Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 58303
Premo, J.
After Governor Schwarzenegger reversed the Board of Parole Hearings’ (Board) decision granting parole to Emery Miller, Miller petitioned the superior court for a writ of habeas corpus. The superior court granted Miller’s petition and remanded the matter to the Governor for review. Ben Curry, Warden at the Correctional Training Facility in Soledad, timely appealed, and we stayed the superior court’s order pending appeal.
Pursuant to Penal Code section 1477, the warden of the institution where the inmate is currently incarcerated is the proper respondent in habeas proceedings. Since the underlying petition involves a decision by the Governor, however, all future references in this opinion are to the Governor, rather than the warden.
Before any of the appellate briefs were filed in this matter, the California Supreme Court issued two decisions: In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis); relevant to the issues presented in the instant appeal. Those decisions were fully briefed by the parties.
For the reasons stated below, we conclude that the Governor should conduct a new review of the Board’s parole decision. We will therefore remand the matter to the superior court with directions to modify its order granting Miller’s habeas corpus petition. The order shall be modified to direct the Governor to vacate his June 20, 2006 parole decision and invite him to conduct a new review of the Board’s decision in light of Lawrence and Shaputis. We will affirm the order as modified.
I. Factual and Procedural Background
A. The commitment offense
The facts underlying the commitment offense, which took place on June 9, 1974, are not in dispute. As set forth in the Governor’s decision, “at approximately 2:00 a.m. Mr. Miller was leaving a house party when he overheard his friend, Lawrence Rosette, and a neighbor, Mr. [Raymond] McVea, argue about the noise level of Mr. Rosette’s party. Mr. McVea walked outside his home to ask the partygoers to quiet down and threatened to call the police. Mr. Miller, who subsequently joined the argument, told Mr. McVea that he would not be calling the police. He then struck Mr. McVea with his fist, knocking him to the ground. While Mr. McVea was sprawled on the ground, Mr. Miller and Mr. Rosette continued to attack Mr. McVea, viciously beating and kicking him. Mr. McVea’s daughter, who was standing nearby, ran into her house to call the police. Mr. McVea was transported to the hospital in critical condition, and doctors performed an emergency tracheotomy to allow him to breathe. According to the sentencing court’s transcript, Mr. McVea’s head was ‘crushed’ and he suffered a lacerated penis. A doctor’s examination revealed that Mr. McVea suffered fractures of the skull and jaw, a laceration of the scalp, multiple contusions, massive blood loss, and possibly brain damage. Mr. McVea died hours later from his injuries.”
B. Procedural background
Miller was arrested, tried as an adult and convicted by a jury of first degree murder (Pen. Code, § 187). He was sentenced to an indeterminate term of seven years to life. From 1980 to the present, Miller has had 21 parole hearings, the most recent on January 31, 2006.
Miller was 17 years old at the time of the offense.
i. The Board hearing and decision
Following the January 31, 2006 hearing, the Board issued its parole decision finding that Miller was suitable for parole. We summarize the evidence considered at the hearing below.
The Board also considered the facts of the commitment offense, as described ante at page 2. In the interests of brevity, we will not repeat those facts.
a. Social history, criminal record, parole plans
Miller was born on May 12, 1957, and is the sixth of eight children. His parents remained married until they both died in 1988, and Miller described their relationship and his family life as positive, loving, and caring. When Miller was 13 years old, one of his older brothers, while committing a robbery, was shot and killed by police. He has maintained contact with his remaining family members by telephone, letters and frequent visits. Miller has been married and divorced twice; the first marriage lasted approximately three years, from 1978 to 1981, and the second lasted approximately nine years, from 1994 to 2003. He has no children of his own.
Miller completed the ninth grade, but left school after being arrested for robbery and carrying a concealed firearm. Miller never served in the military and has no history of drug or alcohol problems, though he admitted to drinking socially.
Miller had a lengthy juvenile record at the time of his arrest, with adjudications for burglary, curfew violation, armed robbery, battery, carrying a concealed firearm and two separate escapes from a juvenile detention facility.
If paroled, Miller had a job offer from a plumbing company, and two of his brothers offered to let him live with them upon his release.
b. Institutional behavior
During his incarceration, Miller had seven reports of minor counseling incidents (CDC 128s). The most recent of these was in 1990. However, he had 23 reports of more serious misconduct (CDC 115), including two reports for “force and violence” in 1978; 14 reports for unspecified “conduct,” disobeying orders, “respect toward officials” or destruction of state property; five reports for contraband, including possession of marijuana/hashish; and one report for “sexual behavior.” Miller’s latest 115 was issued in September 1996 for “deceiving staff for personal gain.”
Form 128-A, a “Custodial Counseling Chrono,” documents incidents of minor inmate misconduct and the counseling provided. (Cal. Code Regs., tit. 15, § 3312, subd. (a)(2).) Misconduct that is believed to be a violation of law or is not minor in nature is reported on CDC Form 115, a Rules Violation Report. (Id., subd. (a)(3).) Hereafter, all undesignated section references and all further references to regulations are to title 15 of the California Code of Regulations.
Miller earned his GED in 1982 and completed vocational training courses in “mill and cabinet” and horticulture. Over the years, Miller has had numerous work assignments including cook, gym attendant, culinary worker, industries worker, inmate day labor, vocational bakery, clothing distribution, mechanical maintenance, carpentry and electrical shops. He has received many laudatory chronos in those various work assignments.
Miller also completed a number of self-help courses, including a 13 week victim’s awareness program, the Victims/Offenders Learning Together (VOLT) program, the Vital Issues Project, Square One (NA), Breaking Barriers, and Prevailers Fellowship. He started going to Narcotics Anonymous in 1991 and, at the time of the 2006 parole hearing, was still attending meetings.
c. Psychological evaluation
At Miller’s 2006 hearing, the Board reviewed an updated psychological evaluation, dated April 15, 2005, but indicated that its new policy was not to take into account any psychological assessment of dangerousness. The April 15, 2005 report noted that Miller had no mental health, alcohol or drug issues at the time, and “appeared genuinely remorseful for the crime that was committed, and seemed to regret the behaviors that resulted in his incarceration.”
ii. The Governor’s decision
In his decision dated June 20, 2006, the Governor reversed the Board’s decision to grant Miller release on parole. The Governor concluded that Miller’s release from prison would “pose an unreasonable risk of danger to society at this time,” based on the circumstances of the commitment offense, his juvenile record, his history of prison discipline, and the opposition expressed by the San Jose Police Department and the Santa Clara County District Attorney’s Office.
Regarding the commitment offense, the Governor stated that “the first-degree murder of which [Miller] was convicted was an especially cruel and atrocious one because Mr. McVea was viciously beaten and kicked to death over something as trivial as an argument about the noise level at a neighbor’s party.... As [Mr. McVea] lay sprawled on the ground, according to the Statement by the Judge and District Attorney, Mr. McVea’s wife and daughter looked on as Mr. Miller and Mr. Rosette ‘stomped... [Mr. McVea] until his head was like jello and his penis was split open.’ Mr. Miller, according to the probation report, then fled the scene, leaving Mr. McVea barely breathing, with a lacerated penis, and multiple contusions and massive blood loss. Mr. McVea was transported to a hospital and survived for several hours before finally succumbing to his severe injuries. The nature and circumstances of the first-degree murder [perpetrated] by Mr. Miller would alone be sufficient for me to conclude that his release from prison would presently pose an unreasonable risk to public-safety [sic].”
With respect to Miller’s juvenile record and history of prison discipline, the Governor stated, “When he perpetrated this crime, Mr. Miller was 17-years-old and had already incurred an extensive juvenile record, including adjudications for burglary, firearm possession, armed robbery, and escape from juvenile detention facilities. Since his incarceration for Mr. McVea’s murder, Mr. Miller has been disciplined twenty three times for rules violations, including marijuana possession, force and violence, destruction of state property, disobeying direct orders, sexual behavior, and possession of weapons stock, in addition to many others. Mr. Miller was also counseled seven times for minor misconduct.” The Governor accordingly determined that Miller’s “continued inability or willingness to live within the rules of his environment as an adult--particularly given the assaultive and violent nature of some of his conduct--weighs heavily against his parole suitability.”
The Governor recognized that Miller had been discipline-free since 1996 and had “made other significant gains to enhance his ability to function within the law upon release,” citing his programming, prison work history, laudatory chronos and realistic parole plans. He also noted that Miller was 49 years old, had been incarcerated for more than 32 years and says he “accepts responsibility and is remorseful for Mr. McVea’s murder.” Despite this, the Governor concluded, “after carefully considering the very same factors the Board must consider,” the “especially grave crime, coupled with [Miller’s] history of violent behavior, which continued even after he was incarcerated..., are factors that presently outweigh the positive factors tending to support his parole suitability.”
iii. Habeas proceedings
On June 12, 2007, Miller filed a petition for writ of habeas corpus in the Santa Clara County Superior Court. The superior court issued an order to show cause on the petition, pursuant to which the Attorney General filed a return and Miller filed a traverse. On April 14, 2008, the superior court granted the petition and ordered that the Governor conduct a new parole review. In its order, the superior court directed the Governor to “thoughtfully consider and articulate the nexus between the 32 year old circumstances of the crime and its present predictive value on the issue of public safety in light of the fact that [Miller] was a juvenile at the time of the crime.”
II. Discussion
A. The statutory and regulatory framework for parole hearings
“The applicable statutes provide that the Board is the administrative agency within the executive branch that generally is authorized to grant parole and set release dates. ([Pen. Code,] §§ 3040, 5075 et seq.) The Board’s parole decisions are governed by [Penal Code] section 3041 and title 15, section 2281 of the California Code of Regulations (Regs., § 2230 et seq.). Pursuant to statute, the Board ‘shall normally set a parole release date’ one year prior to the inmate’s minimum eligible parole release date, and shall set the date ‘in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public....’ ([Pen. Code,] § 3041, subd. (a), italics added.)” (Lawrence, supra, 44 Cal.4th at pp. 1201-1202, fn. omitted.) “ ‘Accordingly, parole applicants in this state have an expectation that they will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation.’ ” (Shaputis, supra, 44 Cal.4th at p. 1258.)
Where, as here, the commitment offense of murder took place prior to November 8, 1978, Regulations section 2281 governs parole suitability, while Regulations section 2402 “provides parole consideration criteria and guidelines for murders committed on or after November 8, 1978. The two sections are identical.” (Lawrence, supra, 44 Cal.4th at pp. 1201-1202, fn. 5.)
“Subdivision (b) of [Penal Code] section 3041 provides that a release date must be set ‘unless [the Board] determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.’ ” (Lawrence, supra, 44 Cal.4th at p. 1202, italics omitted.) “Title 15, Section 2281 of the California Code of Regulations sets forth the factors to be considered by the Board in carrying out the mandate of the statute. The regulation is designed to guide the Board’s assessment of whether the inmate poses ‘an unreasonable risk of danger to society if released from prison,’ and thus whether he or she is suitable for parole. (Regs., § 2281, subd. (a).)” (Ibid.)
In determining whether the prisoner is suitable for release, the Board considers the circumstances which tend to show that particular inmate’s unsuitability for parole as well as the circumstances which tend to show the inmate’s suitability for parole. Circumstances tending to show unsuitability include the following: the inmate committed the offense in “an especially heinous, atrocious or cruel manner”; the inmate possesses a previous record of violence; the inmate has an unstable social history; the inmate has previously sexually assaulted another individual in a sadistic manner; the inmate has a lengthy history of severe mental problems related to the offense; and the inmate has engaged in serious misconduct while in prison. (Regs., § 2281, subd. (c)(1)-(6).)
The “[f]actors that support a finding that the prisoner committed the offense in an especially heinous, atrocious, or cruel manner include the following: (A) multiple victims were attacked, injured, or killed in the same or separate incidents; (B) the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (C) the victim was abused, defiled, or mutilated during or after the offense; (D) the offense was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering; and (E) the motive for the crime is inexplicable or very trivial in relation to the offense.” (In re Rosenkrantz (2002) 29 Cal.4th 616, 653, fn. 11; Regs., § 2281, subd. (c)(1).)
Pertinent factors tending to demonstrate suitability for parole are, as follows: the lack of a criminal record or history of committing crimes as a juvenile; a stable social history; acts demonstrating that the prisoner “understands the nature and magnitude of the offense”; the inmate lacks any significant history of violent crime; the inmate has realistic plans for the future; and the inmate has participated in institutional activities that “indicate an enhanced ability to function within the law upon release.” (Regs., § 2281, subd. (d)(1)-(d)(3), (d)(6), (d)(8)-(d)(9).)
“Finally, the regulation explains that the foregoing circumstances ‘are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel.’ (Regs., § 2281, subds. (c), (d).)” (Lawrence, supra, 44 Cal.4th at p. 1203.)
B. The Governor’s review and decision
“The Governor’s power to review a decision of the Board is set forth in article V, section 8, subdivision (b) of the California Constitution.” (Lawrence, supra, 44 Cal.4th at p. 1203.) “The statutory procedures governing the Governor’s review of a parole decision pursuant to California Constitution article V, section 8, subdivision (b), are set forth in Penal Code section 3041.2.” (Id., at p. 1203, fn. 9.) Under this constitutional and statutory authority, the Governor’s parole decision must be based upon the same factors that govern the Board’s parole decision. (Shaputis, supra, 44 Cal.4th at p. 1258.)
The California Constitution, article V, section 8, subdivision (b) provides, “No decision of the parole authority of this state with respect to the granting, denial, revocation, or suspension of parole of a person sentenced to an indeterminate term upon conviction of murder shall become effective for a period of 30 days, during which the Governor may review the decision subject to procedures provided by statute. 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. The Governor shall report to the Legislature each parole decision affirmed, modified, or reversed, stating the pertinent facts and reasons for the action.”
Penal Code section 3041.2 provides, “(a) During the 30 days following the granting, denial, revocation, or suspension by a parole authority of the parole of a person sentenced to an indeterminate prison term based upon a conviction of murder, the Governor, when reviewing the authority’s decision pursuant to subdivision (b) of Section 8 of Article V of the Constitution, shall review materials provided by the parole authority. [¶] (b) If the Governor decides to reverse or modify a parole decision of a parole authority pursuant to subdivision (b) of Section 8 of Article V of the Constitution, he or she shall send a written statement to the inmate specifying the reasons for his or her decision.”
“Although ‘the Governor’s decision must be based upon the same factors that restrict the Board in rendering its parole decision’ [citation], the Governor undertakes an independent, de novo review of the inmate’s suitability for parole [citation]. Thus, the Governor has discretion to be ‘more stringent or cautious’ in determining whether a defendant poses an unreasonable risk to public safety. [Citation.] ‘[T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the Governor.’ ” (Lawrence, supra, 44 Cal.4th at p. 1204.)
Despite this broad discretion, the Governor’s decision to deny parole due to the aggravated circumstances of the commitment offense must still satisfy due process considerations. (Lawrence, supra, 44 Cal.4th at pp. 1204-1205.) As Lawrence instructs, “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 commission of the offense. This inquiry is, by necessity and 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.” (Id. at p. 1221; Shaputis, supra, 44 Cal.4th at pp. 1254-1255.) Thus, “the aggravated circumstances of the commitment offense are relevant only insofar as they continue to demonstrate that an inmate currently is dangerous.” (Shaputis, supra, at p. 1255.)
In short, the Governor, like the Board, must conduct “an individualized assessment of the continuing danger and risk to public safety posed by the inmate. If the Board determines, based upon an evaluation of each of the statutory factors as required by statute, that an inmate remains a danger, it can, and must, decline to set a parole date. The same holds true for the Governor’s decision to set aside a decision of the Board.” (Lawrence, supra, 44 Cal.4th at p. 1227.)
C. The scope and standard of review
Lawrence, supra, 44 Cal.4th 1181 and Shaputis, supra, 44 Cal.4th 1241 also set forth the standard of review applicable to a decision by the Board or Governor to deny parole.
“[B]ecause the paramount consideration for both the Board and the Governor under the governing statutes is whether the inmate currently poses a threat to public safety, and because the inmate’s due process interest in parole mandates a meaningful review of a denial-of-parole decision, the proper articulation of the standard of review is whether there exists ‘some evidence’ that an inmate poses a current threat to public safety, rather than merely some evidence of the existence of a statutory unsuitability factor.” (Shaputis, supra, 44 Cal.4th at p. 1254.)
Thus, “as specified by statute, current dangerousness is the fundamental and overriding question for the Board and the Governor. In addition... evidence in the record corresponding to both suitability and unsuitability factors--including the facts of the commitment offense, the specific efforts of the inmate toward rehabilitation, and, importantly, the inmate’s attitude concerning his or her commission of the crime, as well as the psychological assessments contained in the record--must, by statute, be considered and relied upon by both the Board and the Governor, whose decisions must be supported by some evidence, not merely by a hunch or intuition. By reviewing this evidence, a court may determine whether the facts relied upon by the Board or the Governor support the ultimate decision that the inmate remains a threat to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1213.)
Regarding the commitment offense, the Supreme Court further instructed that “although the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner’s pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner’s dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1214.)
Accordingly, where “all of the information in a postconviction record supports the determination that the inmate is rehabilitated and no longer poses a danger to public safety, and the 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.” (Lawrence, supra, 44 Cal.4th at p. 1227.)
On the other hand, “[i]f the Board determines, based upon an evaluation of each of the statutory factors as required by statute, that an inmate remains a danger, it can, and must, decline to set a parole date. The same holds true for the Governor’s decision to set aside a decision of the Board.... [T]he Board has the express power and duty, in an individual case, to decline to fix a firm release date, and thus to continue the inmate’s indeterminate status within his or her life maximum sentence, if it finds that the circumstances of the inmate’s crime or criminal history continue to reflect that the prisoner presents a risk to public safety.” (Lawrence, supra, 44 Cal.4th at pp. 1227-1228.)
The Supreme Court also recognized that “certain conviction offenses may be so ‘heinous, atrocious or cruel’ that an inmate’s due process rights would not be violated if he or she were to be denied parole on the basis that the gravity of the conviction offense establishes current dangerousness. In some cases, such as those in which the inmate has failed to make efforts toward rehabilitation, has continued to engage in criminal conduct postincarceration, or has shown a lack of insight or remorse, the aggravated circumstances of the commitment offense may well continue to provide ‘some evidence’ of current dangerousness even decades after commission of the offense.” (Lawrence, supra, 44 Cal.4th at p. 1228.)
Therefore, “the Governor does not act arbitrarily or capriciously in reversing a grant of parole when evidence in the record supports the conclusion that the circumstances of the crime continue to be predictive of current dangerousness despite an inmate’s discipline-free record during incarceration.... [W]here the record also contains evidence demonstrating that the inmate lacks insight into his or her commitment offense or previous acts of violence, even after rehabilitative programming tailored to addressing the issues that led to commission of the offense, the aggravated circumstances of the crime reliably may continue to predict current dangerousness even after many years of incarceration.” (Lawrence, supra, 44 Cal.4th at p. 1228.)
D. The Governor’s decision
With these rules in mind, we proceed to our review of the superior court’s determination that the Governor’s decision failed to “thoughtfully consider and articulate the nexus between the 32 year old circumstances of the crime and its present predictive value on the issue of public safety in light of the fact that [Miller] was a juvenile at the time of the crime.”
To evaluate the merits of Miller’s habeas corpus petition, we have carefully reviewed the record pursuant to the direction of the California Supreme Court in Lawrence, supra, 44 Cal.4th 1181 and Shaputis, supra, 44 Cal.4th 1241: “[W]hen a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings.” (Lawrence, supra, at p. 1212; Shaputis, supra, at p. 1254.) We conclude that remand is appropriate to enable the Governor to conduct a new review of the Board’s parole suitability decision.
i. The commitment offense
The pertinent regulations specify that one of the circumstances tending to show unsuitability for parole is where the prisoner committed the offense in an especially heinous, atrocious, or cruel manner. (Regs., § 2281, subd. (c)(1).) Evidence that would support such a finding includes evidence that the victim was “abused, defiled or mutilated,” or that “[t]he motive for the crime is inexplicable or very trivial in relation to the offense.” (Id., subd. (c)(1)(C), (c)(1)(E).)
In this case, the Governor stated that the crime was especially heinous, atrocious, or cruel for two reasons. One, the victim was beaten and stomped to death, suffering multiple injuries, including a fractured skull and a lacerated penis. Two, the motive for the crime was trivial since the victim was killed because he complained to Miller and Miller’s friends and threatened to call the police because of the noise from a house party. There can be no dispute that this was a particularly dreadful and vicious crime.
ii. Juvenile record
The Governor also cited Miller’s “extensive juvenile record,” which included an adjudication for armed robbery, as a reason for reversing the Board. Miller’s juvenile record is detrimental to his chances for parole in two ways. First, a previous record of violence is a factor tending to demonstrate unsuitability for parole. (Regs., § 2281, subd. (c)(2).) Therefore, Miller’s juvenile record, which includes an adjudication for violent crime, i.e., armed robbery, provides “some evidence” to support the application of this unsuitability factor. Second, the lack of a juvenile record is a factor tending to demonstrate suitability for parole. (Id., subd. (d)(1).) Since Miller has a juvenile record, the “no juvenile record” suitability factor can never apply to his case.
iii. History of prison discipline
Finally, the Governor noted that Miller has been disciplined 23 times for violating prison rules since his incarceration, and some of these rules violations involved violent conduct. The fact that an inmate has engaged in serious misconduct while in prison is yet another factor tending to show unsuitability for parole. (Regs., § 2281, subd. (c)(6).) However, Miller has been discipline-free since 1996, and his last rule violation involving force and violence was in 1978.
Miller received a CDC 115 for destruction of state property in 1979. Arguably, destruction of state property involves some measure of violence, albeit violence directed at a thing, rather than a person. Miller also received a CDC 115 in 1989 for “sexual behavior, conspiracy to commit a Division E offense.” There is no indication in the record that any force or violence was used or threatened in connection with the “sexual behavior” for which Miller was disciplined.
iv. The Governor’s decision does not explain how the applicable suitability and unsuitability factors interrelate to support a finding that Miller is a current threat to public safety
As discussed above, “[i]t 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.” (In re Lawrence, supra, 44 Cal.4th at p. 1212.) The Governor’s decision relies on the commitment offense, Miller’s juvenile record, and Miller’s history of prison discipline. The commitment offense occurred in 1974. Miller’s juvenile record covers a period from approximately 1970 to his commitment for the instant offense in 1975. As for his disciplinary history, Miller has not received a CDC 115 since 1996 and his last CDC 115 involving any sort of force or violence was issued in 1978 or 1979, approximately 27 years before the Governor’s decision. It is not clear how these factors, all of which are immutable, “interrelate to support a conclusion of current dangerousness to the public.” (Ibid., italics added.)
It is also unclear whether the Governor would have reached the same conclusion regarding Miller’s parole suitability under the Lawrence and Shaputis standard, in light of the factors weighing for and against his parole suitability. For these reasons, we conclude that remand is appropriate to provide the Governor with the opportunity to conduct a new review of the Board’s parole suitability decision in light of the California Supreme Court’s direction in Lawrence, supra, 44 Cal.4th 1181 and Shaputis, supra, 44 Cal.4th 1241 that the Governor must conduct “an individualized assessment of the continuing danger and risk to public safety posed by the inmate” that includes consideration of “all relevant statutory factors....” (Lawrence, supra, at pp. 1227, 1219; Regs., § 2281, subd. (b).)
III. Disposition
The matter is remanded to the superior court with directions to modify its order granting Miller’s petition for writ of habeas corpus. The order shall be modified to direct the Governor to vacate his June 20, 2006 parole decision and invite him to conduct a new review of the Board’s decision in light of the decisions in In re Lawrence (2008) 44 Cal.4th 1181 and In re Shaputis (2008) 44 Cal.4th 1241. As modified, the order is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.