Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 160861.
Mihara, J.
The Board of Parole Hearings (Board) granted parole to respondent Roderick McConnell. After the Governor reversed the Board’s decision, McConnell brought a petition for writ of habeas corpus, which the superior court granted. Appellant Warden challenges the superior court’s order. We conclude that the Governor’s decision was not supported by some evidence. Accordingly, we affirm the superior court’s order.
I. Factual Background
The summary of the offenses is taken from the probation officer’s report, which contains both a general summary and McConnell’s statement to the probation officer.
In July 1992, McConnell murdered 22-year-old Bryan Howell. After learning that Howell would be returning a car to a local crack house, McConnell, who was armed with both a baseball bat and a gun, went to that location. While waiting for Howell, McConnell paced around the house and told others that he was going to hit Howell in the head with the bat. When Howell arrived, McConnell approached him from behind and hit him twice on the head with the bat. After Howell tried to run for the door, McConnell pulled out his gun and told him to stop. Howell ran and McConnell shot him. When Howell took a step towards McConnell, he again shot Howell, who fell to the floor.
McConnell told the probation officer that Howell was his friend and his wife’s cousin. McConnell believed that Howell had told McConnell’s wife that McConnell had fathered twins with another woman. McConnell told his wife that he had not been unfaithful to her, but she refused to believe him and wanted him to move out. When McConnell spoke to Howell on the phone, he denied being the source of the information. However, McConnell believed that Howell was lying. Since his wife treated him “very cold and paid him no attention, ” McConnell decided to confront Howell personally. McConnell brought the baseball bat “in case things got violent, ” and he always carried a gun in his waistband because he was in the drug trafficking business. When Howell arrived, McConnell “lost control of his temper... [and] began swinging the bat at the victim.” McConnell hit him twice with the bat. “The victim then got up and acted as if he was going to leave and then spun around and attacked the defendant, knocking him down in the process.” McConnell pulled out his gun and told Howell to stand still. However, after Howell charged him, McConnell shot him in the torso. When Howell kept coming, McConnell shot him again and fled. McConnell turned himself in later the same day.
B. McConnell’s Prior History
McConnell’s parents divorced when he was approximately six years old. He then had little contact with his father. After his close friend was murdered, McConnell began to get into trouble. He dropped out of high school in the 11th grade and began selling drugs. He did not consider himself a “big time” drug dealer. He had no juvenile criminal record and was never involved in gang activity. As an adult, he was granted diversion on a charge of possession of cocaine. He was also arrested on an outstanding warrant for driving with a revoked or suspended license.
McConnell began smoking marijuana when he was 12 years old and began drinking alcohol in his late teens. He admitted that he smoked marijuana and drank alcohol on the day of the offense. McConnell stopped using both marijuana and alcohol when he was incarcerated, despite the availability of both drugs and alcohol in prison.
McConnell was divorced while in prison and he no longer had contact with either his former wife or his daughter.
C. McConnell’s Postincarceration Record
McConnell eventually pleaded guilty to second degree murder (Pen. Code, § 187) and assault with a deadly weapon (Pen. Code, §245, subd. (a)(1)), and admitted that he personally used a firearm in the commitment of the offense (Pen. Code, § 12022.5, subd. (b)). He was sentenced to an indeterminate term of 20 years to life.
McConnell’s life term began in August 1995, and his minimum parole date was in July 2005. McConnell obtained his GED in May 2006, and was taking courses at Coastline Community College, where he was on the honor list in spring 2008. He also earned his Carpentry II certificate. In prison, McConnell worked as a chaplain’s clerk, a library clerk, and a production assistant in the media center, and received exceptional and above average work reports. He also worked in “culinary and vocational janitorial, ” and received satisfactory work reports. McConnell completed a parenting class and six courses involving anger management and coping skills. He also participated in Alcoholics Anonymous, Criminal and Gang Members Anonymous, and Narcotics Anonymous as well as a substance abuse program. In addition, McConnell served as a facilitator in the motivational development group.
McConnell received a “115” prison misconduct citation in October 2005 for disobeying a direct order, that is, he continued taking a shower when he was not allowed to do so. According to McConnell, the prisoners “were on a lockdown situation, ” but his religion required him to bathe. He acknowledged that it “wasn’t the wisest thing to do, ” and he accepted responsibility for his conduct. McConnell also received five “128” prison misconduct citations during his incarceration. Three of these incidents involved his failure to report to an assignment. In November 2007, he failed to report to his “priority ducat.” McConnell explained that “they had recalled the yard early for some reason. And I was in doubt as to whether they wanted to do the next unlock. It’s just -- it was just one of those things that happened. I needed to go to the dentist and I wanted to go. But, I missed my chance.” In 1999, McConnell did not like his job in the kitchen and was not feeling well, so he told an officer that he was not going to work. In the same year, he failed to report to close custody count because he forgot.
“[A] CDC 115 documents misconduct believed to be a violation of law which is not minor in nature. A form 128 documents incidents of minor misconduct.” (In re Gray (2007) 151 Cal.App.4th 379, 389.)
D. Psychological Evaluations
The 2008 psychological evaluation by Dr. Arona Luckerman summarized previous evaluations. In 1998, Dr. Stotland diagnosed McConnell with Axis I adjustment disorder with mixed anxiety, depressed mood, and adult antisocial behavior as well as Axis II alcohol dependence in remission. Dr. Stotland recommended that McConnell participate in Alcoholics Anonymous, continue with his education, and obtain additional work skills. In 2004, Dr. Walker diagnosed McConnell with Axis I alcohol abuse by history and adult antisocial behavior (drug sales/ lifestyle). Though Dr. Walker gave no Axis II diagnosis, it was noted that McConnell had antisocial traits and depressive features. Dr. Walker also concluded that McConnell presented “ ‘a moderately low risk for future violence.’ ”
In 2008, Dr. Luckerman diagnosed McConnell with Axis I alcohol abuse by history since he reported that he got drunk at least twice a week beginning when he was 17 years old until he was incarcerated. He was also diagnosed with Axis II personality disorder not otherwise specified with antisocial traits by history. It was further noted that McConnell did not meet the “full criteria for Antisocial Personality Disorder[, but] he demonstrated features that have caused clinically significant distress. He had shown impulsivity, failure to conform to societal norms, and reckless disregard for the safety of others. These personality characteristics appear to be pervasive and enduring across a range of situations and have led to significant distress and impairment in several areas of life.” The evaluation concluded that McConnell posed a “low risk to recidivate in a violent manner.”
E. July 2009 Parole Hearing
McConnell had been given a two-year denial at his parole hearing in July 2008. However, the two-year denial was reduced to one year after the superior court ordered a new hearing. At the time of the July 2009 parole hearing, McConnell was 40 years old. McConnell expressed great remorse for his conduct, and stated that he had been clean and sober since his arrest. He submitted various letters on his behalf at the hearing. Dr. J. Jackman, a psychiatrist at Stanford University, stated that his correspondence with McConnell had expanded over the previous year, and that he would serve as a source of support when McConnell was released. P. Delgato-Reed, who was employed by Golden Hills Adult School, stated that McConnell had “shown respect and professionalism in the workplace [and] left a positive impression on supervisors and classmates.” He recommended McConnell as a “SAP member.” There were also letters from three inmates, who described McConnell in positive terms. In addition, there were four letters from McConnell’s family members indicating their support for him. His parole plans included living at Francisco Home in Los Angeles County and employment with the Office of Restorative Justice.
McConnell first began corresponding with Dr. Jackman in 2005.
The Board found McConnell suitable for parole. The Board was aware of the circumstances of the commitment offense, but was “unable to establish a nexus between this commitment offense and the person that [was] sitting before [it] today.” The Board noted that McConnell had no juvenile record, developed stable relationships in prison and the community, participated in education programs, including obtaining his GED and taking community college courses, engaged extensively in self-help programs, had shown remorse, lacked a significant history of violent crime, had family support and realistic parole plans, including relapse prevention plans, and maintained positive institutional behavior.
F. The Governor’s Decision
In December 2009, the Governor reversed the Board’s decision. Relying on the gravity of the offense, his failure to adequately address the causative factors of his life crime, his most recent mental health evaluation, and his inability or unwillingness to conform his conduct to rules, the Governor concluded that McConnell’s release from prison would create an unreasonable risk to public safety.
G. Superior Court Proceedings
In February 2010, McConnell filed a petition for writ of habeas corpus in the superior court. His petition asserted that the Governor’s decision was not supported by some evidence and failed to identify any nexus between the murder and his current risk to public safety. In March 2010, the superior court issued an order to show cause.
In August 2010, the superior court granted McConnell’s petition. It stated that the denial of parole “consists of nothing more than the Governor’s efforts to say everything bad about [McConnell] that can be said.” “If the statutory and constitutional availability of parole is to have any meaning, the test for its denial cannot be satisfied simply by the Governor’s ability to cast [McConnell] and his crime in the worst possible light.” The superior court criticized the inconsistencies in the Governor’s findings that McConnell’s crime was both “ ‘inexplicable’ ” and “ ‘very trivial’ ” and that it involved premeditation while relying on the district attorney’s statement that McConnell “ ‘flew into a rage.’ ” The superior court also found that the Governor inappropriately substituted his “lay” opinion regarding McConnell’s degree of current dangerousness for that of the psychologist who interviewed McConnell prior to his 2009 parole hearing. The superior court further noted that the Governor’s “disparagement of [McConnell’s] insight, remorse, acceptance of responsibility, or programming, is valid only in the sense that it is always possible for any person to improve himself.”
Appellant timely filed a notice of appeal and filed a petition for writ of supersedeas. In December 2010, this court issued a writ of supersedeas staying the superior court’s order pending resolution of this appeal.
III. Discussion
A. Standard of Review
In reviewing the Governor’s decision that reverses a Board decision finding a prisoner suitable for parole, “[d]ue process of law requires that this decision be supported by some evidence in the record. 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. As with the discretion exercised by the Board in making its decision, the precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor, but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious. It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole. As long as the Governor’s decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court’s review is limited to ascertaining whether there is some evidence in the record that supports the Governor’s decision.” (In re Rosenkrantz (2002) 29 Cal.4th 616, 676-677 (Rosenkrantz).)
B. Parole Suitability and Unsuitability Criteria
The general standard for a parole suitability decision is that “a life prisoner shall be found unsuitable for and denied parole if in the judgment of the [Board or the Governor] the prisoner will pose an unreasonable risk of danger to society if released from prison.” (Cal. Code Regs., tit. 15, § 2402, subd. (a) (Regs.).)
All further references to “Regs.” are to this title.
“[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).)” (Rosenkrantz, supra, 29 Cal.4th at pp. 653-654, fn. omitted.) An offense is considered “especially heinous, atrocious, or cruel” if it “was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering.” (Regs., § 2404, subd. (c)(1).)
“[C]ircumstances 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. (Cal. Code Regs., tit. 15, § 2404, subd. (d).)” (Rosenkrantz, supra, 29 Cal.4th at p. 654.)
In re Lawrence (2008) 44 Cal.4th 1181 recognized that “the core determination of ‘public safety’ under the statute and corresponding regulations involves an assessment of an inmate’s current dangerousness.” (Lawrence, at p. 1205.) Lawrence concluded 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 postincarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner’s dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.’ ” (Lawrence, at p. 1214.) Thus, “the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after the commission of the offense. This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate’s psychological or mental attitude.” (Lawrence, at p. 1221.) “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. (Regs., § 2281, subd. (a).)” (Lawrence, at p. 1221.)
C. Analysis
In reversing the Board’s decision, the Governor found that the commitment offense was “especially heinous because it involved some degree of premeditation.” There is some evidence to support this finding. Here, McConnell armed himself with a gun and a baseball bat, waited for the victim to return home, hit him on the back of the head, and then shot him. However, the aggravated nature of the crime cannot in and of itself support a denial of parole. (Lawrence, supra, 44 Cal.4th at p. 1214.) “[T]he relevant inquiry... 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 considered in light of the full record before the Board or the Governor.” (Lawrence, at p. 1221.) There must be a “rational nexus” between the evidence relied on and the inmate’s current dangerousness. (Lawrence, at p. 1210.) Appellant argues that “McConnell’s inadequate participation in self-help activities, his most recent psychological exam, and his numerous and recent rule violation reports” are “evidence that McConnell’s commitment offense was still relevant to his current degree of dangerousness.” Thus, appellant contends that some evidence supports the Governor’s decision to deny McConnell parole. We disagree.
The Governor also relied on the prosecutor’s statement that the murder was “ ‘the result of a monumental homicidal rage.’ ” But this characterization of the murder is inconsistent with a finding of premeditation. A killing which is the result of a “homicidal rage” is not premeditated. (See CALCRIM No. 5.21 [“A decision to kill made rashly, impulsively, or without careful consideration is not deliberate or premeditated.”]; see also People v. Werner (1952) 111 Cal.App.2d 264, 271 [Most cases that properly reduced convictions from first to second degree murder involved “evidence of some situation, arising from excessive drinking or a violent quarrel, indicating that the crime was committed in a sudden fit of rage.”].)
The Governor found that McConnell had made only “minimal efforts to understand and address the causative factors of his life offense, ” thus indicating that “he has not yet developed the requisite tools to succeed on parole and that he remains a danger to the public if released at this time.” Noting that the “Board appeared satisfied with McConnell’s statement that he committed the crime due to grief and fear of losing his family, ” the Governor stated his belief that McConnell committed the murder because “he lacked anger management and coping skills to deal with life’s stressors.” The Governor further stated that McConnell had “availed himself of very few self-help programs designed to address anger management or coping skills during his incarceration. The majority of McConnell’s participation in self-help programs took place between 2006 and 2007. Then, between the 2008 and 2009 parole consideration hearings, he failed to complete any additional self-help programs, despite an admonishment from the 2008 Board that he seek ‘therapy.’ ”
Appellant claims that the Governor was “referring to self-help in the area of anger management, rather than self-help in general” in his statement that McConnell failed to complete any self-help programs between 2008 and 2009. There is no merit to this claim. The Governor himself defined self-help programs as those “designed to address anger management or coping skills.”
“‘“[L]ack of insight” is probative of unsuitability only to the extent that it is both (1) demonstrably shown by the record and (2) rationally indicative of the inmate’s current dangerousness.’ [Citation.]” (In re Powell (2010) 188 Cal.App.4th 1530, 1542.)
Here, the record establishes that McConnell has consistently accepted full responsibility for the murder and has been involved extensively in anger management and coping skills programs to develop his understanding and insight into the causative factors concerning the life crime. In June 2004, McConnell’s participation as a facilitator in a motivational development group for four years was recognized. McConnell participated as a volunteer in anger management in January 2005. He took courses in anger management, copings skills, responsible living, thinking errors, self-worth, and relationship communication in May 2005. He has participated consistently in Alcoholics Anonymous since March 2005 and in Criminal and Gang Members Anonymous since May 2006. As the Board noted, Criminal and Gang Members Anonymous involves “self-help and also anger management.” In May 2006, he obtained his GED. In June 2007, he took courses in the Con Game and citizenship. McConnell’s habeas corpus petition stated that he has “continued to attend Alcoholics Anonymous, Narcotics Anonymous, and Criminals and Gang Member’s Anonymous, ” and he provided certificates of his participation in Alcoholics Anonymous and Narcotics Anonymous in 2008 and 2009. McConnell’s educational pursuits and participation in self-help programs were designed to provide him with the “skills to cope with life’s stressors.” Thus, the record refutes the Governor’s claim that McConnell participated in “very few” self-help programs involving anger management or coping skills prior to 2008 and no such programs between 2008 and 2009.
Though the 2009 parole hearing transcript does not include the dates on which McConnell participated in self-help programs, a chronology by year is included in the 2008 parole hearing transcript.
The Governor also relied on the 2008 Board’s recommendation that McConnell seek therapy. However, the 2008 psychological evaluation stated that therapy was not available to McConnell because he had no mental health issues and he was not a candidate for therapeutic intervention. Though Dr. Luckerman encouraged McConnell to be involved in self-help programs, she did not consider it mandatory. Moreover, there is nothing in the record indicating that McConnell became eligible for therapy following the 2008 parole hearing. Thus, absent any evidence that McConnell was eligible for therapy due to mental health issues, his failure to participate in therapy cannot constitute some evidence of current dangerousness.
The Governor next relied on McConnell’s most recent psychological evaluation to support his conclusion that McConnell was presently dangerous. He asserted that McConnell suffered from “ ‘chronic mental health symptoms, ’ specifically alcohol abuse and a personality disorder with antisocial traits.” He also focused on Dr. Luckerman’s comment that McConnell “had shown impulsivity, failure to conform to societal norms, and reckless disregard for the safety of other[s]. These personality characteristics appear to be pervasive and enduring across a range of situations and have led to significant distress and impairment in several areas of his life.”
However, the Governor took these comments out of context. Dr. Luckerman based the diagnosis of alcohol abuse on McConnell’s self-report and history. Dr. Luckerman also noted that McConnell did not meet all of the criteria for a diagnosis of antisocial personality disorder and the criteria which he did meet for this disorder were based on his history. Thus, the Governor overlooked that Dr. Luckerman’s diagnosis and comments referred to the period prior to his incarceration. The Governor also ignored Dr. Luckerman’s conclusion that McConnell did not need mental health treatment and that he posed “a low risk to recidivate in a violent manner.” In reaching this conclusion, Dr. Luckerman relied on the following: McConnell did “not have a violent past other than his life offense”; “[h]e has accomplished the educational and vocational goals set forth by the [Board], and he has channeled his energy into self-help groups”; and he “has been disciplinary free now for over two years [as of February 2008] and prior to when he received his CDC 115 (October 2005), he had been without an infraction for over 11 years.” Noting that McConnell had a significant history of substance abuse, including using alcohol and marijuana on the day of the murder, Dr. Luckerman also stated that McConnell “has participated in AA/NA on a consistent basis and has reportedly remained drug and alcohol free since his incarceration..., has acknowledged the importance of participation in the AA/NA programs while incarcerated..., [and] his parole plan includes transitioning into a sober-living type environment, which would be appropriate given his past criminal lifestyle predicated on selling drugs and his history of alcohol abuse.” Thus, McConnell’s most recent psychological evaluation did not support the Governor’s decision.
In connection with his concerns about McConnell’s mental health, the Governor also relied on the 2008 Board’s expression of “concern over McConnell’s behavior during the 2008 [parole] hearing, stating ‘You became emotional when you were talking about [the murder] and you began to shake....’ ” However, the record does not establish that McConnell was talking about the murder when he began to shake. The only reference to possible shaking by McConnell during the hearing occurred immediately after Presiding Commissioner Biggers summarized McConnell’s prior criminal record. Biggers asked: “Are you nervous? Or are you just cold?” McConnell replied that he was nervous. Thus, this evidence does not indicate that McConnell posed a current danger to public safety.
The Governor next cited McConnell’s disciplinary violations as evidence that he was “not yet ready to conform his conduct within society’s laws and comply with the conditions of parole.”
“[S]erious misconduct in prison” is a circumstance tending to show unsuitability for parole. (Regs., § 2402, subd. (c)(6).) Though minor misconduct is not an enumerated unsuitability factor, it may also be considered in determining suitability for parole. (In re Reed (2009) 171 Cal.App.4th 1071, 1084 (Reed).) Reed affirmed the Board’s denial of parole based on the prisoner’s recent receipt of a counseling chrono. During Reed’s 20 years of incarceration, he had been disciplined 11 times for serious misconduct and counseled 19 times for minor misconduct. (Reed, at p. 1079.) At his 2005 parole hearing, the Board specifically cautioned him that he had to “ ‘remain disciplinary free, not even a 128.’ ” (Reed, at p. 1084.) Shortly thereafter, Reed received another counseling chrono, and the Board relied on that instance of minor misconduct to deny parole at his 2006 parole hearing. (Reed, at p. 1085.)
“In prison argot, ‘counseling chronos’ document ‘minor misconduct, ’ not discipline.... [Citation.].)” (In re Smith (2003) 109 Cal.App.4th 489, 505.)
Denying Reed’s petition for writ of habeas corpus, the Court of Appeal reasoned that his “inability to follow an express direction to comply with the rules of the institution” provided “some current evidence” that, when released, Reed would be unable to follow society’s laws. (Reed, supra, 171 Cal.App.4th at p. 1085.) “First, the misconduct violated a specific directive from the Board, given only two months before. Second, it occurred close in time to the Board’s decision in 2006 to deny parole; that is, the incident was not stale. Finally, it was not an isolated incident; instead, it was part of an extensive history of institutional misconduct, including 11 CDC 115’s and 19 CDC 128-A’s.” (Reed, at p. 1085.)
Here, in contrast to Reed, there was no violation of a specific Board directive to remain discipline free. McConnell’s misconduct, which involved bathing for religious reasons when ordered not to do so, was not recent since it had occurred four years before the 2009 parole hearing. It involved no violence or even threat of violence. In contrast to Reed’s significant disciplinary history, McConnell has received five counseling chronos for minor and nonviolent conduct. Thus, appellant’s reliance on Reed is misplaced.
Appellant also relies on In re Hare (2010) 189 Cal.App.4th 1278 (Hare) in which the Governor reversed the Board’s decision to grant parole. While incarcerated, Hare received three serious misconduct violations - two for damaging or destroying state property and one for possession of dangerous contraband, that is, an altered toothbrush. (Hare, at p. 1283.) The Governor found the crime, in which Hare shot his drug dealer, especially atrocious, and “explained the steps Hare took to cover up the crime and the fact he fled the state while released on bail and lived under a false identity in Washington for three years ‘indicate[] to me that Mr. Hare is a person who tries to avoid responsibility for his crime and takes elaborate steps to hide the truth.’ ” (Hare, at p. 1285.) The Governor then found that Hare’s “ ‘inclination to hide the truth and avoid responsibility’ ” occurred again when he gave different explanations regarding why he had altered the toothbrush. (Hare, at pp. 1285-1286.) Concluding that the record supported the Governor’s implied finding that Hare possessed the altered toothbrush as a weapon or was in the process of making a weapon, the Court of Appeal held that Hare’s misconduct supported “the Governor’s conclusion that the circumstances of the commitment offense continue to be predictive of current dangerousness....” (Hare, at pp. 1294-1295.) Hare is inapposite. McConnell’s failure to stop bathing when ordered to do so had no relationship to the commitment offense and did not involve a weapon.
Lawrence is more similar to the present case. In Lawrence, the Governor’s reversal of the Board’s grant of parole noted that “ ‘[s]ince her incarceration, while [petitioner] has been counseled eight times for misconduct, including as recently as 2005 [the same year the Board granted her parole], she has avoided any disciplinary actions.’ ” (Lawrence, supra, 44 Cal.4th at p. 1224.) Lawrence stated that it was unclear whether the Governor has relied on her minor misconduct to justify his reversal of the Board’s decision, “but in any event the record indicates that petitioner was counseled when she was late to class or other appointment. Nothing in the record supports a conclusion that petitioner poses a threat to public safety because she was occasionally late to appointments or job assignments during her almost 24 years of incarceration.” (Lawrence, at p. 1224.) Similarly, here, that McConnell’s failure to stop bathing in 2005 and his failure to report to an appointment or job on three occasions during 17 years of incarceration is not some evidence that he poses a current danger to society.
Appellant also asserts that “McConnell stated at his 2008 parole hearing that if he wants to do something, he will sometimes ‘just... do it, ’ despite the potential disciplinary consequences.” However, appellant has taken McConnell’s statement out of context. At the 2008 hearing, McConnell acknowledged that he had failed to report to two assignments, explaining that he forgot on one occasion, and that he did not like the kitchen assignment and would not work that type of job if he were to be released on parole. He then stated: “But, that’s not my general disposition all the time. These are things that have occurred over my incarceration period, you know. So, just those few little moments, that doesn’t define who I am and what type of person I am.” Thus, the record does not support the claim that McConnell tends to take a particular course of action despite any negative consequences.
Since we conclude that the Governor’s reversal of the Board’s parole grant is not supported by some evidence, it cannot be upheld. Appellant contends that this court should afford the Governor another opportunity to evaluate McConnell’s suitability for parole. We disagree.
Appellant cites no new evidence or any other basis for upholding the Governor’s reversal of the Board’s decision. We have previously rejected the contention that a remand to the Governor is appropriate under such circumstances, explaining that since we had reviewed the materials the Board had before it and found no evidence to support a decision other than the one the Board reached, a remand to the Governor would amount to an idle act. (In re Dannenberg (2009) 173 Cal.App.4th 237, 256-257 (Dannenberg).) Other California Courts of Appeal have reached the same conclusion. (See, e.g., In re Vasquez (2009) 170 Cal.App.4th 370, 386 [“Our review indicates that the record does not contain some evidence to support the Governor’s decision and further consideration by the Governor will not change that fact”]; In re Aguilar (2008) 168 Cal.App.4th 1479, 1491.) The proper remedy in such cases “is to vacate the Governor’s decision and to reinstate that of the Board.” (In re Burdan (2008) 169 Cal.App.4th 18, 39, citing Lawrence, supra, 44 Cal.4th at pp. 1190, 1229.)
Appellant urges this court to reconsider Dannenberg in light of the California Supreme Court’s decision in In re Prather (2010) 50 Cal.4th 238 (Prather). He contends Prather supports his argument that the superior court’s order violated the separation-of-powers doctrine. Appellant’s reliance on Prather is misplaced. In that case, the court addressed what action a reviewing court that has granted a prisoner’s habeas corpus petition can direct the Board to take. (Prather, at p. 243.) The court concluded that “it is improper for a reviewing court to direct the Board to reach a particular result or to consider only a limited category of evidence in making a suitability determination.” (Prather, at p. 253, italics added.) “A reviewing court may not—consistent with the principles embodied in the separation-of-powers doctrine—impair the exercise of [the Board’s] discretion by placing improper limits upon the Board’s review of a prisoner’s record.” (Prather, at pp. 256-257.)
Here, unlike in Prather, this court is not directing the Board to do anything. Instead, “we reinstate an earlier executive branch decision—made by the Board—overturning only the ‘veto’ of that decision by the Governor. [Citation.] The power of the executive branch is, in this instance, not infringed, but respected.” (In re McDonald (2010) 189 Cal.App.4th 1008, 1024; accord, In re Gomez (2010) 190 Cal.App.4th 1291, 1310-1311.)
Appellant also relies on In re Ross (2009) 170 Cal.App.4th 1490 (Ross) in which a prisoner challenged the Governor’s decision to reverse the Board’s grant of parole. However, Ross does not advance the Warden’s position. In that case, the superior court denied the prisoner’s habeas corpus petition, finding some evidence in the record to support the Governor’s decision. The prisoner then sought a writ of habeas corpus in the Court of Appeal and, while that petition was pending, the California Supreme Court decided Lawrence and Shaputis. Applying the standard newly articulated in Lawrence, the Court of Appeal agreed with the trial court that the Governor’s decision to reverse the Board’s grant of parole was supported by some evidence in the record. (Ross, at p. 1510.) The Court of Appeal concluded, however, that the Governor’s “written decision [was] flawed because it [did] not contain a more explicit ‘articulation of a rational nexus between th[e] facts and current dangerousness.’ ” (Ross, at p. 1513, quoting Lawrence, supra, 44 Cal.4th at p. 1227.) “We cannot fault the Governor for not being more specific, ” the court explained, “[b]ecause Lawrence requires more of an explanation than did... the controlling law when the Governor made the parole decision in this case.” (Ross, at p. 1497.) The court concluded that the appropriate disposition was a remand to the Governor “for further proceedings consistent with the standards articulated in Lawrence ....” (Ross, at pp. 1498, 1515.)
In contrast to Ross, the present case involves an entirely different situation. The standard articulated in Lawrence is no longer new, and unlike in Ross, there is no evidence to support the Governor’s decision. Here, a remand to the Governor would amount to an idle act. (Dannenberg, supra, 173 Cal.App.4th at pp. 256-257.)
III. Disposition
The superior court’s order is affirmed.
WE CONCUR: Elia, Acting P. J., Grover, J.
Judge of the Superior Court of Monterey County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.