Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 100476.
Mihara, J.
Respondent Carlos Shawn Ortiz has been incarcerated since 1986 for second degree murder (Pen. Code, § 187). In January 2010, the Board of Parole Hearings (the Board) concluded he was unsuitable for parole because he would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. Ortiz challenged that decision in the superior court, which granted his habeas corpus petition and ordered the Board to conduct a new hearing.
On appeal, the Warden contends the superior court erred in granting Ortiz’s petition because “some evidence” supports the Board’s decision. We agree, and we reverse the order.
I. Background
The facts are taken from the transcript of the 2010 parole hearing, which included a summary of “the facts... as found in the Probation Report... and Mr. Ortiz’s version of the crime from the 2007 Board Report....”
On a Sunday morning in April 1985, Ortiz stabbed Enrique Sanchez to death. Sanchez was house sitting for Ortiz’s cousin, and his duties included servicing the cousin’s drug clients, one of whom was Ortiz. Ortiz made four cocaine buying trips to the house that weekend, the last one at 4:00 a.m. Sunday.
Sanchez’s body was found in the living room later that morning. Stabbed more than 60 times, he had died from “a perforated larynx, perforated right external jugular vein, and perforated lungs.” Cocaine, cash, and Sanchez’s wallet were missing. Police found Ortiz’s name and phone number on a piece of paper in the living room.
Ortiz admitted going to the house to steal drugs and cash from Sanchez, but he denied killing him. He told police a Jason Vasquez had gone to the house with him, and Vasquez must have murdered Sanchez. Upon learning that Vasquez had an alibi, Ortiz changed his story and claimed his accomplice was a man named Jimmy or Johnny.
Ortiz was arrested after police found a pair of socks with “substantial blood stains” on them in his bedroom closet, and “blood typing revealed a rare blood grouping consistent with Sanchez’s....” A jury convicted him of second degree murder, and he was sentenced to 15 years to life.
B. Ortiz’s Prior History
Raised by his mother and stepfather, Ortiz grew up with siblings he described as “[n]ot real” but “all step.” One step-brother went “to YA for murder.” “[A] couple” of uncles on his mother’s side used heroin, but Ortiz “never went to their houses or nothing like that.” “[M]y mom used to tell me stay away from heroin. Don’t be like your uncles, you know....”
Ortiz’s history of substance abuse began early. He started smoking marijuana at 13, and “with time it became a daily occurrence.” He began smoking PCP at 15 or 16. He started drinking beer “once in a while” at 16 and progressed to drinking Jack Daniels and getting drunk “occasionally.” He admitted driving drunk and acknowledged having been cited for driving under the influence. He suffers from cirrhosis of the liver.
Introduced to cocaine at 18 or 19, Ortiz became addicted “almost immediately.” He supported his $400 a day habit by selling PCP. In the two years that preceded the murder, he was injecting cocaine “whenever I could do it, almost everyday [sic] if I could do it....” It was costing him “[a] lot.” His drug dealer cousin would “front” him cocaine or “just give it to” him.
Ortiz dropped out of school after the 10th grade because he had a daughter and “needed to start working.” He lost “a well-paying job” when his boss saw him “high” on PCP at work.
Although he “got in trouble” at 13 for stealing car speakers, Ortiz has no juvenile convictions. He was convicted as an adult of possession of a controlled substance and various property crimes, including vandalism, “taking a vehicle without [the] owner’s consent, ... burglary, grand theft property, [and] receiving stolen property.” He spent four months in the county jail for possession of stolen property “and I was on probation for that.” He conceded that his overall adjustment to probation had been poor.
C. Postincarceration Record
Ortiz obtained his G.E.D. in prison. He acquired vocational certifications in blueprint reading, production math, and welding. He also earned a certificate of proficiency “for completing 7, 650 hours of sewing machine operator, mattress-maker....”
Between his 2008 and 2010 parole consideration hearings, Ortiz participated in five sections of the Impact Program’s workshop on violence prevention and four sections of its workshop on addiction. He completed “an intensive 16-week treatment modality conducted by the Addiction Recovery Counseling [(ARC)] Program.” He continued his involvement in Alcoholics Anonymous (AA) and Narcotics Anonymous (NA).
The Board incorporated Ortiz’s earlier programming efforts into the record of the hearing by reference from prior Board reports. The details are not included in the record on appeal.
Ortiz has received six “115’s” in prison, the most recent in 1999 for conduct that could lead to violence. He has received eleven “128-A’s, ” including two since being advised in 2008 that he needed “to not get any more 115s or 128s....” Those two were for violation of orders (using a sheet as a curtain on his lower bunk) and for calling his work superintendent an “asshole.” The name-calling was written up as a 115 and as a 128-A, and Ortiz challenged the 115, admitting that he had indeed made the remark but asserting that he had directed it to someone else—a coworker he felt was “slacking off.” Other inmates’ testimony supported that story, Ortiz was found “not guilty” of the rules violation, and the 115 was removed from his file. He did not challenge the 128-A, in which the corrections officer stated that there was “no doubt that [Ortiz’s] comments were directed at me.”
“[A] CDC 115” rules violation report documents serious misconduct that is believed to be a violation of law or otherwise not minor in nature. (In re Gray (2007) 151 Cal.App.4th 379, 389; Cal. Code Regs., tit. 15, § 3312, subd. (a)(3) (Regs.).) Subsequent references to “Regs.” will be to this title.
“A CDC 128-A documents incidents of ‘minor misconduct.’ (Cal. Code Regs., tit. 15, § 3312, subd. (a)(2).)” (In re Reed (2009) 171 Cal.App.4th 1071, 1077 (Reed); Regs., § 3312, subd. (a)(2).)
The earlier 128-A’s were for being out of bounds (2001 and 1997), failing to report to his job (1997), failing to program (1997), yelling in the unit (1996), making a canteen purchase without a pass (1995), passing unauthorized issue of eggs to another inmate (1988), and failing (twice) to report to his education assignment (1988).
D. Psychological Evaluation
Dr. Geca evaluated Ortiz in 2007. Her “addendum for update” is the only psychological evaluation included in the record on appeal.
Ortiz told Dr. Geca that Sanchez was “upset” when Ortiz woke him up at 4:00 a.m. The two argued, and when Sanchez pushed him, Ortiz picked up a knife from the coffee table and “started stabbing [him].” Ortiz said he felt “ ‘paranoid.’ ” “ ‘I used to think that shadows were people[.] I was like that on cocaine.’ ” Ortiz acknowledged cocaine was the main contributor to his crime. He was “craving the drug a lot and seemed unable to stop the craving. As he progressively used more cocaine, ... his cravings increased [and] he... experience[d] paranoia....”
Dr. Geca did not believe Ortiz met the criteria for serious mental illness or personality disorder. She concluded that a previous diagnosis of cocaine dependence was “well supported by his behavior, extended... use of cocaine and presence of withdrawal symptoms, as well as his strong preference for the drug.” He “also met diagnostic criteria for cannabis and [PCP] abuse.” Additionally, he met the criteria for adult antisocial behavior, in that he “engaged in criminal activities such as violence, use and distribution of controlled substances, driving under the influence, and a number of behaviors that led to [the commitment offense].”
As requested, Dr. Geca addressed (1) Ortiz’s violence potential in the free community, (2) the significance of alcohol and drugs related to the commitment offense and an estimate of his ability, if released, to refrain from using and abusing drugs, (3) the extent to which he had “explored the commitment offense and come to terms with the underlying causes, ” and (4) the need for further programming in prison.
Dr. Geca used two different assessment guides, the Psychopathy Checklist-Revised (PCL-R) and the History Clinical Risk-20 (HCR-20), to gauge Ortiz’s violence potential in the free community. His score on the PCL-R put him in the “moderate range” for psychopathy, “a personality trait... strongly linked with risk for future violence.” That score reflected “a set of values and attitudes moderately influenced by need for stimulation, lying, conning or manipulating individuals and the system, early denial of responsibility for his crime, and behavior that is marked by an unstable antisocial lifestyle..., such as grand theft, physical violence..., extensive drug use..., poor performance on probation..., unstable employment..., ‘working under the table’ while taking unemployment benefits, sexual promiscuity, and criminal versatility.”
Ortiz’s score on the HCR-20 test, which examines historical, clinical, and risk management factors associated with violence, put him in the “low range” for violent recidivism. Dr. Geca was primarily concerned about Ortiz’s clinical and risk factors, which, unlike historical factors, can change. She found that Ortiz had only “limited insight” into his criminal behavior and drug and alcohol abuse. He “seem[ed] to appreciate” the gravity of his crime and his drug use but “lack[ed] understanding” of “all of the factors that contributed to his drug seeking behaviors....” Dr. Geca also expressed concern about Ortiz’s ability to handle “destabilizing factors, ” since he had never lived “in free society as an adult while managing [the] stress of relationships, finances, education and overall his or others[’] well-being.” “[R]elatively easy access to illicit drugs in [the] community” was also of concern, since drugs were “a serious contributing factor” to his crime. Overall, Dr. Geca assessed Ortiz’s risk for future violent recidivism “at the low to moderate level.”
Addressing the Board’s second question, Dr. Geca described Ortiz’s “extensive” history of controlled substance abuse, noting that he “reported he stopped using the drug for a short time” before his incarceration but was unable to maintain that lifestyle while “surrounded by friends who actively pursued their addiction.” He had been drug free in prison for eight years, and had “begun to actively participate in AA/NA meetings.” Although he “re-emphasized” his commitment to a clean and sober lifestyle, “his understanding of his drug and alcohol use/abuse was limited.” During the interview, for example, “he was not able to relate his triggers or warning signs of relapse. He was not aware of what contributed to his drug addiction in the first place, and his insight regarding his addiction appeared to be minimal.”
Addressing the Board’s third question, Dr. Geca said “it appear[ed]” Ortiz had “utilized many of the available resources at this setting to gain as full an understanding as possible of his offense.”
Addressing his need for further programming in prison, Dr. Geca suggested Ortiz could lower his clinical and risk management factors by learning (1) “what antecedents (factors) contributed to his criminal activities, ” (2) “what thoughts and behaviors ‘permitted’ him to repeatedly stab [Sanchez], ” (3) “what were the reasons behind his drug use on the day of the offense, ” and (4) “what support system needs to be in place to help him become accountable for his actions in the community.” She recommended that he develop “a specific plan” to prevent his “acting out behavior” and suggested it include “detailed steps of a relapse prevention model relative to use of drugs and alcohol....” Dr. Geca advised that Ortiz “may need to engage in an open dialogue with his family members or friends to provide him with honest opinion about his thinking patterns and behaviors. Such dialogue may entail being vulnerable and desperately honest in receiving correction, advice, direction, and critical but supportive feedback.”
E. January 2010 Parole Consideration Hearing
Ortiz first became eligible for parole in 1994. This was his sixth subsequent parole consideration hearing. He was 47 years old. As was his right, he elected not to discuss the commitment offense. A summary of his version of events was read into the record, as follows:
The Board noted that this account was taken from the 2007 Board Report. Ortiz submitted a written statement in lieu of testifying about his crime, but that statement is not included in the record on appeal, and it is unclear whether it, or any part of it, was read into the record at the hearing.
“[O]n April 13th, 1985, a friend came over and asked him, Mr. Ortiz, to take him to buy some cocaine. They went to meet... Sanchez at the house where drugs were sold, and Sanchez was house-sitting for the actual drug-dealer. [T]hroughout the night, [Ortiz] returned to the house for more cocaine, the last time about four a.m. in the morning, and [Sanchez] answered the door in an agitated state. He was unhappy because of [Ortiz’s] repeated visits, and that he had woken him up. Sanchez started calling him names such as, ‘little ‘hyp’y’... and junkie. Sanchez pushed [Ortiz] over a loveseat and onto the floor. [Ortiz] picked up a knife that was on the end table and started to stab him. He had no idea how many times he stabbed [Sanchez], but kept stabbing him until he realized what he was doing, and then he stopped. He was in a state that he’d never been in. He lost control. He never knew... Sanchez and stabbed him because... he... was under the influence of drugs. That’s [Ortiz] talking about himself not being in his right mind, being yelled at, and being pushed to the ground. All of this is a cause of a terrible act of violence. I’m very sorry for all of this. My drug use caused great pain to the loved ones of [Sanchez], as well as my own family.”
Ortiz told the Board that he had “come to terms with” his crime and accepted full responsibility for his actions. “ ‘As I realize, life is about choices made, and there are choices I... made at a young age that led to my crime. I chose to hang around people who introduced me to drug use.... I can now see that I’d do just about anything to get my next fix of cocaine....’ ” He told the Board he was “ ‘clean and sober today, and I am a recovering addict. I will forever continue substance abuse treatments, such as AA and NA.’ ” Ortiz said he was suitable for parole, “ ‘as I have a non-violent history absent this offense, which was completely out of character and induced by my addiction to drugs.’ ”
The Board asked Ortiz about an apparent contradiction in Dr. Geca’s report. The report stated that “[he] reported he used marijuana for the last time approximately 20 years ago. His prison record, however, read that he was found with marijuana in 1998, which he hid from the officers.” Ortiz explained that he received a CDC 115 in 1998 for possession of marijuana after he mistakenly picked up another inmate’s jacket, “[a]nd there was somebody’s marijuana cigarette in there. I thought it was a regular cigarette at first, but I could smell it, so I put my hand in my pocket at the time. The officers came out, they pulled us over to search us, and I happened to have that marijuana cigarette. So you know, it’s [i]n my possession so I had to get charged with it. But I don’t smoke marijuana, I don’t like it. It doesn’t, you know -- it’s not my thing.”
The Board denied parole. It began by describing the factors that favored and disfavored suitability, explaining that the commitment offense was the “first consideration” weighing against suitability. It noted Ortiz’s unstable social history and his escalating pattern of criminality. It noted his failure to profit from society’s earlier attempt to correct his criminality, explaining that he had adjusted very poorly to his previous probation and upon completing it, had continued his “serious” addiction to cocaine, which “took hold of [him] to the point of this enraged reaction to the victim calling him names....” The Board also noted that he had “experienced some misconduct in prison, ” receiving six 115’s and eleven 128-A’s, two of those in the previous year. It noted the psychological report, which among other things diagnosed cocaine and PCP abuse in institutional remission, revealed test scores placing him in the moderate range of psychopathy, and assessed his risk for future violence as “low to moderate.”
The Board next described the factors favoring suitability, which included the fact that Ortiz had “eventually” taken responsibility for his crime and had expressed remorse. He had upgraded educationally and vocationally. He had never been disciplined for violence in prison, and his age reduced the risk of recidivism. The Board was “pleased” with his work on parole plans and with his participation in the ARC Program. He had “certainly come a long way [in] addressing his drug addiction.” “[O]n balance, ” however, the unsuitability considerations “outweigh[ed] these positive aspects.”
Explaining its reasoning, the Board first noted the two counseling chronos Ortiz had received just weeks after being warned that he needed “to not get any more 115s or 128s.” These were “clearly” of concern, the Board told him, “because it’s an indication that if you can’t follow the directives in prison, ... we question your ability to conform to the expectations in the community, and follow all the rules and the laws. Because if you have problems in here doing that, you certainly are demonstrating that it’s going to be a problem in the community, and that makes you a current risk of danger.” “[Y]ou need to demonstrate that you can control your behavior and your attitude when you’re out in the community, or you remain a present risk to public safety.... [T]here’s no indication that you’ll be able to do so on the outside if you can’t do it in here. So that’s our concern.”
The Board was also concerned that although Ortiz “certainly” had been working to address his drug addiction, “the reasons for it, and how to prevent it from returning, ” he had at the hearing demonstrated “some trouble” relating his triggers and warning signs of relapse. “You mentioned a couple of things, but we would really like you to delve into that between now and your next hearing.” “Because the doctor was concerned about some of the insight and... your ability to describe and understand what your triggers are, and the warning signs of relapse. So to work and strengthen your relapse prevention program is also important.”
Finally, the Board was concerned about Ortiz’s credibility. Referring to his story about picking up the wrong jacket, the Board pointed out that the marijuana cigarette had not been found in a jacket pocket but instead, in Ortiz’s pants pocket, “and you put that into your mouth and tried to swallow it.” “It’s not about the marijuana[;] it’s about your credibility.”
II. Superior Court Proceedings
Ortiz challenged the Board’s decision in the superior court, which granted his habeas corpus petition and ordered the Board to conduct a new hearing within 30 days.
The court’s 23-page decision criticized the Board for remaining “entrenched in its Dannenberg approach to parole determinations even though Dannenberg was overruled.” “One might reasonably have expected, ” the court asserted, “that when the California Supreme Court reversed the authority the Board had been following, the practices, and even the regulations themselves, ought to have been revised so as to conform to the new rules. Because there has been little to no institutional modification of Board practices the result is that, in this case, the Board failed to provide the due process a parole suitability determination requires.” (Italics added.)
In re Dannenberg (2005) 34 Cal.4th 1061 (Dannenberg).
The court focused on the Board’s statement that “ ‘the first consideration which weighs against suitability is the commitment offense, ’ ” construing it as a “declaration” by the Board “that it was denying parole (in part or in large part) because of the crime in and of itself.” There was “really no doubt, ” the court asserted, “that the Board used the crime in and of itself as partial grounds to deny parole....” That approach was “simply wrong.” “[T]he Lawrence definition of due process does not allow the crime to have independent weight as an unsuitability factor without an articulated nexus.” “By assigning independent weight to the crime, ... the Board revealed a systematically flawed approach ....” (Italics added.)
In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence).
The court also faulted the Board for characterizing the crime as exceptional, pointing out that “it is defined as being of the least aggravated sort on the ‘Victim’ axis of the Board’s own matrix. [Ortiz] killed his drug dealer during an attempt to purchase that became confrontational. The matrix classifies this situation as a ‘participating victim’ and assigns it a mitigated triad.” The court labeled the Board’s finding of a “trivial” motive “both wrong and irrelevant.” It was wrong because “ ‘[t]o an addicted intravenous cocaine user, the desire for more cocaine is hardly trivial.’ ” It was irrelevant because “there is no nexus between [Ortiz’s] motive rooted in drug addiction and his present dangerousness” since “[Ortiz] reports that he has not used illegal drugs during his incarceration, ” and “there is no indication he will relapse....”
Applying a harmless error analysis, the court concluded that “[t]he Board’s error of giving the crime independent weight was not harmless in light of the Board’s other errors of declaring the ‘motive’ ‘trivial’ and using a 128 against [Ortiz] which was factually untrue.” The court stated that the Board was “ ‘bound by the court’s findings and conclusions regarding the evidence, ’ ” and that it would be “violat[ing] the separation of powers doctrine by pursuing and implementing a view of statutory interpretation and due process which is contrary to that announced by the Judiciary.” The court vacated the Board’s decision and remanded the matter for a new hearing “in accordance with due process.”
The Warden filed a timely notice of appeal and petitioned for a writ of supersedeas. We granted the petition and stayed the superior court’s order pending appeal.
III. Discussion
A. Standard of Review
“[T]he judicial branch is authorized to review the factual basis of a decision of the Board denying parole in order to ensure that the decision comports with the requirements of due process of law, but... in conducting such a review, the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation. If the decision’s consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner’s petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law.” (In re Rosenkrantz (2002) 29 Cal.4th 616, 658 (Rosenkrantz).)
“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.” (Rosenkrantz, supra, 29 Cal.4th at p. 677.)
“When a superior court grants relief on a petition for habeas corpus without an evidentiary hearing, ... the question presented on appeal is a question of law, which the appellate court reviews de novo. [Citation.]” (In re Lazor (2009) 172 Cal.App.4th 1185, 1192 (Lazor); Rosenkrantz, supra, 29 Cal.4th at p. 677.)
B. Parole Suitability and Unsuitability Criteria
The general standard for a parole unsuitability 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.” (Regs., § 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).)” (Rosenkrantz, supra, 29 Cal.4th at pp. 653-654.)
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” or “[t]he motive for the crime is inexplicable or very trivial in relation to the offense.” (Regs., § 2402, 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, § 2402, subd. (d).)” (Rosenkrantz, supra, 29 Cal.4th at p. 654.)
C. Lawrence
Lawrence killed her lover’s wife because her lover had chosen not to leave his wife for Lawrence. Lawrence shot her lover’s wife multiple times and repeatedly stabbed her. She became a fugitive but surrendered 11 years later and was convicted of first degree murder. (Lawrence, supra, 44 Cal.4th at pp. 1192-1193.)
During 23 years of imprisonment, Lawrence had a few administrative violations, but she was free of serious discipline. (Lawrence, supra, 44 Cal.4th at p. 1194.) Her psychological reports were troubling at first but improved over the years to the point that she was found to have no psychiatric or psychological disorder. (Id. at pp. 1194-1195.) After about a decade in prison, a psychological report found she no longer posed a significant danger to public safety. Numerous psychological reports over the next decade made the same finding. (Id. at p. 1195.) During that same decade, the Board three times found her suitable for parole, but in each instance the Governor reversed. (Id. at pp. 1195-1197.) In 2005, the Board granted parole for the fourth time, and the Governor reversed again, reasoning that the commitment offense had been “ ‘carried out in an especially cruel manner and committed for an incredibly petty reason.’ ” (Id. at p. 1200.)
Lawrence sought habeas relief in the Court of Appeal, which held that the Governor’s decision was not supported by some evidence that she “ ‘presently represent[ed] an unreasonable risk to public safety if released on parole.’ ” (Lawrence, supra, 44 Cal.4th at p. 1201.) The court vacated the Governor’s reversal and reinstated the Board’s grant of parole, and the California Supreme Court affirmed the Court of Appeal’s decision. (Id. at pp. 1201, 1229.)
The high court’s opinion in Lawrence explicitly recognized that “the core determination of ‘public safety’ under the statute and corresponding regulations involves an assessment of an inmate’s current dangerousness.” (Lawrence, supra, 44 Cal.4th at p. 1205.) Reconsidering its holding in Dannenberg, the court explained that it “presumed [in Dannenberg] that the evidence of egregiousness supported the ultimate determination that the inmate posed a threat to public safety, as opposed to merely providing support for the Board’s or the Governor’s conclusion that the crime was particularly aggravated.” (Lawrence, at pp. 1207-1208.) The court concluded that this presumption was invalid, though the Rosenkrantz standard of review remained valid. “This [Rosenkrantz] standard [of review] is unquestionably deferential, but certainly is not toothless, and ‘due consideration’ of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision—the determination of current dangerousness.” (Lawrence, at p. 1210.)
“[T]he statutory and regulatory mandate to normally grant parole to life prisoners who have committed murder means that, particularly after these prisoners have served their suggested base terms, the underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when there is strong evidence of rehabilitation and no other evidence of current dangerousness.” (Lawrence, supra, 44 Cal.4th at p. 1211.) “[I]t is not the circumstance that the crime is particularly egregious that makes a prisoner unsuitable for parole—it is the implication concerning future dangerousness that derives from the prisoner’s having committed that crime. Because the parole decision represents a prospective view—essentially a prediction concerning the future—and reflects an uncertain conclusion, rarely (if ever) will the existence of a single isolated fact in the record, evaluated in a vacuum, suffice to support or refute that decision.” (Id. at pp. 1213-1214.) “Accordingly, we conclude 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.” (Id. at p. 1214.) “Absent affirmative evidence of a change in the prisoner’s demeanor and mental state, the circumstances of the commitment offense may continue to be probative of the prisoner’s dangerousness for some time in the future.” (Id. at p. 1219.)
“[T]he 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 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, supra, 44 Cal.4th 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).) Accordingly, the relevant inquiry for a reviewing court is not merely whether an inmate’s crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor.” (Lawrence, at p. 1221.)
Applying this standard of review to the Governor’s decision to deny Lawrence parole, the court concluded that “[i]n light of petitioner’s extraordinary rehabilitative efforts specifically tailored to address the circumstances that led to her criminality, her insight into her past criminal behavior, her expressions of remorse, her realistic parole plans, the support of her family, and numerous institutional reports justifying parole, as well as the favorable discretionary decisions of the Board at successive hearings—decisions reversed by the Governor based solely upon the immutable circumstances of the offense—we conclude that the unchanging factor of the gravity of petitioner’s commitment offense had no predictive value regarding her current threat to public safety, and thus provides no support for the Governor’s conclusion that petitioner is unsuitable for parole at the present time.” (Lawrence, supra, 44 Cal.4th at p. 1226.)
“Our deferential standard of review requires us to credit the Governor’s findings if they are supported by a modicum of evidence. (Rosenkrantz, supra, 29 Cal.4th at p. 658.) This does not mean, however, that evidence suggesting a commitment offense was ‘especially heinous’ or ‘particularly egregious’ will eternally provide adequate support for a decision that an inmate is unsuitable for parole.... When, as here, all of the information in a postconviction record supports the determination that the inmate is rehabilitated and no longer poses a danger to public safety, and the Governor has neither disputed the petitioner’s rehabilitative gains nor, importantly, related the commitment offense to current circumstances or suggested that any further rehabilitation might change the ultimate decision that petitioner remains a danger, mere recitation of the circumstances of the commitment offense, absent articulation of a rational nexus between those facts and current dangerousness, fails to provide the required ‘modicum of evidence’ of unsuitability.” (Lawrence, supra, 44 Cal.4th at pp. 1226-1227.)
“Accordingly, under the circumstances of the present case—in which the record is replete with evidence establishing petitioner’s rehabilitation, insight, remorse, and psychological health, and devoid of any evidence supporting a finding that she continues to pose a threat to public safety—petitioner’s due process and statutory rights were violated by the Governor’s reliance upon the immutable and unchangeable circumstances of her commitment offense in reversing the Board’s decision to grant parole.... Accordingly, the Governor’s decision is not supported by ‘some evidence’ of current dangerousness and is properly set aside by this court.” (Lawrence, supra, 44 Cal.4th at p. 1227.)
The court noted the limited nature of its holding. “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.)
D. Shaputis
The California Supreme Court’s decision in In re Shaputis (2008) 44 Cal.4th 1241, 1247-1248 (Shaputis) provided a counterpoint to Lawrence and explained how the egregious nature of the commitment offense could combine with other evidence to demonstrate the prisoner’s current dangerousness despite the passage of a long period of time, thereby supporting a decision to deny parole.
Shaputis murdered his second wife by firing a single shot from a handgun into her neck at close range. (Shaputis, supra, 44 Cal.4th at pp. 1247-1248.) He claimed the shooting was an accident, which the evidence overwhelmingly refuted. (Id. at p. 1249.) He had a long history of domestic violence, including violence against his first wife and daughters, and many years of violent abuse of, and threats toward, his second wife before her death. (Id. at pp. 1246-1247.) His prior criminal conduct included a sexual assault on his daughter. Shaputis also had a history of alcohol abuse and was intoxicated on the night of the murder. Although he acknowledged being an alcoholic, “he considers himself to be a ‘mellow... outgoing’ drinker.” (Id. at p. 1248.) He remained discipline-free throughout his incarceration, but psychological reports indicated that there was a “ ‘schizoid quality to his interpersonal relationships.’ ” (Id. at pp. 1249-1250, 1251.)
The Board denied parole in 2004 based on the egregiousness of the offense and his history of unstable relationships. (Shaputis, supra, 44 Cal.4th at pp. 1250-1251.) Shaputis petitioned for a writ of habeas corpus, and the Court of Appeal ordered a new hearing at which the Board could base a denial of parole only on new or different evidence. The Board reluctantly granted parole. The Governor reversed, finding that Shaputis remained a danger to society due to the aggravated nature of the crime, which included premeditation, and his lack of insight into both the murder and the years of domestic violence that preceded it. (Id. at pp. 1251-1253, 1255.) The Court of Appeal granted Shaputis’s writ petition, and the California Supreme Court granted review. (Id. at pp. 1253-1254.)
On review, the California Supreme Court reiterated the Rosenkrantz standard of review it had applied in Lawrence. (Shaputis, supra, 44 Cal.4th at p. 1258.) The court distinguished Lawrence. “This is not a case, like Lawrence ..., in which the commitment offense was an isolated incident, committed while petitioner was subject to emotional stress that was unusual or unlikely to recur. [Citation.] Instead, the murder was the culmination of many years of petitioner’s violent and brutalizing behavior toward the victim, his children, and his previous wife. [¶] The record establishes, moreover, that although petitioner has stated that his conduct was ‘wrong, ’ and feels some remorse for the crime, he has failed to gain insight or understanding into either his violent conduct or his commission of the commitment offense. Evidence concerning the nature of the weapon, the location of ammunition found at the crime scene, and petitioner’s statement that he had a ‘little fight’ with his wife support the view that he killed his wife intentionally, but as the record also demonstrates, petitioner still claims the shooting was an accident. This claim, considered with evidence of petitioner’s history of domestic abuse and recent psychological reports reflecting that his character remains unchanged and that he is unable to gain insight into his antisocial behavior despite years of therapy and rehabilitative ‘programming’, all provide some evidence in support of the Governor’s conclusion that petitioner remains dangerous and is unsuitable for parole.” (Shaputis, at pp. 1259-1260, fn. omitted.)
E. The Case Before Us
The Warden contends the superior court’s order must be reversed because the Board’s parole denial was supported by some evidence that Ortiz remains currently dangerous. We agree.
The Board’s conclusion that Ortiz would pose an unreasonable risk of danger or a threat to public safety if released from prison was based primarily on findings that he lacked insight into his criminal behavior and drug and alcohol abuse and would have difficulty conforming his behavior to the rules of society. Some evidence supports these findings.
Dr. Geca’s report documented Ortiz’s lack of insight, assessing it as only “fair.” Although he “seem[ed] to appreciate” the gravity of his offense and understood that his drug abuse was “the main contributor to his crime, ” he “lack[ed] understanding” of “all of the factors that contributed to his drug-seeking behaviors....” When she interviewed him in 2007, he was unable to describe his triggers or the warning signs of relapse. Dr. Geca recommended then that he could reduce his clinical and risk factors by learning, among other things, “the reasons behind his drug use on the day of the offense, ” “what thoughts and behaviors ‘permitted’ him to repeatedly stab [Sanchez], ” and perhaps most importantly, “what support system needs to be in place to help him become accountable for his actions in the community.” She also recommended that he develop “a specific plan” to prevent his “acting out behavior.”
But at his parole suitability hearing three years later, his insight remained limited. He had “some trouble” relating “the warning signs that might send [him] into relapse, ” and he conceded that he had never prepared a relapse prevention plan. Besides “walking away, ” or telephoning his sponsor or perhaps his aunt, he could not describe what he would do to prevent a relapse. “I guess you would have to, you know. I couldn’t -- Probably that’s what I would do is just call the sponsor. But like I said before, I wouldn’t -- I don’t need to be using the drugs anymore because I want to live. I already got cirrhosis.” Cautioned that many people who are diagnosed with terminal diseases and warned to avoid drugs “in a moment of weakness would do so anyway, ” Ortiz could only respond, “Not me.” All of this evidence supported the Board’s finding that he had not yet gained sufficient insight into the underlying causes of his drug use and, more importantly, how to prevent a relapse, especially when faced with the sort of “destabilizing factors” that Dr. Geca identified (relationships, finances) and the “relatively easy access to illicit drugs in [the] community.”
The Board’s conclusion that Ortiz remained currently dangerous was also based on a finding that he would have difficulty conforming his behavior to society’s rules. Some evidence supports that finding.
Ortiz had been warned at his 2008 parole hearing that he needed “to not get any more 115s or 128s.” Just a few weeks later, he received two 128-A’s within two days of each other, one for having a curtain on his bunk and the other for calling his work superintendent an “asshole.” He denied the former at his 2010 hearing, telling the Board, “[w]ell, I’m not the only one that lives in there, ” but he later admitted that he “probably had [the sheet] right there at the end.”
Ortiz also denied the name calling, asserting that the superintendent “thought, or he thinks I’m the one... but I wasn’t the one that said it.” He told the Board the incident had been written up as a 115 and as a 128-A, and “I beat the 115.” Asked whether he had obtained “a finding of not guilty” or whether the 115 had simply been reduced to a 128 A, Ortiz responded, “It’s [a] finding [of] not guilty.” But there was no evidence before the Board (apart from Ortiz’s testimony) to support his claim. As the Board explained, “absent you having anything to the contrary, the information that we have is that Mr. Purcell wanted to write it as a 115, but it was handled as a 128A.” Given its other concerns about Ortiz’s credibility, the Board could reasonably have disbelieved Ortiz’s unsupported claim and relied instead upon the two128-A’s that it found in his file.
An exhibit to his habeas corpus petition showed that Ortiz did, in fact, “beat the 115, ” but that document was not before the Board.
Ortiz does not deny that he could have appealed the 128-A but chose not to. (Regs., § 3084.1, subd. (a).)
The next question is whether some evidence supports the Board’s conclusion that Ortiz would pose an unreasonable risk of danger or a threat to public safety if released from prison. It does.
The Board properly considered Ortiz’s minor counseling chronos in determining whether to grant parole. (Reed, supra, 171 Cal.App.4th at p. 1084.) “In addition to an evaluation of the risk of future violations of the criminal law, the determination of parole suitability requires a consideration of the broad risk the inmate will fail on parole through noncompliance with the reasonable restrictions imposed by his or her parole agent.” (Id. at p. 1082.) In Reed, the court “interpret[ed] the term ‘danger to society’ so that it sensibly informs the Board’s suitability determination by permitting it to deny release to a life prisoner who has demonstrated a current unwillingness or inability to adhere to the reasonable conditions of parole.” (Id. at p. 1075.) The court held that a single counseling chrono received just two months after the inmate had been advised to “ ‘remain disciplinary free, not even a 128, ’ ” was some evidence supporting the Board’s decision to deny him parole. (Id. at p. 1084.)
The superior court asserted that “the second chrono does not qualify as ‘reliable’ evidence and should not have been used against [Ortiz]” even though the 128-A remained in his file after the 115 was stricken. We need not decide whether the trial court properly considered paperwork that was not part of the record before the Board, because we agree with the Warden that the outcome does not turn on the name calling chrono. (Reed, supra, 171 Cal.App.4th at p.1084.)
Here, as in Reed, Ortiz was “cautioned, in the most direct terms” that he needed to remain discipline free and “not get any more 115s or 128s.” (Reed, supra, 171 Cal.App.4th at p. 1084.) As in Reed, he ignored that directive. (Id. at p. 1085.) “Does [his] inability to follow an express direction to comply with the rules of the institution provide some current evidence that, when released, [he] will be unable to follow society’s laws? It does.” (Id. at p. 1085.)
The Board’s decision to deny parole was also based on Ortiz’s lack of insight into the drug abuse that culminated in the killing. Some evidence supports the Board’s conclusion that Ortiz’s insufficient understanding of his drug abuse made him currently dangerous.
We acknowledge Ortiz’s participation in AA and NA and Dr. Geca’s findings that he does “seem to appreciate” the gravity of his offense and also understands that his drug abuse was “the main contributor to his crime.” Dr. Geca also concluded, however, that Ortiz continued to “lack understanding” of the factors that contributed to his drug-seeking behaviors and had not developed an adequate plan to avoid a relapse. His statements at the hearing confirmed his insufficient insight. It is not our task, nor was it the superior court’s, to reweigh the evidence. (Rosenkrantz, supra, 29 Cal.4th at pp. 676-677.) The Board could reasonably have been concerned, given the ready availability of drugs in the community, perhaps even from his own family members, that until Ortiz better understands his addiction and how to prevent a relapse, he remains currently dangerous.
Ortiz asserts that the Board “gave independent weight to the aggravated aspects of [his] offense, ” and thus placed “a heavy weight on the side of current dangerousness, without any determination of whether th[os]e circumstances... continue to be predictive of current dangerousness.” His argument lacks merit.
To the extent the Board relied on the circumstances of Ortiz’s commitment offense, it did so in the context of his lack of insight into its underlying causes. Just as Shaputis’s present lack of insight into his crime and its underlying causes made the circumstances of his commitment offense probative of his current dangerousness (Shaputis, supra, 44 Cal.4th at pp. 1259-1260), Ortiz’s present lack of insight into his drug abuse made the circumstances of his commitment offense probative of his current dangerousness. Ortiz told Dr. Geca that the trigger of his violence was “the craving of the cocaine.” The cocaine made him feel “paranoid” and by his own account put him “in a state he’d never been in.” He “lost control.” The provocation for the stabbing, some pushing and some name calling, was minor, and the motive, cocaine and cash, was trivial. The Board could reasonably have concluded, given Dr. Geca’s diagnoses of cocaine dependence and PCP and cannabis abuse and Ortiz’s PCL-R score placing him “in the moderate range for psychopathy, ” that until he better understands his addiction and how to prevent a relapse, the chance that another slight provocation might cause him to again “lose control” is simply too great.
We conclude that there was more than a modicum of evidence to support the Board’s conclusion to deny parole. (Rosenkrantz, supra, 29 Cal.4th at pp. 676-677.) The interrelation of Ortiz’s commitment offense, his lack of insight into his drug and alcohol abuse (as evidenced by Dr. Geca’s report and his statements at the hearing), his apparent inability to conform his behavior to society’s rules (as evidenced by his receipt of even one 128-A after being warned against it), and his questionable credibility provide “some evidence” to support the Board’s decision.
The Warden also contends the superior court erred in concluding that Lawrence “invalidated” California’s parole regulations (Regs., § 2402). While we do not interpret the court’s order so broadly, the court did suggest that the regulations were “outdated” after Lawrence and “ought to be revised.” We cannot agree with this suggestion.
In both Lawrence and Shaputis, the California Supreme Court reaffirmed the regulations’ continued viability as the starting point in any parole suitability determination. (Lawrence, supra, 44 Cal.4th at p. 1203, italics added [stating that the Board and the Governor “must consider the statutory factors concerning parole suitability set forth by... [the] regulations....”]; Shaputis, supra, 44 Cal.4th at p. 1257, fn. 13 [stating that section 2402 of the Regs. “governed” Shaputis’s parole suitability].) Thus, the Board properly began its analysis by examining the particular facts of this case in the framework of the regulations to determine which suitability and unsuitability factors were supported by the evidence. Doing so was, of course, only the starting point. Lawrence added another step to the analysis. Since Lawrence, it has been clear that “[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.” (Lawrence, supra, 44 Cal.4th at p. 1212.) “Accordingly, when a court reviews a decision of the Board..., the relevant inquiry is whether some evidence supports the decision of the Board... that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings. [Citations.]” (Id. at p. 1212.)
We believe the Board’s decision satisfied the Lawrence standard. The Board expressly articulated the nexus between Ortiz’s recent counseling chronos and his current dangerousness, telling him that if he had problems following prison directives, “you certainly are demonstrating that it’s going to be a problem in the community, and that makes you a current risk of danger.” The Board did not expressly articulate a nexus between Ortiz’s lack of insight and his current dangerousness, but it did not need to do so. As this court has previously explained, Lawrence does not require some pro forma recitation on the record; it calls instead for reasoning. (In re Criscione (2009) 180 Cal.App.4th 1446, 1461; see Shaputis, supra, 44 Cal.4th 1255, 1259-1261 [holding that Shaputis’s lack of insight and the circumstances of his commitment offense made him currently dangerous without expressly explaining, or requiring the Board to explain, why that was so].) The Board’s reasoning was evident here. Ortiz stabbed Sanchez in a cocaine-fueled rage. The psychological report and Ortiz’s statements at the hearing evidenced a lack of sufficient insight into the underlying causes of his drug addiction and a woefully deficient relapse prevention plan. The Board’s implied conclusion is obvious: until Ortiz sufficiently understands his past addiction, particularly the warning signs of relapse, and until he has prepared an adequate plan to prevent a relapse, he remains currently dangerous.
IV. Disposition
The superior court’s September 24, 2010 order granting Ortiz’s habeas corpus petition is reversed, and the court is directed to enter a new order denying the petition.
We Concur: Bamattre-Manoukian, Acting P. J., Lucas, J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.