Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Duke D. Rouse, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Super.Ct.No. SWHSS8785
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Heather Bushman and Gregory J. Marcot, Deputy Attorneys General, for Appellant J.F. Salazar, Warden, Chuckawalla Valley State Prison.
Marc Elliot Grossman for Respondent Lorenzo Mora.
OPINION
RICHLI, J.
At the age of 19, petitioner Lorenzo Mora started using heroin. Since then, he has spent his life on probation, on parole, or in prison. Between the ages of 20 and 23, he was convicted of auto tampering, unlawful taking or driving of a vehicle, and robbery. Then in 1988, when he was 24, he was convicted of even more serious offenses: kidnapping for the purpose of robbery, robbery, and unlawful possession of a firearm; he admitted a personal firearm use enhancement. He was sentenced to an indeterminate term of life imprisonment.
Petitioner has applied himself in prison, completing numerous classes and self-help programs. His prison disciplinary record between 1988 and 1998 is not unblemished; however, since 1998, when he first became eligible for parole, he has been cited for only one instance of serious misconduct — a work strike in 2003. About 700 other prisoners were cited in connection with the same work strike, and petitioner claims that refusing to participate would have put his life in danger.
In this habeas corpus proceeding, petitioner challenges the most recent refusal by the Board of Parole Hearings (the Board) to set a parole date for him. The trial court, finding that the denial of parole did not satisfy even the extremely deferential “some evidence” standard of review, granted the writ. J.F. Salazar, as warden of Chuckawalla Valley State Prison, appeals.
We will reverse. The trial court erred in rejecting at least some of the factors on which the Board relied. It is clear that, if the Board had relied on these factors, it would still have denied parole. Accordingly, petitioner was not entitled to writ relief.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Petitioner’s Prior Criminal Record.
Petitioner was born in 1964. At 14, he became a member of a gang called “Duarte Eastside.” Around the same age, he started using marijuana and alcohol. At 19, he started using heroin.
In July 1984, petitioner was arrested for grand theft auto. He was convicted of auto tampering (Veh. Code, § 10852), a misdemeanor, and placed on probation.
In January 1986, petitioner was arrested for robbery. In this incident, the victim approached him and an accomplice and asked to buy marijuana from them. Petitioner and the accomplice pretended to agree and “lured the victim into a truck”; petitioner then grabbed the victim’s money and tried to flee. The victim “tackled” petitioner, so petitioner’s accomplice hit the victim in the head with a tire iron. The victim was not seriously injured. Petitioner was convicted of robbery (Pen. Code, § 211), a felony, and sentenced to two years in prison.
In March 1987, petitioner was released on parole. In April 1987, he was arrested for grand theft auto. He was convicted of unlawful taking or driving of a vehicle (Veh. Code, § 10851), as a felony, and sentenced to 16 months in prison.
On March 24, 1988, petitioner was once again released on parole.
B. The Commitment Offenses.
On March 31, 1988, the victim of the commitment offenses made arrangements to buy a trailer for $3,000. He mentioned that he would go to the bank the next day and take out $5,000. Petitioner’s friend Angelo Bowie was present and heard this conversation. Bowie contacted petitioner, and together they decided to rob the victim.
On April 1, 1988, the victim went to his bank in Fontana and took out the $5,000. He put it in his right pants pocket; he already had $125 in his left pants pocket. As he was getting into his car, petitioner walked up, said, “[H]ey[,] I need a ride,” and got into the passenger side of the victim’s car.
Petitioner then put his hand in the pocket of his jacket. He made a pointing motion that the victim took to mean that petitioner had a gun. Petitioner told the victim to “just drive around.” The victim complied. Shortly afterward, petitioner pulled out a gun and pointed it at the victim. Petitioner ordered the victim to pull into the parking lot of a supermarket, but the victim pulled into the driveway of an adjacent sheriff’s station instead.
Petitioner took the keys out of the ignition. He demanded the victim’s cash; at the same time, he “moved the slide of the weapon forward and let it snap back, placing the weapon against the side of [the victim]’s head.” When the victim “panicked,” petitioner lowered the gun to his lap, but he repeated his demand for money. The victim took the $125 out of his left pocket and handed it to petitioner, but petitioner pointed to the victim’s right pocket and said, “[N]o, I want that.” At that point, the victim opened his door and fled.
“A short time later,” the police saw petitioner and Bowie together on a motorcycle, stopped them, and arrested them. When the police retraced petitioner’s route from the scene of the crime, they found a .25-caliber semiautomatic pistol, “with six rounds in a clip and none in the chamber, with the safety . . . on.”
In connection with the parole hearing, petitioner explained that he needed money to buy a truck “for work.” He also claimed that he was using heroin at the time and that this “contribut[ed]” to his commission of the crime.
On July 28, 1988, petitioner pleaded guilty to one count of kidnapping for the purpose of robbery (Pen. Code, § 209, subd. (b)), one count of second degree robbery (Pen. Code, §§ 211, 212.5), and one count of unlawful possession of a firearm (Pen. Code, § 120221, subd. (a)). He admitted one personal firearm use enhancement (Pen. Code, § 12022.5, subd. (a)), one prior serious felony enhancement (Pen. Code, § 667, subd. (a)), and one prior prison term enhancement (Pen. Code, § 667.5, subd. (b)).
On August 25, 1988, petitioner was sentenced to an indeterminate term of life with the possibility of parole on the kidnapping for purposes of robbery, plus a determinate term of five years on the prior serious felony enhancement. All other counts and enhancements were either run concurrently or stayed.
C. Petitioner’s Prison Record.
In 1990, petitioner earned a GED (general equivalency diploma). Later, he obtained vocational certificates in upholstering and dry cleaning. He completed numerous therapy and self-help programs, including Alcoholics Anonymous/Narcotics Anonymous, “Substance Abuse,” “Basic Life Plan for Recovery” (a 120-hour substance abuse program, with elements of anger management and domestic violence prevention), “Rapha 12[-]Step Workbook” (another substance abuse program), “Awareness Meditation” (an anger management program), “Men’s Work” (another anger management program), “Creative Conflict Resolution,” and “Kairos” (a Christian program). He had received uniformly positive work reports. He claimed that, since being reimprisoned in 1988, he was no longer a gang member.
Petitioner had a total of two “128A’s” and eight “115’s,” as follows:
Form 128-A of the California Department of Corrections and Rehabilitation (formerly the California Department of Corrections) (CDC) is used to report minor inmate misconduct. CDC form 115 is used to report inmate misconduct that is either serious or in violation of the law. (Cal. Code Regs., tit. 15, § 3312, subd. (a).)
June 1989
115
Refusing to work
September 1989
115
Possession of contraband
September 1991
115
Manufacturing alcohol
August 1993
115
Being in an unassigned cell
May 1996
115
Possession of a tattooing device
August 1996
128A
Excessive physical contact
January 1997
115
Possession of unissued property
May 1998
115
Possession of heroin
March 2001
128A
Failure to report
May 2003
115
Participation in a work strike
Some 700 other inmates also received 115’s for participating in the same 2003 work strike. Petitioner claimed that, if he had not participated, his life would have been in danger.
In March 2005, a psychiatrist performed a psychiatric evaluation of petitioner. He concluded that petitioner had “a psychological understanding of [his] involvement in the committing offense[.]” (Italics omitted.) He also concluded that “[w]ithin a community setting, . . . this inmate is slightly less likely than the average citizen to become involved in violence.”
Petitioner’s parole plan included a residence and transportation, offers of employment, and family and community support. The psychiatrist rated his parole plan as “good to excellent.”
D. The Parole Proceedings.
On January 9, 2006, the Board held a parole consideration hearing.
The record does not clearly indicate how many prior parole consideration hearings petitioner had had. He claims that this was his fifth.
Petitioner admitted committing the kidnapping and robbery. He explained, “I met my friend . . . the night before and he asked me if I wanted to do this. I didn’t know the circumstances. I didn’t know that they had made a deal to buy a trailer or anything like that.” He did know that the victim was going to withdraw $5,000. When asked what his share of the loot was supposed to be, he replied, “[W]e never really discussed who was going to get what.” He testified: “ . . . I know what I did was wrong and I know that I would never want anybody in my family placed in [the victim’s] position[.] . . . I would never do that again . . . .” However, he denied intending to hurt the victim. He denied moving the slide of the pistol; he argued that if he had done so, there would have been a round in the chamber.
Petitioner testified that his 115 for heroin possession in 1998 caused his fiancée to leave him, which in turn caused him to decide to quit using drugs and to turn his life around.
A representative of the San Bernardino District Attorney appeared and argued against granting parole.
The Board denied parole. It found that “the prisoner is not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison.” It explained: “The offense was carried out in a calculated manner. The offense was carried out in a manner which demonstrates an exceptional call[o]us disregard for human suffering and the motive of the crime was inexplicable and very trivial in relationship to the offense. The inmate was a drug addict at this time and for whatever reasons he needed money. He agreed to do a robbery. It doesn’t even sound like [he] even knew exactly what the robbery was all about. [He] met a guy the day before. [He] didn’t know how much money or how [he was] going to divide up the money or anything. For these reasons alone the commitment offense is sufficient for the denial. However, the other reasons for the denial [are] in his previous record. I mean, he has a horrible record. He has a record of violence and assaultive behavior and has an escalating pattern of criminal conduct. His failure in previous grants of probation and parole cannot be counted upon to avoid criminality. He has failed to profit from society’s previous attempts to correct his criminality, including adult probation, county jail, prior prison term and parole. The inmate appears that he doesn’t learn. The other reason for denial is his institutional behavior. His institutional behavior is atrocious. He has eight 115’s. In 2003 he was involved in a work stoppage and in 1998 he was using heroin while in prison. Since the inmate was incarcerated in the late ‘80s, he basically wasted eight years of his life.
“[A]lso . . . pursuant to 3042, the District Attorney’s Office of San Bernardino County is in opposition to the inmate receiving a date. . . . The prisoner needs therapy, programming and self-help in order to face, discuss, understand and cope with stress in a non-destructive manner, as well as get further insight into the crime. Until progress is made the prisoner continues to be unpredictable and a threat to others. The most important thing . . . is that . . . the prisoner’s gains are recent and he must demonstrate an ability to maintain the gains over an extended period of time.”
Specifically with respect to petitioner’s 115 for participating in a work strike in 2003, the Board commented: “Sir, your attorney has argued . . . that the 2003[] 115 has mitigation. Don’t ever confuse having mitigation and letting it go. We’re not letting you go. We’re just basically saying that there [are] some mitigati[ng] circumstances. But think about it. The bottom line is that you’re basically taking sides with the gangs and everyone in prison, as opposed to the Corrections Department . . . . [S]ome Commissioners would still hold that against you regardless because you’re not following the rules of society, you’re following the rules of the prison.”
E. The Trial Court Proceedings.
On May 22, 2006, Petitioner filed a petition for writ of habeas corpus in the trial court. The trial court issued an order to show cause. After hearing argument, it granted the petition.
It ruled that “the Board’s decision denying Petitioner’s parole is not supported by ‘some evidence.’” It found that the Board had relied on five factors: (1) “[t]he commitment of the offense,” (2) petitioner’s “[p]rior criminal record,” (3) petitioner’s “[i]nstitutional behavior,” (4) “[p]etitioner’s need for ‘therapy, programming and self-help . . .,’” and (5) the fact that “[p]etitioner’s ‘gains are recent . . . .’” It then found that each of these factors was unsupported by the record, for reasons that we will discuss in more detail below.
II
DISCUSSION
A. Applicable Legal Standards.
“[A] . . . decision granting or denying parole is subject to a limited judicial review to determine only whether the decision is supported by ‘some evidence.’” (In re Rosenkrantz (2002) 29 Cal.4th 616, 625; see also id. at p. 626, 652, 656-658.) “Because the trial court’s findings were based solely upon documentary evidence, we independently review the record. [Citation.]” (Id. at p. 677.)
“[T]he ‘some evidence’ standard is extremely deferential . . . .” (In re Rosenkrantz, supra, 29 Cal.4th at p. 665.) “Only a modicum of evidence is required. Resolution of any conflicts in the evidence and the weight to be given the evidence are matters within the authority of the [Board]. . . . [T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the [Board], but the decision must reflect an individualized consideration of the specified criteria and cannot be arbitrary or capricious. It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole. As long as the [Board]’s decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court’s review is limited to ascertaining whether there is some evidence in the record that supports the [Board]’s decision.” (Id. at p. 677.)
“[A] life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.” (Cal. Code Regs., tit. 15, § 2402, subd. (a).) “[C]ircumstances tending to establish unsuitability for parole are that the prisoner (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) possesses a previous record of violence; (3) has an unstable social history; (4) previously has sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison. (Cal. Code Regs., tit. 15, § 2402, subd. (c).)” (In re Rosenkrantz, supra, 29 Cal.4th at pp. 653-654, fn. omitted.)
“Factors that support a finding that the prisoner committed the offense in an especially heinous, atrocious, or cruel manner include the following: (A) multiple victims were attacked, injured, or killed in the same or separate incidents; (B) the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (C) the victim was abused, defiled, or mutilated during or after the offense; (D) the offense was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering; and (E) the motive for the crime is inexplicable or very trivial in relation to the offense. (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1).)” (In re Rosenkrantz, supra, 29 Cal.4th at p. 653, fn. 11.)
“The nature of the prisoner’s offense, alone, can constitute a sufficient basis for denying parole. [Citations.]” (In re Rosenkrantz, supra, 29 Cal.4th at p. 682.) “In some circumstances, a denial of parole based upon the nature of the offense alone might rise to the level of a due process violation — for example where no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction for that offense. Denial of parole under these circumstances would be inconsistent with the statutory requirement that a parole date normally shall be set ‘in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public. . . .’ [Citation.] ‘The Board’s authority to make an exception [to the requirement of setting a parole date] based on the gravity of a life term inmate’s current or past offenses should not operate so as to swallow the rule that parole is “normally” to be granted. Otherwise, the Board’s case-by-case rulings would destroy the proportionality contemplated by Penal Code section 3041, subdivision (a) . . . . [Citation.] [¶] Therefore, a life term offense or any other offenses underlying an indeterminate sentence must be particularly egregious to justify the denial of a parole date.’ [Citation.]” (Id. at p. 683, quoting Pen. Code, § 3041, subd. (a) and In re Ramirez (2001) 94 Cal.App.4th 549, 570.)
B. Application to These Facts.
The warden contends that the trial court erred in finding no evidence to support the factors on which the Board relied. Like the trial court, we will consider those factors seriatim.
1. Petitioner’s Prior Criminal History.
A “[p]revious [r]ecord of [v]iolence” tends to militate against parole. (Cal. Code Regs., tit. 15, § 2402, subd. (c)(2).) In addition, the Board is generally entitled to consider the prisoner’s “past criminal history,” to the extent that it “bears on the prisoner’s suitability for release.” (Cal. Code Regs., tit. 15, § 2402, subd. (b).)
The trial court disregarded this factor, “[b]ecause petitioner’s record involved no violence or infliction of serious injury, and because the majority of criminal records of offenders imprisoned for life offenses are escalating and reflect a failure of parole or probation . . . .” In doing so, it erred.
Defendant’s criminal history would have been relevant even if it did not involve violence. Defendant had been either in prison, on probation, or on parole for virtually all of his adult life. Between 1984 — when he turned 20 — and 1988, he had been convicted of one misdemeanor and two felonies, plus the commitment offenses; since 1988, he had been in prison. Moreover, petitioner had violated previous grants of both probation and parole, often within just days or weeks of release. This record revealed an intransigent commitment to criminality.
The trial court reasoned that most life prisoners have a criminal record, including failures on probation or parole. The Supreme Court has cautioned us that, because the Board must “normally” set a parole date (Pen. Code, § 3041, subd. (a)), it cannot deny parole based solely on the commitment offense unless that offense is “particularly egregious . . . .” (In re Rosenkrantz, supra, 29 Cal.4th at p. 683.) However, it has also held that the Board can deny parole without “evaluating the offender’s crime against others of similar gravity,” and without “concluding that the offense is particularly egregious by those comparative standards . . . .” (In re Dannenberg (2005) 34 Cal.4th 1061, 1069; see also id. at pp. 1070-1071.) “While the Board must point to factors beyond the minimum elements of the crime for which the inmate was committed, it need engage in no further comparative analysis before concluding that the particular facts of the offense make it unsafe, at that time, to fix a date for the prisoner’s release.” (Id. at p. 1071.) “When the time comes to evaluate the individual life inmate’s suitability for release on parole, the [Board] is authorized — indeed, required — to eschew term uniformity, based simply on similar punishment for similar crimes, in the interest of public safety in the particular case.” (Id. at p. 1083.) By parity of reasoning, the Board can deny parole based on a prisoner’s recidivist criminal record without first comparing that record to the records of other life prisoners. Thus, the trial court erred by applying a comparative analysis to petitioner’s record.
The trial court also erred by finding that petitioner’s record did not involve violence. He had a prior conviction for robbery, a violent crime. Admittedly, it was petitioner’s accomplice, and not petitioner, who actually hit the victim with a tire iron. However, petitioner precipitated the situation by grabbing the victim’s money; moreover, as petitioner and his accomplice “lured” the victim into a truck, evidently by prearrangement, it was fairly inferable that defendant knew that his accomplice was armed and that violence was at least a possibility.
We conclude that petitioner’s criminal record constituted some evidence supporting the Board’s decision to deny parole. The trial court erred by ruling otherwise.
2. The Circumstances of the Commitment Offenses.
The Board found that the offense was carried out “in a manner which demonstrates an exceptional call[o]us disregard for human suffering and the motive of the crime was inexplicable and very trivial in relationship to the offense.” It noted that “[i]t doesn’t even sound like [petitioner] even knew exactly what the robbery was all about.”
There was some evidence that the crime “demonstrate[d] an exceptionally callous disregard for human suffering.” (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1)(D).) Admittedly, every robbery-kidnapping could be said to involve such callous disregard. As already discussed, a commitment offense “must be ‘particularly egregious’ to justify the denial of parole. [Citation.]” (In re Dannenberg, supra, 34 Cal.4th at p. 1095, quoting In re Rosenkrantz, supra, 29 Cal.4th at p. 683.) However, “‘particularly egregious’ [means] only that the violence or viciousness of the inmate’s crime must be more than minimally necessary to convict him of the offense for which he is confined. [Citation.]” (Ibid.) Here, petitioner stands convicted of kidnapping for the purpose of robbery and robbery, with a personal firearm use enhancement. However, his conduct exceeded the minimum necessary to result in such a conviction. In particular, he actually aimed the gun at the victim’s head, at point-blank range, and racked the slide. This can reasonably be viewed as showing callous disregard for the victim’s suffering.
Defendant argued that, when the gun was found, there was no bullet in the chamber. However, while defendant was fleeing the scene, discarding evidence as he went, it would have been easy enough for him to remove the bullet that he had previously chambered. Thus, the Board could reasonably believe the victim’s statement that defendant did, in fact, rack the slide.
There was also some evidence that “[t]he motive for the crime [wa]s inexplicable or very trivial in relation to the offense.” (Cal. Code Regs., tit. 15, § 2402, subd. (c)(1)(E).) Defendant agreed to commit the crime without even asking his accomplice how much his share of the loot would be. Moreover, even assuming that he could expect to get a half-share of $5,000, the Board could reasonably conclude that, when weighed against the inherent danger to human life posed by getting into another person’s car and kidnapping him at gunpoint, this must be deemed a relatively trivial motive.
3. Petitioner’s Institutional Behavior.
“[S]erious misconduct in prison” tends to militate against parole. (Cal. Code Regs., tit. 15, § 2402, subd. (c)(6).) Petitioner had a record of serious misconduct while in prison. The trial court, however, disregarded this factor, for two reasons. First, it noted that all the incidents of serious misconduct, with one exception, had occurred nearly eight years earlier, and that this was longer than the seven-year minimum period of eligibility for parole. Certainly, all other things being equal, remote misconduct is entitled to less weight than recent misconduct. However, we find no authority for a fixed seven-year “wash-out” period. To the contrary, the Supreme Court has stated that “[t]he regulations . . . nowhere indicate that the Board must determine an individual inmate’s suitability by reference . . . to the minimum statutory term for the inmate’s offense. [Citations.]” (In re Dannenberg, supra, 34 Cal.4th at p. 1091.) Just as the commitment offense can be grounds for denying parole for longer than seven years, as long as it is “particularly egregious” (In re Rosenkrantz, supra, 29 Cal.4th at p. 683), serious institutional misconduct can be grounds for denying parole for longer than seven years.
Between 1988 and 1998, petitioner had a pattern of regular institutional misconduct; after May 1998, however, this pattern dropped off suddenly. This could have been because that was when he decided to stop using drugs and alcohol. However, it could also have been because that was when he first became eligible for parole. If the Board felt that the latter was a reason, it would be entitled to conclude that, once petitioner was released, he would lose one significant incentive to stay on the straight and narrow. In any event, it did not have to conclude that, just because petitioner had been able to stay out of trouble for seven years, he could do so indefinitely.
Second, the trial court discounted petitioner’s participation in the 2003 work strike because “inmates who attempt to break such a strike would be in great danger . . . .” We agree that, because of this — and because 700 other inmates also received 115’s for participating in the same work strike — this factor was entitled to little weight. It appears, however, that the Board did give it little weight; it acknowledged that there were “mitigati[ng] circumstances.” At the same time, we cannot say that this factor was entitled to no weight whatsoever. It did tend to show that petitioner was still capable of committing misconduct under the influence of peer pressure and threats. This was particularly significant because he was a lapsed gang member, who might well be subject to peer pressure and threats on release. It was also significant because he had committed prior crimes with accomplices.
We therefore conclude that petitioner’s multiple incidents of serious institutional misconduct prior to May 1998, along with his one incident of serious institutional misconduct after May 1998, afforded some evidence supporting the Board’s decision to deny parole. The trial court erred by ruling otherwise.
4. Overall Suitability for Parole.
So far we have held that there was some evidence to support the Board’s reliance on petitioner’s prior criminal history, the circumstances of the commitment offenses, and petitioner’s institutional behavior; the trial court erred in rejecting these factors. The Board, however, also relied on several other factors, including petitioner’s need for further therapy, the recency of petitioner’s reformation, and the fact that the district attorney was opposed to granting parole. We may assume, without deciding, that the trial court correctly found that these latter factors were not supported by any evidence, because even if so, petitioner was not entitled to writ relief.
“‘If one or more of the factors [relied upon by the Board] lacks evidentiary support, the next questions are whether the Board would have denied parole based upon the supported factors and whether this result “satisfies the requirements of due process of law” because the factors for which there is some evidence “constitute a sufficient basis supporting the . . . discretionary decision to deny parole.”’ [Citation.] ‘We will uphold the denial of parole when it appears that the Board would have reached the same conclusion based on the supported factors and those factors individually or collectively justify that conclusion.’ [Citation.] ‘On the other hand, the “decision cannot stand” when findings on important factors lack evidentiary support and it is not clear that the Board would have reached the same conclusion based on the supported factors.’ [Citation.]” (In re Roderick (2007) 154 Cal.App.4th 242, 276, quoting In re DeLuna (2005) 126 Cal.App.4th 585, 598, quoting In re Rosenkrantz, supra, 29 Cal.4th at p. 677.)
The major factors in the Board’s decision to deny parole were petitioner’s “past” conduct (i.e, before the commitment offenses), “present” conduct (during the commitment offenses) and “future” conduct (after the commitment offenses). We are convinced that the other facts it cited were not determinative. To put it another way, we are convinced that, in light of petitioner’s persistently and egregiously criminal conduct, the Board would have denied parole in any event.
Petitioner argues that it is not enough that the evidence supports the factors on which the Board relied; in addition, there must be some “nexus” between those findings and the ultimate conclusion that petitioner, if released, would pose an unreasonable risk of danger to society. (See In re Dannenberg (2007) 156 Cal.App.4th 1387, 1398.) Defendant’s conduct before, during, and after the commitment offenses, however, rationally supported the Board’s ultimate conclusion.
Defendant also points out that an expert psychiatrist believed that he was “less likely than the average citizen to become involved in violence.” The Board, however, was not bound by the expert’s testimony; defendant’s conduct could rationally be viewed as evidence to the contrary, and the Board was entitled to resolve any conflicts in the evidence. (See In re Pipinos (1989) 33 Cal.3d 189, 200 [in determining whether defendant was a danger to society for purposes of bail pending appeal, “the court was free in the exercise of its discretion to reject . . . professional evaluations in favor of its own assessment of the present crime and defendant’s history”].)
V
DISPOSITION
The order appealed from is reversed. The trial court is directed to enter a new order denying the petition.
We concur: McKINSTER, Acting P.J., GAUT, J.