, courts should refrain from reweighing the evidence, and should be reluctant to direct a particular result.” (Id. at p. 572.) Accordingly, the Ramirez court reversed the trial court’s order. It then directed the trial court to issue a new order granting the habeas corpus petition, and it directed the parole board to reconsider the factors of suitability and unsuitability for parole, as set forth in the opinion, at a new hearing. (Ibid.)
We agree this is the appropriate remedy. The trial court here could not set a parole release date. Rather, the proper remedy was to grant Hill’s petition for writ of habeas corpus and order the Board to reevaluate Hill’s suitability for parole at a new hearing.
III
DISPOSITION
The order granting Hill’s petition for writ of habeas corpus is affirmed. The order directing the Board to set a release date is reversed, and the trial court is directed to enter a new order directing the Board to vacate the denial of parole and to conduct a new parole suitability hearing for Hill. The Board shall conduct the hearing in accordance with the standard set forth in this opinion as soon as is practicable upon the finality of this opinion.
We concur: McKINSTER, Acting P.J., KING, J.