Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. VA023876
ORIGINAL PROCEEDING; petition for a writ of habeas corpus. Petition granted.
Juan Portillo, in pro. per.; and Richard D. Pfeiffer, under appointment by the Court of Appeal, for Petitioner.
Edmund G. Brown, Jr., Attorney General, Julie L. Garland, Senior Assistant Attorney General, Heather Bushman, Supervising Deputy Attorney General, and Lora Fox Martin, Deputy Attorney General, for Respondent.
MALLANO, P. J.
In 1993, a jury convicted petitioner Juan Portillo (Portillo) of attempted murder and found true the allegations that he used a firearm. (Pen. Code, §§ 187, subd. (a), 664, 12022.5, subd. (a).) He was sentenced to a term of life plus three years and received by the California Department of Corrections and Rehabilitation (formerly the Department of Corrections) (CDCR) on June 18, 1993. At Portillo’s sixth parole hearing on December 19, 2007, the Board of Parole Hearings (the Board or BPH) found Portillo unsuitable for parole based on the circumstances of the commitment offense, and based on Portillo’s minimization of his actions and failure to “come to grips with his responsibility.” Portillo filed a petition for a writ of habeas corpus, contending that he has been denied due process because no evidence supports the Board’s conclusion that he would currently pose an unreasonable risk of danger to public safety if released on parole. We agree and grant the petition.
BACKGROUND
A. Commitment Offense
The following facts are drawn from the opinion affirming Portillo’s conviction, People v. Portillo (Sept. 27, 1994, B076545) [nonpub. opn.].
About midnight on January 3, 1993, Portillo and two other men went to a bar in Los Angeles. They arrived already under the influence of alcohol, but not drunk. The two security guards on duty at the bar (Paredes and Brisenio) let the other two men in, but refused to allow Portillo in for lack of identification. Portillo did manage to sneak into the bar later.
A short time later, Paredes heard shouting in the bar and discovered the three men fighting with the bar owner’s brother. Paredes and Brisenio broke up the fight. Paredes and the bar owner’s brother escorted two of the men out; Brisenio escorted Portillo out. Portillo resisted and attempted to go back into the bar. Brisenio sprayed him in the face with mace, and Portillo left. As the three men left, they threatened to return and kill the security guards. They got into a white two-door Toyota and drove away. Portillo rode in the front passenger seat.
About 20 minutes later, Paredes and Brisenio saw the white Toyota driving down the alley behind the bar. The car stopped. Portillo got out, took a shotgun from the vehicle and began shooting at Paredes and Brisenio. The first shot hit a truck about a foot from Brisenio, who felt a “breeze” from the bullet as it passed him. Paredes pushed Brisenio under the truck and dropped to the ground. Portillo fired several more shots; Paredes drew his revolver and fired a shot in return. Portillo got back into the Toyota, and the men drove away.
Half a block from the bar, Los Angeles County Sheriff’s Deputies Avina and Graves saw the Toyota coming toward them. They saw a shotgun barrel sticking up between the driver’s and passenger’s seats. The deputies stopped the car and detained the three men. The deputies found four expended shotgun shells and several live rounds of ammunition in the vehicle.
Deputy Avina read the men their rights. Portillo agreed to speak to the deputy and said he had been involved in a fight at the bar, at which point the security guards escorted him out. He told the other two men to drive him to the alley behind the bar. When he saw the security guards, he pointed the shotgun out the window and fired at them four or five times; one of the guards shot back seven or eight times.
One of the other two men said that Portillo and the third man wanted to kill the security guards, and he agreed with them. The third man kept asking the deputy to remove the handcuffs so he could return to the bar and kill the guards.
Paredes and Brisenio were brought over from the bar, and they identified the men. Another deputy performed a gunshot residue test on Portillo; the results were positive.
The three men were taken to the sheriff’s station, where Detective Martinez interviewed them. Portillo told the detective about the fight in the bar, being escorted out, and being sprayed in the face with mace. He said he was upset and wanted to retaliate. The three men left to get a shotgun, then returned to the bar. Portillo first said he fired the shotgun into the air, but then admitted firing at the security guards, although he insisted he did not intend to kill them. The other two men corroborated Portillo’s story in its essentials.
Portillo testified at trial. After leaving the bar, he sat in the back seat of the car. His eyes were burning from the mace, and he could barely open them. He did not discuss going back to the bar to shoot the security guards, he did not shoot at them, and due to the mace, he did not see who did. He touched the shotgun only when he gave it to the sheriff’s deputies. He said he was very drunk at the time of the shooting; he had been drinking since that morning and had consumed about 40 beers throughout the day. He denied telling the detectives anything.
As stated, Portillo was sentenced to a term of life, plus three years.
B. Social History
Portillo was born in 1971 in El Salvador, the seventh of eight children. He described life with his parents as “positive” and denied any abuse. When Portillo was 12 years old and had completed about six grades in school, representatives from the nearby marine base asked him if he was “going to work with them so that [he] could help [his] parents.” About a year and a half later, he was “recruited” and told he “had to go to the Army.” Doing so enabled him to help his parents financially.
Portillo remained in the Army from ages 13 to 18. While fighting in the capital city, he was shot. During his rehabilitation, the Army sent him back to school for two more years. Portillo began experimenting with alcohol and marijuana when he was in the Army. He smoked marijuana daily and became an alcoholic, drinking approximately a case of beer per week.
Portillo entered the United States illegally when he was 21. He had no juvenile or adult criminal record in either El Salvador or the United States. He has two children.
C. Prison Record
Portillo was received by the CDCR on June 18, 1993. He has been an inmate at Centinela State Prison since June 2000. His classification score has been 19 since January 2002. His disciplinary record contains no “CDC 115” rule violations. He received only one “counseling chrono,” on February 17, 1997 (10 years before the hearing), for failure to lock up.
“‘Prisoner classification scores play a significant role in determining where, within the state’s many prison facilities, a prisoner will be sent to serve [his] term of incarceration. [Citation.] As a general rule, a prisoner’s classification score is directly proportional to the level of security needed to house the inmate....’... [¶] When a male inmate is first received in the prison system, he is housed at a reception center where his case factors are evaluated (i.e., length of sentence, criminal history, behavior during prior and current terms, including escape history) and a standardized system is used to compute a classification score to determine his initial placement in one of the state’s prisons or camps. (See [Cal. Code Regs., tit. 15,] §§ 3375.1–3375.3, subd. (a).) The score is recalculated at least yearly and may determine the necessity of subsequent prison transfers. ([Id., ] § 3375.4.)” (In re Player (2007) 146 Cal.App.4th 813, 823–824.) The mandatory minimum score for a life term inmate is 19. (CDCR, Department Operations Manual (electronic ed. Dec. 31, 2006) Adult Parole Operations, § 61010.11.5, pp. 465–466 http://www.cdcr.ca.gov/Regulations/Adult_Operations/docs/DOM/ DOM%20Ch%206-Printed%20Final.pdf] (as of Aug. 11, 2009).) Scores of 52 and above require the highest level of security (level IV). (Cal. Code Regs., tit. 15, §3375.1, subd. (a)(4).)
A “CDC 115” documents misconduct believed to be a violation of law or otherwise not minor in nature. (See Cal. Code Regs., tit. 15, § 3312, subd. (a)(3); In re Gray (2007) 151 Cal.App.4th 379, 389.)
A “CDC 128-A” or “custodial counseling chrono” documents incidents of minor misconduct. (See Cal. Code Regs., tit. 15, § 3312, subd. (a)(2); In re Gray, supra, 151 Cal.App.4th at p. 389.)
Since he has been in prison, Portillo has tried to upgrade educationally by attempting to earn his GED. Portillo was removed from the GED program for medical reasons because he injured his rotator cuff and began experiencing a lot of pain. After healing from surgery for the problem in 2006, he applied for readmission to the program and was placed on a waiting list. Portillo also wrote to a community college regarding correspondence courses, but was told he needed his GED first. He asked the college representatives whether he could earn his GED through the college, but was told the college did not offer such courses. Portillo contacted Centinela State Prison instructor Mrs. McCarry, who told him he could take the pre-GED test when the prison was no longer on prolonged lockdown. Portillo wrote to Argosy University and Western Michigan University in April 2007 regarding distance learning opportunities. Although both institutions responded that they offered online courses, Portillo lacks online access.
Vocationally, he sought out opportunities but was told repeatedly that due to the severity of the gunshot wound he had received as a teenager and his need to wear non-regulation tennis shoes, he could not be placed in a program.
He has taken a number of self-help courses and participated in therapy, including most recently a course entitled, “Life Without a Crutch” (March 2007), the Steinkamp Bible Study Program from the Water of Life Church, completing lessons 1 through 3 of the New Life Study course as of March 2007, and the Alternatives to Violence Project (February 2007). The record also contains certificates of achievement from Follow Up Ministries, Inc., for a Seminar of Christian Discipleship (March 2005), Computer Assisted Literacy—Reading Curriculum Program from Centinela Desert Institute (September 2001), and Adult Basic Education III from Centinela Desert Institute (January 2005). Portillo provided certificates of completion for an eight-week course in wellness from Centinela State Prison (February 2008) and from the Friends Outside National Organization for the Creative Conflict Resolutions Program.
Portillo has stayed very involved in Alcoholics Anonymous, serving as cochair of the Spanish-speaking group and as sergeant at arms in the English-speaking group.
The deputy commissioner commented that Portillo had “definitely complied with our request for self-help participation.”
Portillo had worked as a clerk, but was removed from the position due to disability and then assigned to the yard crew. He stressed his willingness to work wherever assigned. Although he had worked in a Chinese bakery in Los Angeles (apparently before he was incarcerated), he felt he was best suited to work as a fisherman, a pastor, or in construction. He also acquired computer skills while in prison. Portillo currently works as a clerk/porter in building 2 for the correctional counselors and officers.
Deputy Commissioner Mitchell mentioned several “laudatory chronos” Portillo had received. One, from his Correctional Counselor I, “acknowledge[d] your diligence in performance of your duties as a clerk, keeping order, cleanliness in the building.” One from March 2007 and another from December 2006 “basically sa[id] the same thing.” A chrono from September 2006 also said the same thing, that Portillo did very well. Two more, from June 2006 and March 2006, use “the same language in both of these, talking about how well you perform in your duties as a clerk.”
These documents are not part of the record before us.
D. Mental Health Evaluations and Insight Into Offense
Wanda von Kleist, Ph.D., conducted the psychological evaluation for the December 2007 parole hearing. Dr. von Kleist noted her report was an “addendum for update to the BPH, and only information relevant to the current assessment, and more recent to prior reports” would be addressed. The specific questions the 2006 panel posed included: “1). The prisoner’s violence potential in the free community[;] 2.) The extent to which the prisoner has explored the commitment offense and come to terms with the underlying causes; and 3) Why inmate continues to minimize his involvement and changes the subject when asked about it.”
Dr. von Kleist observed that Portillo “neither exhibited nor reported any mental health problems.” She later wrote that he currently is in remission for prior alcohol and cannabis dependence. “He has been able to maintain his sobriety through active participation in classes, AA/NA and a spiritual community. In order to maintain his gain outside of the prison setting he would need to have similar support structures in place.” Her diagnostic impressions are: Axis I: alcohol dependence (in institutional remission) and cannabis dependence (in institutional remission); Axis II: No Diagnosis; Axis III: gunshot wound to the right femur [a]ffecting movement; Axis IV: Incarceration, and a GAF score of 80. Dr. von Kleist explained her current diagnostic impressions further: “Mr. Portillo continues to be in remission for his alcohol and cannabis dependence. He has a high level of functioning and continues to demonstrate a willingness to participate in the classes and programs available to him for self-improvement. He has been able to achieve continuing improvement in his insight and understanding of his crime. He acknowledges that it has taken a long time for him to understand his role and responsibility in his crimes. He would need a supportive and disciplined structure to return to upon release in order to transition from his long term incarceration back into the general freedoms of society and maintain the gains he has made.”
The American Psychiatric Association publishes the Diagnostic and Statistical Manual of Mental Disorders, Text Edition (4th ed. 2000), setting forth all currently recognized mental health disorders and a comprehensive classification system. Generally, the classification system calls for information to be organized into five “axes” or dimensions to assist clinicians in planning treatment and assessing prognosis: (1) clinical disorders, (2) personality disorders, (3) medical conditions, (4) psychosocial and environmental problems, and (5) global assessment of functioning (GAF). (Id. at p. 27.) Using a point-scale from 100 down to 1 and organized into 10-point descriptive ranges, e.g., 90–81, 70–61, or 50–41, GAF scoring reflects higher functioning in the higher numbers. (Id. at p. 33.) Although we refer to the “DSM-IV” criteria, we recognize that the 2000 text edition of the manual is the authoritative source.
Regarding Portillo’s institutional programming, Dr. von Kleist wrote that Centinela State Prison had been on a “prolonged lock down... that has interfered with the ability for inmates to participate in programming activities.” As described above, Portillo has tried to find educational opportunities. Dr. von Kleist wrote that he is “highly driven to improve himself through education and has demonstrated initiative in trying to get an education while in prison. The extended lock [down] at Centinela Prison on his yard has created a delay in implanting [sic] his pre-GED course work.”
Under the heading “INSIGHT/SELF ASSESSMENT,” Dr. von Kleist wrote that Portillo “sees himself as someone who tries to avoid problems now. He acknowledges that he needed to understand the impact of alcohol abuse in his life. He is making an effort to learn about addictive thinking and behavior and develop new habits of mind and behavior.”
With respect to Portillo’s criminal behavior, Dr. von Kleist stated that he sees it as “directly related to an inability to effectively deal with his anger. He notes that since the age of 13, when he joined the army and the military, he felt that he couldn’t let anyone disrespect him in any way and often lashed out in anger as a form of perceived self-protection. He expressed that he feels he has matured and understands that he needs to ‘cultivate humility and self control.’ He realizes that lashing out in anger... as a way of preserving a sense of self-respect is destructive behavior.” He had great difficulty answering when asked for his view of his personal strengths, finally stating that having matured as a man was his greatest strength and that his greatest weakness was in trying to cultivate humility.
Dr. von Kleist asked Portillo about the accomplishment in which he takes the most pride. He responded: “That I try to do whatever is possible and within my means to better myself and try to be a productive human being in the community.” His biggest change in the past 15 years of his imprisonment was “becoming a Christian which has changed my whole life in every area especially dealing with other people in a helpful way and preaching the word of God right here in prison.”
Dr. von Kleist examined Portillo’s understanding of his life crime. She stated he “understands that alcohol played a big role in his bad judgment, impulse control and violent and destructive behavior. He states that he ‘did not value his life or others as he does now.’ He believes that his training in the army at the young age of 13 made him develop an aggressive attitude toward others that he has had to unlearn.” With respect to his life sentence, Portillo “understands that he had to pay for what he did. He also feels that his prison time has made him realize what he did and how damaging his behavior was and that a lesser sentence would not have given him the chance to understand the gravity of his crime.” He said he wanted the BPH to know that he had a transcript from his codefendant “stating that it wasn’t me who fired the gun and a notarized letter stating the same thing. However, I still take full responsibility for my participation in the crime itself.”
These documents are not part of the record before us.
Dr. von Kleist then addressed the BPH’s questions and provided her risk assessment. First, concerning Portillo’s violence potential in the free community: Dr. von Kleist noted Portillo’s starting point, that is, his very early military experience, which “likely shaped his adult interactions in a more aggressive manner especially since he lacked any insight into appropriate responses other than violence when confronted with a situation that peaked his anger. He also lacked insight into the volatile combination of impulse control, alcohol use and abuse and uncontrolled anger.” His sobriety is essential to his maintenance of “an understanding of his need to manage his anger and response better,” and the psychologist could not “determine what his current behavior would be if he started drinking alcohol or using any other form of drugs.” Portillo was willing to learn new behaviors and had had some time “within the very controlled setting of prison” to practice these new behaviors. She cautioned that he “would need to duplicate many of those support structures and controlled settings outside of prison in order to transition with the greatest chance of success.” Dr. von Kleist observed that living within a religious community and continuing AA/NA “could serve as similar support systems outside of prison.”
The psychologist next addressed the significance of alcohol and drugs as they related to the commitment offense and an estimate of Portillo’s ability to refrain from use or abuse of these substances when released. Dr. von Kleist stated Portillo “expressed remorse for his crimes....” Significantly, “[i]f he remains sober and has a structured environment to be released to that helps him maintain his sobriety he poses a low risk of dangerousness to the free society.” (Italics added.) If he were to use drugs or alcohol, though, “there is nothing to demonstrate that his judgment would not be impaired and that his impulse control would stay under his conscious control.” Given the direct relationship and involvement of his substance abuse history with his crimes and level of violence, Dr. von Kleist opined that Portillo “poses a moderate risk of violence to a free society since his sobriety cannot be assured.”
Regarding the issue of Portillo “minimize[ing] his involvement” and “chang[ing] the subject when asked about [the crime],” Dr. von Kleist’s assessment and conclusion was to the contrary: “He talked extensively about the crime and did not avoid talking about the crime.” In addition, Portillo “[c]urrently expresses gratitude that ‘no one was seriously hurt’ and that he was regretful that he was drinking alcohol from 10 am in the morning.” With improved English skills, Portillo felt he could speak better about his crimes and insight at the current (2007) hearing. Dr. von Kleist found Portillo had “exhibited considerable effort in coming to terms with his commitment offense and the underlying causes.”
At the hearing, the deputy commissioner began discussion of the psychological report by noting it was “favorable... as far as talking about the things you’ve done, the things you’ve accomplished.” He noted the psychological report “looks like a positive report to me[,]” particularly as compared to one from 2003. He quoted from the psychologist’s risk assessment and the “very strong recommendation that you stay with the environment you’re talking about.”
The 2003 psychological report is not part of the record before us.
The deputy commissioner did not think the psychologist really addressed the issue of Portillo’s minimization of his involvement and change of subject when asked about the crime. The deputy commissioner asked whether “[o]ne or more persons were shot[,]” but Portillo’s attorney objected and instructed Portillo not to respond “because it goes to the crime.” (In fact, no one was shot.) The deputy commissioner indicated the prior commissioner’s concern was “why you said different things about what happened, whether you did or did not[,]” which he felt was not addressed in the psychological report. The deputy commissioner then quoted directly from the report with respect to the extent to which Portillo had explored the commitment offense and come to terms with its underlying causes. Overall, it was a favorable report, “saying you’ve done a lot with your life in prison. You’ve done a lot to improve yourself. You present yourself in that manner during this hearing to me. But I do have a question and her answering that question, you’re not speaking of the crime, so I don’t know if there’s anything further your attorney would want to address as to why [the previous commissioner] saw the differences back and forth.”
When discussing the 12-step program earlier in the hearing, Portillo had expressed the willingness to write to the victims to make amends if he could obtain their addresses. The deputy commissioner told him to go through the district attorney’s office.
E. Parole Plans
Portillo told Dr. von Kleist that he would be deported upon being paroled. Pastors in Honduras and El Salvador have offered him work in the church and an opportunity to become a pastor. They would provide him a place to live. One pastor wrote in March 2006 that Portillo would have “clothing, food, financial support and help in finding a job.” Portillo “plans to become a fully educated Christian pastor after release.”
At the hearing, Portillo discussed his letters of support with Deputy Commissioner Mitchell. These included letters from his sister, Maria Rodriguez, his brother-in-law, Jose Ramon Maradiaga, Cayetano Villacorta Alberto Cerna, and Moisés Sánchez. Mr. Maradiaga stated that if Portillo were paroled and permitted to stay in the United States, he could live with Maradiaga and work with him painting houses, at $60 per day. Even if deported to El Salvadaor, Maradiaga said he would help Portillo financially. Maradiaga also offered Portillo help from his family in Honduras. Portillo’s sister offered him lodging, food, transportation, and assistance in preparing for employment. She stated she traveled periodically to El Salvador and would visit him as he established himself there. Cerna, writing from El Salvador, stated he would “offer him my home to live” and would involve him in different commercial aspects of Cerna’s and his nephew’s work. Cerna further stated that “[r]elatives, families, friends, pastors and the Christian community are waiting for [Portillo] in his native country, [E]l [S]alvador.” Finally, the letter from Moisés Sánchez was in Spanish, so the interpreter translated it at the hearing. Pastor Sánchez offered his house and stated he would provide clothing, meals, financial support, and assistance to obtain work. Pastor Sánchez further stated Portillo would be “trained in sacramental ordination” in his church and would have “work as a minister of the Word of God....” As a pastor, Portillo would have a monthly salary of $250. The deputy commissioner called it a “very strong letter” and noted Portillo had employment offers in California and in El Salvador.
F. District Attorney’s Position on Parole
The Los Angeles County District Attorney’s Office did not submit a letter regarding their position on Portillo’s parole. The deputy district attorney did make a closing statement. There, she noted that Portillo told the arresting officer that he shot from the rear seat and out of the open driver’s window, about four or five times. He told the interviewing officer that he did try to shoot the security guard. [sic] He told his probation officer that one of his codefendants grabbed the shotgun and fired it. Portillo told the psychologist in 2003 that he did not fire the gun, but heard the shots. At his parole hearing in December 2006, Portillo claimed again he did not shoot the gun. The current psychological evaluation indicated Portillo could not come to terms with what happened with respect to the underlying offense. Thus, based on the totality of the circumstances and “based on this inmate’s refusal to acknowledge his real participation in the underlying crime, and certainly based upon what the doctor says about his direct relationship and involvement with his crimes and level of violence, her analysis is that the inmate poses a moderate risk for violence to a free society, especially since his sobriety cannot be assured.” The moderate risk assessment was not one the district attorney would accept, and the office strongly objected to Portillo receiving a release date.
G. Board’s Decision
The panel concluded that Portillo was unsuitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The commissioners based the decision first on the commitment offense, which they stated was carried out in a callous manner. Multiple victims were attacked, and the motive for the crime was very trivial in relation to the offense. They “recognize[d] that there are alternative versions” about who fired the shots at the victims, but they relied on the Statement of Facts in the Court of Appeal’s opinion, which stated Portillo was the shooter.
The Panel acknowledged Portillo’s right not to speak about the crime and did not hold this against him: “However, that does not preclude the Panel from reaching its own independent decision based on the totality of the record.” The panel found that Portillo minimized his action and failed to come to grips with his responsibility, “and, as a result, he remains a risk to public safety and, as such, a longer period of incarceration is required.”
H. Habeas Corpus Proceedings
Portillo evidently signed a petition for a writ of habeas corpus on May 11, 2008, which was filed in Los Angeles County Superior Court. The court denied it on May 15, 2008, because: “To the extent that petitioners’[sic] complaints relate to the actions of prison officials and the Board of Prison terms, Los Angeles County is not the appropriate jurisdiction once petitioner states a prima facie case for relief. (Griggs v. Superior Court... (1976) 16 Cal.3d 341, 347; In re Crow (1971) 4 Cal.3d 613, 624[.])”
This document is not part of the record before us but is referred to in the order denying writ of habeas corpus.
Portillo apparently filed a petition for a writ of habeas corpus in Imperial County Superior Court, which transferred the matter back to Los Angeles County Superior Court on August 27, 2008, for further proceedings, pursuant to In re Roberts (2005) 36 Cal.4th 575.
This document is not part of the record before us but is referred to in the order transferring petition for writ of habeas corpus.
The Los Angeles County Superior Court denied Portillo’s petition, purportedly signed on June 9, 2008, by minute order dated October 27, 2008. The trial court stated the Board has focused on the first factor in the relevant regulations regarding the heinous nature of the crime, “(firing a shotgun from a car, four times, at the two security guards who had earlier kicked petitioner out of a bar), which includes multiple victims, a callous disregard for human suffering, and the motive being trivial in relation to the offense.” The court found there was not an absence of evidence depriving petitioner of due process and denied the petition.
DISCUSSION
Portillo contends the Board’s decision finding him unsuitable for parole failed to establish a nexus between the commitment offense and his purported failure to come to grips with the offense and the conclusion that Portillo currently poses an unreasonable risk of danger to society if released on parole. We agree.
A. Governing Law
The purpose of parole is to help prisoners “reintegrate into society as constructive individuals as soon as they are able,” without being confined for the full term of the sentence imposed. (Morrissey v. Brewer (1972) 408 U.S. 471, 477 [92 S.Ct. 2593].) Although a prisoner has no constitutional or inherent right to be conditionally released before the expiration of his sentence (Greenholtz v. Nebraska Penal Inmates (1979) 442 U.S. 1, 7 [99 S.Ct. 2100]), in this state Penal Code section 3041 creates in every inmate a cognizable liberty interest in parole, and that interest is protected by the procedural safeguards of the due process clause. (In re Lawrence (2008) 44 Cal.4th 1181, 1205 [“petitioner is entitled to a constitutionally adequate and meaningful review of a parole decision, because an inmate’s due process right ‘cannot exist in any practical sense without a remedy against its abrogation,’” quoting In re Rosenkrantz (2002) 29 Cal.4th 616, 664]; Biggs v. Terhune (9th Cir. 2003) 334 F.3d 910, 914–915.)
All references to section 3041 are to that section of the Penal Code. Section 3041, subdivision (a), provides as relevant: “One year prior to the inmate’s minimum eligible parole release date a panel of two or more commissioners or deputy commissioners shall again meet with the inmate and shall normally set a parole release date as provided in Section 3041.5.... The release date 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, and that will comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of parole release dates. The board shall establish criteria for the setting of parole release dates and in doing so shall consider the number of victims of the crime for which the inmate was sentenced and other factors in mitigation or aggravation of the crime.”
Section 3041, subdivision (b), establishes a presumption that parole will be the rule, rather than the exception, providing that the Board “shall set a release date unless it determines that the gravity of the current convicted offense... 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....” (See Board of Pardons v. Allen (1987) 482 U.S. 369, 377–378 [107 S.Ct. 2415] [unless designated findings made, parole generally presumed to be available].) “[I]n light of the constitutional liberty interest at stake, judicial review must be sufficiently robust to reveal and remedy any evident deprivation of constitutional rights.” (In re Lawrence, supra, 44 Cal.4th at p. 1211; Irons v. Carey (9th Cir. 2007) 505 F.3d 846, 851 [section 3041 vests “California prisoners whose sentences provide for the possibility of parole with a constitutionally protected liberty interest in the receipt of a parole release date, a liberty interest that is protected by the procedural safeguards of the Due Process Clause”].)
When assessing whether a life prisoner will pose an unreasonable risk of danger to society if released from prison, the panel considers all relevant, reliable information available on a case-by-case basis. The regulations set forth a nonexclusive list of circumstances tending to show suitability or unsuitability for release. (Cal. Code Regs., tit. 15, § 2402, subds. (c) & (d).) Factors tending to indicate suitability include: (1) the absence of a juvenile record, (2) a stable social history, (3) signs of remorse, (4) significant life stress motivated the crime, (5) battered woman syndrome, (6) no significant history of violent crime, (7) the inmate’s age, (8) realistic plans for the future, and (9) institutional behavior. (Id., § 2402, subd. (d).) Circumstances tending to show unsuitability include: (1) the commitment offense was committed “in an especially heinous, atrocious or cruel manner,” (2) a previous record of violence, (3) an unstable social history, (4) sadistic sexual offenses, (5) psychological factors, and (6) serious misconduct while incarcerated. (Id., § 2402, subd. (c).) “In sum, the Penal Code and corresponding regulations establish that the fundamental consideration in parole decisions is public safety.” (In re Lawrence, supra, 44 Cal.4th at p. 1205.)
The regulation specifies the factors to be considered in determining whether the offense was committed in an especially heinous, atrocious or cruel manner as: “(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 which demonstrates an exceptionally callous disregard for human suffering. [¶] (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).)
The “core determination” thus “involves an assessment of an inmate’s current dangerousness.” (In re Lawrence, supra, 44 Cal.4th at p. 1205, original italics.) The Board is authorized “to identify and weigh only the factors relevant to predicting ‘whether the inmate will be able to live in society without committing additional antisocial acts.’” (Id. at pp. 1205–1206, quoting In re Rosenkrantz, supra, 29 Cal.4th at p. 655.) “[D]irecting the Board to consider the statutory factors relevant to suitability, many of which relate to postconviction conduct and rehabilitation, the Legislature explicitly recognized that the inmate’s threat to public safety could be minimized over time by changes in attitude, acceptance of responsibility, and a commitment to living within the strictures of the law.” (In re Lawrence, supra, 44 Cal.4th at p. 1219.) As a result, the “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.” (Id. at p. 1211.) The Board can, of course, rely on the aggravated circumstances of the commitment offense, among other factors, as a reason for finding an inmate unsuitable for parole; however, “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... current demeanor and mental state, indicates that the implications regarding the prisoner’s dangerousness that derive from his... commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.” (Id. at p. 1214, original italics.)
B. Standard of Review
“[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.” (In re Lawrence, supra, 44 Cal.4th at p. 1212, original italics.) The standard is “unquestionably deferential” and “‘limited to ascertaining whether there is some evidence in the record that supports the [Board’s] decision.’” (Id. at p. 1210.) Nonetheless, the standard “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.” (Ibid.) Our inquiry thus 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.” (Id. at p. 1221, original italics.) The Board must articulate a “rational nexus” between the facts of the commitment offense and the inmate’s current threat to public safety. (Id. at pp. 1226–1227 [finding no evidence supported Governor’s determination that Lawrence remained a threat to public safety in view of her “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”]; In re Ross (2009) 170 Cal.App.4th 1490, 1497 [Governor’s written decision flawed because it contained no explicit “‘articulation of a rational nexus between th[e] facts and current dangerousness’”].)
C. Analysis
As in Lawrence, the Board relied principally on the commitment offense in reaching its unsuitability decision. The Board determined the commitment offense had been carried out in a callous manner, “there were multiple victims attacked,” and the motive for the crime was very trivial in relation to the offense.
Reliance on the aggravated circumstances of the commitment offense as a factor in finding an inmate unsuitable for parole is proper, but there must also be “something in the prisoner’s pre- or post-incarceration history or his or her current demeanor and mental state, indicat[ing] that the implications regarding the prisoner’s dangerousness that derive from his... commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety.” (In re Lawrence, supra, 44 Cal.4th at p. 1214.) Not only is that “something” missing from the Board’s 2007 decision, but the record establishes the contrary, that is, that nothing in Portillo’s pre- or post-incarceration history or his current demeanor and mental state support a prediction of current dangerousness.
The only other reason the Board offered for its unsuitability finding is that Portillo “is minimizing his actions and failed to come to grips with his responsibility, and, as a result, he remains a risk to public safety....” Our Supreme Court has held that where a Board finds a petitioner unsuitable for parole based on the gravity of the offense and on a “lack of insight into his long history of violence,” these are “factors that suggest petitioner remains a current danger to the public.” (In re Shaputis (2008) 44 Cal.4th 1241, 1261.) In that case, the record “amply supported” the Governor’s conclusion. Unlike Lawrence, where petitioner had no prior criminal record as a juvenile or as an adult, Shaputis’s commitment offense was not “an isolated incident, committed while petitioner was subject to emotional stress that was unusual or unlikely to recur.” (Id. at p. 1259.) The murder was “the culmination of many years of petitioner’s violent and brutalizing behavior toward the victim, his children, and his previous wife.” (Ibid.) Shaputis stated his conduct was “‘wrong’” and felt some remorse for the crime. But he “still claims the shooting was an accident.” (Id. at p. 1260.) The Supreme Court acknowledged that “expressions of insight and remorse will vary from prisoner to prisoner and that there is no special formula for a prisoner to articulate in order to communicate that he or she has gained insight into, and formed a commitment to ending, a previous pattern of violent behavior.” (Id. at p. 1260, fn. 18.) In Shaputis, the Supreme Court concluded the Governor properly relied on evidence in the record in the form of “both... petitioner’s own statements at his parole hearing characterizing the commitment offense as an accident and minimizing his responsibility for the years of violence he inflicted on his family, and... recent psychological evaluations noting petitioner’s reduced ability to achieve self-awareness.” (Ibid.) The Governor’s decision was thus supported by some evidence: “not merely because the crime was particularly egregious, but because petitioner’s failure to take full responsibility for past violence, and his lack of insight into his behavior, establish that the circumstances of petitioner’s crime and violent background continue to be probative to the issue of his current dangerousness.” (Id. at p. 1261, fn. 20.)
In fact, a prisoner does not have to admit guilt (Pen. Code, § 5011, subd. (b)) and “may refuse to discuss the facts of the crime in which instance a decision shall be made based on the other information available and the refusal shall not be held against the prisoner” (Cal. Code Regs., tit. 15, § 2236).
As to Portillo, he has no criminal record other than the commitment offense and no history of violent behavior. He has support in both California and El Salvador. His institutional record is exemplary. Had the Board relied solely on the commitment offense, it would be a relatively straightforward matter to conclude that the Board had failed to articulate a rational nexus between the life crime and the Board’s finding that he posed an unreasonable risk of danger to society.
Here, the Board also relied on Portillo’s minimization of his actions and his failure to come to grips with his responsibility. But the Board cannot require him to admit guilt in order to gain parole. (Pen. Code, § 5011, subd. (b).) Nor can Portillo’s refusal to admit guilt or discuss the facts of the crime be held against him. (Cal. Code Regs., tit. 15, § 2236.) The Board must, though, consider his “past and present attitude toward the crime” (id., § 2402, subd. (b)), including whether he “performed acts which tend to indicate the presence of remorse, such as attempting to repair the damage, seeking help for or relieving suffering of the victim, or indicating that he understands the nature and magnitude of the offense” (id., subd. (d)(3)).
The previous Board requested a new psychological evaluation of Portillo’s attitude toward the commitment offense and “[w]hy [he] continues to minimize his involvement and changes the subject when asked about it.” In the evaluation, Dr. von Kleist expressly considered and rejected the Board’s assessment. Notably, Dr. von Kleist concluded: “Mr. Portillo has exhibited considerable effort in coming to terms with his commitment offense and the underlying causes.” Furthermore, “[h]e talked extensively about the crime and did not avoid talking about the crime.” In sum, the only evidence in the record on the precise questions the Board had deemed significant enough to derail Portillo’s hopes for parole contradict the Board’s determination that he lacked insight or remorse.
Accordingly, we conclude that the Board’s reasons for finding Portillo remains a public safety risk, 15 years after the commitment offense, not only lack “some evidence,” but lack any evidentiary support whatsoever. There is no rational nexus between these unsupported reasons “and the necessary basis for the ultimate decision—the determination of current dangerousness.” (In re Lawrence, supra, 44 Cal.4th at p. 1210.)
DISPOSITION
The petition for a writ of habeas corpus is granted, and the Board’s decision is hereby vacated. The Board is directed to find Portillo suitable for parole unless, within 30 days of the finality of this decision, the Board holds a parole suitability hearing and finds, based on new evidence, that he currently poses an unreasonable risk of danger to society if released on parole.
We concur: ROTHSCHILD, J., CHANEY, J.