Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County. Ct. No. HC011490A, John S. Somers, Judge.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Julie L. Garland, Assistant Attorney General, Jennifer A. Neill and Christopher J. Rench, Deputy Attorneys General, for Appellant.
Steve M. Defilippis, under appointment by the Court of Appeal, for Respondent.
Wiseman, J.
After the Board of Parole Hearings (Board) granted John Hoskings parole, former Governor Arnold Schwarzenegger reversed the Board’s decision. Hoskings filed a petition for writ of habeas corpus, challenging the Governor’s decision. The trial court granted the petition, ordering the reinstatement of the Board’s decision and the release of Hoskings. Wasco State Prison Warden P.L. Vazquez appealed. We granted the warden’s petition for writ of supersedeas, staying the trial court’s order.
All references to the Governor are to former Governor Arnold Schwarzenegger.
We reverse the trial court because the Governor’s reversal decision is supported by some evidence.
FACTUAL AND PROCEDURAL HISTORIES
The facts are taken from the appellate decision and probation officer’s report in the criminal case unless otherwise noted.
On May 8, 1981, George Quellette’s body was found in his abandoned pick-up truck. The body had been wrapped in a rug, and the truck door was tied shut with a rope.
On April 23, 1981, Hoskings, George Denton, and Steve Crull were working for Quellette, helping him dismantle an old house on his property. There was a lunch break and Hoskings, Denton, and Crull went to Crull’s cabin nearby. Denton saw a rifle in the cabin and asked to shoot it. The three men took turns shooting the rifle. They discussed the possibility of shooting Quellette. Hoskings said he would shoot Quellette for money. Denton said he would not have to work anymore and Quellette had several thousand dollars. Denton later testified that he was not serious. Crull also admitted to participating in the discussion but said that he thought no one was serious.
The three men returned to the worksite. Hoskings took the rifle with him. Hoskings shot Quellette many times. Crull ran away to his house and met Denton there. Hoskings arrived at Crull’s cabin and said that Quellette was still alive. He wanted three more bullets to finish him off. Crull gave Hoskings one bullet and loaded the rifle for him. Denton said they had to do something because they were all up for murder. Hoskings went back to the worksite and another shot was fired.
Crull covered the body with a coat, and the three men put the body in Quellette’s truck. Hoskings and Crull tried to clean blood from the worksite. They all looked for brass casings but did not find any. Denton and Hoskings drove off in the pick-up to take care of the body. They pulled off the road and parked the truck behind some trees. Hoskings threw Quellette’s wallet in a river. Crull stayed at the worksite and hid the rifle.
Crull thought that Denton and Hoskings had planned the killing. Crull barricaded himself in his house for two days believing that Hoskings or Denton might come back to kill him. A criminal complaint was filed against Crull and later dismissed.
Hoskings was 17 years old at the time he committed the murder. Denton was 19 years old. Denton and Crull were granted immunity and testified against Hoskings. A jury convicted Hoskings of first degree murder, but the trial court granted him a new trial. Hoskings then pleaded guilty to second degree murder. He was sentenced to 17 years to life in prison.
On April 23, 1983, Hoskings escaped from custody and was re-arrested the next day. He received a two-year consecutive sentence on the charge of escape from a county facility without force. Hoskings had a previous juvenile record but no history of violent or assaultive behavior.
Board’s grant of parole
On January 12, 2009, the Board held a suitability hearing and granted Hoskings parole.
The Board also granted Hoskings parole in 2003 and 2006, but the Governor reversed those decisions.
At the hearing, Hoskings discussed his commitment offense. Denton owed Quellette money. The day before the murder, Denton was at Hoskings’s house. Quellette pulled up to the house, and Hoskings saw him pull a gun out of his glove box. Quellette told Hoskings he was looking for Denton because Denton owed him money. Quellette told Hoskings that Denton could help him tear down a cabin to work off the debt.
Denton asked Hoskings to help him kill Quellette and Hoskings agreed. Hoskings thought they would probably beat up Quellette because they did not have a weapon.
When they went to the worksite, however, they met Crull and he had a rifle. They talked about using the rifle to kill Quellette. Hoskings told the Board, “Well when we all three talked about killing him and I was handed the rifle and I said okay, I’ll do it.” Hoskings shot Quellette while he was bending over. Hoskings was not thinking at the time and he just kept shooting. He told the Board, “I think it was just out of, you know, fear that he would come at me or something.” The presiding commissioner asked why Quellette would come at him, and Hoskings responded, “No, I’m just saying that I don’t know why, I just kept shooting.” Hoskings said, “I don’t think you can explain something like that. I mean I was immature and I was looking up to two older people and trying to impress them and fit in. It’s hard to explain it without making it sound like an excuse or a justification.… I just I don’t think I was thinking at all.”
The Board reviewed the 2007 supplemental psychological evaluation by Dr. Wilkinson, which was based on an interview that took place on October 22, 2007. Dr. Wilkinson observed Hoskings’s general manner and appearance during the evaluation:
“He was polite and cooperative with the evaluation procedures, as evidenced by answering all of the posed questions in a seemingly sincere manner and with sufficient effort; however he expressed a great deal of dissatisfaction with having had been placed in ‘the cage’ for an hour while waiting for this evaluation. He was clearly unsettled by that experience and complained that he would probably be treated in the same manner on his way back to his housing.”
In the “risk assessment/conclusions” portion of the report, Dr. Wilkinson addressed the HCR-20 checklist of historical, clinical, and risk-management factors associated with violence. Hoskings’s “‘historical’ score classified him in the high range, ” but was not amenable to significant change because “the bulk of data contributing to this estimate is historical.…” “In [his] ‘clinical’ or more current and dynamic domain of risk assessment score, the inmate present[ed] a low risk of violence.” Hoskings’s “risk management” score was also in the low range. The evaluator noted:
“There is also mild concern about his ability to manage stress and tolerate frustrations, considering his reaction to being held in the cage prior to his evaluation. He was clearly affected and frustrated by having been placed in the cage prior to this interview. How will he be able to manage the numerous stressors he will face in the community while seeking funding for his education and employment? Transitioning from a highly structured and regimented milieu such as state prison to the free community is likely to be stressful, particularly after over 25 years of incarceration.”
The evaluator summarized, “Overall, then, risk assessment estimates suggest that the inmate presents a low likelihood to become involved in a violent offense if released into the free community.”
The Board allowed Hoskings to address the holding-cell incident. He explained, “I waited for about an hour and I was a little agitated and when I came into the room to speak with her she asked me how I was doing and I said well, you know, I just got out of the cage because I was, you know, not upset I wasn’t like boisterous or anything like that.…” The holding cell was about the size of a phone booth. Hoskings did not feel claustrophobic or humiliated, but it was loud and “a little stressful in the cage.” Hoskings is placed in the holding cell before each parole hearing. The Board appeared to be satisfied with Hoskings’s response and did not mention the holding-cell incident during its statement of decision.
The Board asked Hoskings how he had changed since he committed the life offense. He said that he had matured and thinks for himself now. Hoskings credited his participation in Slow Down/Despacio, a program for troubled young people, for the change. He also attributed his change to education and growing older: “I think school has helped change me a lot to become a better person and to see life differently and why we have rules and laws and ethics. I don’t even think it even crossed my mind when I was young. So I think age has helped me as well as school.” After completing his associate of arts degree (A.A.), Hoskings began a certificate program for drug counselors. His goal was to earn a Master’s degree in psychology.
Hoskings told the Board that he owed society “a big debt but it can’t be repaid.” He wanted to “make a difference and to give back when [he] can” through the Slow Down/Despacio program and drug counseling. He knew that Quellette had a daughter who was three years old at the time of the murder, and he recently wrote her an amends letter.
The Board reviewed Hoskings’s progress in prison. He earned his G.E.D., a paralegal certificate, an A.A. degree, vocational training in proofreading and dry cleaning, and had taken courses in auto repair. He painted murals in the visiting room and paintings that were sold in the prison hobby store. He worked as a clerk, porter, barber, cook, proofreader, course leader, and janitor. He participated in the Slow Down/Despacio program. He had participated in Narcotics Anonymous and Alcoholics Anonymous consistently since 2004, and he completed programs on anger management, victim awareness, self-understanding, impulse control, and transition. He had been discipline-free since 1996.
If granted parole, Hoskings planned to stay with his sister and her family in Bakersfield. Both his sister and mother submitted letters stating that Hoskings could stay with them and they would provide him support. Hoskings had a job and also wanted to continue his education so that he could eventually work in drug counseling.
The Board found that the crime was particularly offensive and disturbing but determined that, because of his positive adjustment, Hoskings no longer posed a risk to society. Primarily, the Board believed that Hoskings was sincerely remorseful and understood the magnitude of his crime. The Board also noted that Hoskings participated in many programs that would help him succeed and function within the law upon release, he had shown the ability to function within the law by his lack of prison discipline for 14 years, and his parole plans were realistic. At the close of the hearing, the deputy commissioner commented, “I also want to say it’s different seeing you in person than seeing you on paper. Your crime is horrendous, it’s never going to go away. I am 100 percent comfortable with the decision that we made here today and I wish you well.”
Governor’s reversal
On June 11, 2009, the Governor reversed the Board’s decision.
The Governor observed that the murder “was especially atrocious because there is evidence that it involved some level of premeditation” and that the “victim was unarmed and posed no threat to Hoskings, yet he shot him multiple times, then returned to shoot him again.”
The Governor was also concerned that “Hoskings has not developed sufficient insight into the circumstances leading to his life offense and has not fully accepted responsibility for his actions.” The Governor wrote, “His explanation of the offense has changed over time and minimizes his role in the offense. Hoskings told the Board in … 2009 that Denton wanted to kill the victim, because of the drug debt, and that Denton and Crull handed him the gun and he agreed to kill the victim. He also claimed that, after he fired the first shot, he kept shooting out of ‘fear that [the victim] would come at me or something.’ Hoskings’ explanations do not correspond with the facts contained in the record. According to the appellate record, Denton and Crull were both re-engaged in working when they suddenly heard Hoskings fire the rifle.… Hoskings’ inconsistent explanations for the crime indicate that he is either lying or that he does not fully understand the circumstances leading to the crime.”
In addition, Hoskings was rated a low-to-moderate risk for general recidivism in Dr. Wilkinson’s psychological evaluation. The evaluator “noted concern about Hoskings’ ability to manage stress and tolerate frustrations in the community because he had reacted with frustration to being confined in a holding cell for a period prior to his evaluation.”
Finally, the Governor noted that Hosking had been disciplined six times, most recently in 1995 for verbally threatening to kill another inmate.
Petition for habeas corpus
On October 27, 2009, Hoskings filed a petition for writ of habeas corpus in Kern County Superior Court. He claimed that the Governor’s decision was unsupported by any evidence. On July 2, 2010, the trial court granted the petition. The court agreed with the warden that insight into the commitment offense is a critical factor to determine parole suitability but found no evidence of lack of insight in this case. According to the trial court, “There is [no] evidence in the record from which it can reasonably be concluded that petitioner lacks insight into the commission of his crime. Insisting that a petitioner simply parrot a dictated version of events which never changes with the passage of time discourages rather than encourages the acceptance of responsibility and the development of real insight into the commission of the crime.”
Regarding the incident in which Hoskings became frustrated about waiting in a holding cell for over an hour, the court noted, “he was expressing his frustration, and his anger management classes taught him to not unduly dwell on the matter.”
The court concluded that remand to the Governor or the Board “would subject petitioner to little more than a judicial merry-go-round” and, instead, reinstated the Board’s 2009 parole suitability decision.
The court ordered the “January 27, 2009 parole suitability decision” reinstated. The Board granted parole, however, on January 12, 2009. The decision became final in May 2009. The date stamps are unclear in the copy of the parole decision in the record, but it appears that the decision became final on May 12, 2009.
The warden appealed the trial court’s grant of habeas corpus relief. (Pen. Code, § 1507.)
DISCUSSION
Under the current sentencing law, certain serious offenders, including inmates like Hoskings convicted of noncapital murder, are subject to indeterminate sentences. (In re Dannenberg (2005) 34 Cal.4th 1061, 1078.) An inmate serving an indeterminate sentence may serve up to life imprisonment but becomes eligible for parole after serving a minimum term. (Ibid.)
Penal Code section 3041, subdivision (a), provides that, “[o]ne year prior to the inmate’s minimum eligible parole release date, ” a panel of the Board “shall … meet with the inmate and shall normally set a parole release date.…” The Board “shall set a release date unless it 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.…” (Id., subd. (b).) “‘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.’ [Citations.]” (In re Lawrence (2008) 44 Cal.4th 1181, 1204 (Lawrence).)
Title 15, section 2402, of the California Code of Regulations provides the framework for making the parole decision. “All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner’s social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner’s suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.” (Cal. Code Regs., tit. 15, § 2402, subd. (b).)
California Code of Regulations, title 15, section 2402, subdivision (c), sets out factors indicating unsuitability for parole. They include: (1) the life offense was committed “in an especially heinous, atrocious or cruel manner”; (2) the prisoner has a previous record of violence; (3) “[t]he prisoner has a history of unstable or tumultuous relationships with others”; (4) the prisoner has committed a sadistic sexual offense or offenses; (5) “[t]he prisoner has a lengthy history of severe mental problems related to the offense”; and (6) “[t]he prisoner has engaged in serious misconduct in prison or jail.”
California Code of Regulations, title 15, section 2402, subdivision (d), lists circumstances tending to show suitability for parole. They include: (1) the prisoner has no juvenile record; (2) the prisoner has “reasonably stable relationships with others”; (3) the prisoner has shown signs of remorse, including “indicating that [the prisoner] understands the nature and magnitude of the offense”; (4) the life “crime [was] the result of significant stress in [the prisoner’s] life”; (5) the prisoner suffered from battered woman syndrome; (6) ”[t]he prisoner lacks any significant history of violent crime”; (7) the prisoner’s “present age reduces the probability of recidivism”; (8) the prisoner “has made realistic plans for release or has developed marketable skills that can be put to use upon release”; and (9) the prisoner’s “[i]nstitutional activities indicate an enhanced ability to function within the law upon release.”
“Regardless of the length of time served, 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).) Further, the Governor has the right to review any parole decision with respect to an inmate serving an indeterminate term for murder. (Cal. Const., art. V, § 8, subd. (b).) “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.” (Ibid.) The Governor may, however, be more stringent or cautious than the Board in determining whether an inmate poses an unreasonable risk to public safety. (Lawrence, supra, 44 Cal.4th at p. 1204.)
The Governor’s decision is subject to judicial review to ensure it is supported by “some evidence.” (In re Rosenkrantz (2002) 29 Cal.4th 616, 664 [“due process of law requires that [the Governor’s parole] decision … be supported by some evidence in the record”].) “[T]he relevant inquiry is whether some evidence supports the decision … 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.) “‘[T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor.… 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.’” (Id. at p. 1204.)
Since the trial court based its decision on documentary evidence without holding an evidentiary hearing, we review the record de novo to determine whether the writ was properly granted. (In re Rosenkrantz, supra, 29 Cal.4th at p. 677.)
As discussed above, the Governor reversed the Board’s parole decision based on the nature of the commitment offense; Hoskings’s lack of insight and failure to accept full responsibility for his action; and concerns raised in a psychological evaluation. In addition, the Governor cited Hoskings’s discipline history. We conclude there is some evidence to support the Governor’s decision.
First, Hoskings’s explanations regarding the circumstances of the murder vary over time and are inconsistent with the facts in the record. Although he never denied that he actually shot the victim, he claims that Denton also shot the victim and that Crull and Denton asked or encouraged him to kill the victim. There is nothing in the record to support this version of events. This is some evidence upon which the Governor could rely to conclude that Hoskings lacks insight into his role in the murder; that he is minimizing his role in the crime by sharing the blame with others; and that he remains a threat to public safety. (In re Shaputis (2008) 44 Cal.4th 1241, 1260)
Next, the Governor shared Dr. Wilkinson’s concern about the holding-cell incident. When this issue was raised in the parole hearing, Hoskings initially responded, “I didn’t understand her issue.” He then explained that he was “a little agitated” from having to wait for an hour in the “cage” with people coming and going and making a lot of noise. While the Board and the trial court were apparently satisfied with Hoskings’s explanation, the Governor was still concerned about this incident. This was within his discretion. (Lawrence, supra, 44 Cal.4th at p. 1204 [Governor has discretion to be more stringent and cautious than Board].) This incident provides some evidence supporting the Governor’s decision.
Further, the Governor noted that Hoskings had been disciplined in 1995 for threatening another inmate, which also contributes to our determination that some evidence supports his decision. (In re Hare (2010) 189 Cal.App.4th 1278, 1294-1295.)
Hoskings has asked us to take judicial notice of documents that were not considered by the Board in 2009 or the Governor in 2010. We agree with the Attorney General that these documents are not relevant to our review and decline to take judicial notice of them.
DISPOSITION
The judgment is reversed.
Hoskings’s request for judicial notice is denied.
WE CONCUR: Hill, P.J., Detjen, J.