Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 95622.
Mihara, J.
Respondent Steven A. Prellwitz has been incarcerated since 1985 for the second degree murders of his mother and his sister. In September 2009, the Board of Parole Hearings (the Board) concluded he was unsuitable for parole because he would pose an unreasonable risk of danger or a threat to public safety if released from prison. Prellwitz challenged the Board’s decision in the superior court, which granted his petition for a writ of habeas corpus and ordered the Board to conduct a new hearing.
On appeal, the Acting Warden contends the superior court erred when it granted Prellwitz’s petition, because “some evidence” supports the Board’s decision. We agree, and we reverse the superior court’s order.
I. Background
The facts are taken from this court’s unpublished 1987 decision affirming Prellwitz’s convictions and from a “counselor’s report dated December 2008.” The counselor’s report was read into the record at the hearing; the appellate decision was incorporated by reference.
In the early morning hours on May 11, 1984, then 26-year-old Prellwitz went to his parents’ house and attacked his father with a rubber mallet, inflicting head and facial wounds and fracturing his father’s arm. When Prellwitz’s mother grabbed her son in a headlock, his father broke free and called police from a nearby 7-Eleven.
Arriving at the house to check on the safety of Prellwitz’s mother and sister, police found the front door open and saw Prellwitz running across the living room. He threw an eight-to-10-inch kitchen knife in their direction. On the floor of a bedroom that showed “signs of a violent struggle, ” police found the blood-smeared bodies of Prellwitz’s mother and sister, still in their nightclothes. His mother had “suffered eight mortal knife wounds puncturing her heart, lungs, windpipe, and stomach.” His sister had suffered a mortal knife wound that punctured her windpipe and esophagus and four less serious knife wounds to the neck. Both bodies were also bruised and lacerated.
Prellwitz was arrested, and he was treated later that day for a collapsed left lung. In 1985, a jury convicted him of two counts of second degree murder (Pen. Code, §§ 187, 189) and one count of assault with a deadly weapon (§ 245, subd. (a)). Allegations that he personally used a knife in committing the murders (§ 12022, subd. (b)) and personally inflicted great bodily injury in the assault (§§ 1203.075, 12022.7) were found true. The court imposed concurrent 15-years-to-life terms for the murders, consecutive to a three-year term for the assault.
Further statutory references are to the Penal Code unless otherwise noted.
B. Prellwitz’s Prior History
Born in 1957, Prellwitz and his sister had “a middle class upbringing.” He described his relationship with his father as “warm but formal” and said he felt “very close” to his mother. She was a schizophrenic who was “in and out of mental places, ” and that “caused a lot of family problems.” Prellwitz was still in college when he married “too early” at 21, and the couple lived with his parents at first, until his wife Gina had “a physical altercation” with his mother. His parents, who had disapproved of the relationship from the beginning, asked them to move out. Prellwitz dropped out of college and worked as a forklift operator to support his family. He and Gina have three children, a daughter born in 1979 and two sons born in 1981.
Prellwitz’s maternal grandfather died in 1983. His will named Prellwitz and his mother as co-executors and divided the estate equally between them and Prellwitz’s sister. In February 1984, they agreed that Prellwitz and his wife and children would move into the grandfather’s house for six months at a minimal rent so he could fix it up for sale. Once he did so, probate lawyers advised his mother to increase his rent. Prellwitz was “struggling financially” at the time, and the possibility of a rent increase or eviction angered him. He claimed he went to his parents’ house on the morning of the murders to convince his mother to stick to their original agreement.
Prellwitz said that he “always managed to avoid violence as a child.” When pressed, however, he recalled “some scrapes” when he was young and “a couple of fights” in junior high. He has no juvenile arrest record. He was convicted as an adult of misdemeanor petty theft in 1979. He has never had a problem with alcohol or drugs.
C. Postincarceration Record
Prellwitz earned his associate’s, bachelor’s, and M.B.A. degrees in prison and acquired vocational certification in five trades. His file contains “a large number” of chronos praising his work habits and motivation.
He has participated in numerous Christian ministry and Bible study programs during his incarceration, including Conflict Resolution in 1996 and Christian Conflict in 2001. He completed two anger management programs, a 16-hour course in 2002 and a 26-week program in 2006. In 2007, he completed a five-session stress management program and a relationship awareness workshop. He prepared two book reports on family violence in 2009.
Prellwitz was stabbed in 1987 in an altercation related to pilfering among inmates in his wing. He was not cited. In 2008, he was attacked by another inmate after refusing to participate in a prisoner-led work stoppage. That attack occurred in front of officers and was caught on videotape. Prellwitz did not fight back, and he was not cited.
Prellwitz has been disciplined twice during his incarceration, in 1989 for possessing a computer disk and in 1992 for excessive contact with his then-girlfriend. He insists both “115’s” were unwarranted. He has received three counseling chronos, the last in 1996 for unauthorized use of a telephone.
“In prison argot, [Rule 128-A] ‘counseling chronos’ document ‘minor misconduct, ’ not discipline.... [Citation.]” (In re Smith (2003) 109 Cal.App.4th 489, 505.) 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)(2), (3).) Subsequent references to “Regs.” will be to this title.
Gina divorced Prellwitz in 1992. He remarried in 1993; that marriage ended four years later. His daughter writes and visits him in prison, and he recently exchanged correspondence with one of his sons. He has no contact with his four grandchildren and has not heard from his father since 1998.
D. Psychological Evaluations
1. Early Evaluations
The 1992 report noted that Prellwitz spoke about the murders “in a very objective, analytical and emotionally distant manner.” He “verbalize[d]” responsibility for the murders, but he also presented “a variety of intervening variables” that “seem[ed] to blur” his responsibility: his father was an “alcoholic, ” his mother was mentally ill, his sister was living “on the fast track” and using drugs, and Gina wanted “to create a schism” between his two families. Although Prellwitz had engaged in psychotherapy in an effort to understand his crimes and other life factors, he had “some difficulty in articulating what insights, if any, he... achieved from [it].” He had developed “some skills” in interpersonal relations, was “more apt to express his feelings in an appropriate manner” when angry or hurt, and was also “watchful lest he place himself in the middle of any conflict/controversy, ” but he continued to assert “the ego defenses of intellectualization, rationalization, and denial.” He also continued to maintain that he “never meant to harm or kill anyone but... amidst the chaos fought only to defend himself.”
Webster’s Third New International Dictionary defines “intellectualize” as “to avoid (conscious recognition of the emotional basis of an act or feeling) by substituting a superficially plausible explanation....” (Webster’s 3d New Internat. Dict. (1993) p. 1174.)
Prellwitz was diagnosed with obsessive compulsive personality disorder in 1992. Testing in 1997 indicated a “reluctan[ce] to communicate and face others regarding personal issues.” In 1997 and 2001, he was diagnosed with impulse control disorder not otherwise specified (NOS) and with personality disorder NOS, both in institutional remission.
2. 2005 Evaluation
Dr. Nancy Van Couvering evaluated Prellwitz in 2005. Disagreeing with earlier evaluators, she did not believe he met the criteria for a psychiatric diagnosis. She stated that Prellwitz “clearly underst[oo]d his own role in the crime” and was “willing to consider and talk about this at length.” Prellwitz told her he “felt a rage within himself” that made him strike out at his mother with the knife. It was not something that had built up “but rather an instantaneous type of anger” at the thought that she “was killing him.” “He was under pressure from the escalating warfare between his wife and family, and now they wanted to force him out of the house, which he partially owned.” Accepting Prellwitz’s self-defense claim, Dr. Van Couvering identified cumulative stress as an important causative factor of the murders and concluded that the “attack by his mother and sister apparently pushed him over the edge.” Citing his educational accomplishments, the letters of support in his file, and his lack of prior legal troubles, she assessed Prellwitz’s future dangerousness as low.
3. 2008 Evaluation
Dr. Jatinder Singh evaluated Prellwitz in 2008. Disagreeing with Dr. Van Couvering, she agreed with earlier evaluators that Prellwitz met the criteria for impulse control disorder NOS and personality disorder NOS (with obsessive-compulsive personality features).
Dr. Singh was expressly asked to consider, among other things, “[t]he extent to which [Prellwitz] has explored the commitment offense and come to terms with the underlying causes and gained insight into his offending.” She observed that “[a]s noted in previous evaluations, [Prellwitz] continues to use intellectualization as a primary defense.” “Even when he reflects back on these events after 24 years, he views himself as attempting to protect himself” from “assaults” by his family members. “The intensity and extent of the assaults [on his mother and sister] is difficult for him to accept and assimilate into the picture of the person he believes himself to be.” However, she noted, he has never denied that he committed the crimes or that others were significantly harmed by his actions.
Dr. Singh reported that Prellwitz “continues to have difficulty” accepting that his anger was a primary factor in the murders. Only “with prompting” during the interview did he acknowledge having been angry at his parents for cosigning the loan for his sister’s new sports car and for buying her previous car, something they had never done for him. He “suspected” the motivation for raising his rent and selling the house was to help his sister pay for the new car. He was “most angry” with his father, but he was also angry at his sister for “siding” with their mother on the rent increase. He acknowledged during the interview that he “must have felt a great deal of anger” toward his mother, since he stabbed her so many times. Thus, he “appear[ed] to have gained some insight into his (over-controlled) anger and how this contributed to the controlling offense[s].”
Dr. Singh noted, as had other evaluators, that while Prellwitz had not yet accepted full responsibility for his actions, he had expressed remorse. Still, he only “partially” understood the role anger played in the controlling offenses, and he had only “beg[u]n to see the impact of his marital and family of origin dynamics on his actions.” More importantly, although he was continuing “to slowly gain insight into himself and his motivations” and had made “some progress” in increasing his knowledge, “his ability to identify and express current emotions remain[ed] limited.” (Italics added.) “Because of personality factors, he still has difficulty fully understanding his angry impulses in the present.” (Italics added.) Dr. Singh reported that during the interview, Prellwitz “denied experiencing anger recently, ” and it was “clear... that [he] continues to try to present himself in the best light.”
Standardized psychological tests administered during the 1998 evaluation indicated that Prellwitz “may have tried to present himself in a favorable light or he may have an unrealistic positive self-image” and “that he can be likeable and make a good first impression, but there are also indications of behaviors such as impulsiveness, manipulation, hostility, and opposition to authority or control.”
Dr. Singh was also asked to consider Prellwitz’s potential for violence if paroled. She concluded that his “intellectual defenses, ” including his involvement in a church “whose rigid rules allow him to maintain distance from his emotions, ” made it “difficult for him to gain insight into his psychological makeup (including the future potential for violence)” but would “for the most part allow him to keep a comfortable distance from his angry feelings.” (Italics added.)
Dr. Singh was also asked to address the need for further therapy programs while incarcerated. She observed that Prellwitz seemed “most comfortable” in “didactic” therapy programs but had also shown a willingness, “despite his discomfort, ” to participate in groups “where his beliefs and decisions are challenged.” She recommended the latter type of programming to help him better understand himself and his motivations.
E. September 2009 Parole Consideration Hearing
Prellwitz was first eligible for parole in 1995. This was his fifth subsequent parole consideration hearing. He was 52 years old.
Prellwitz’s version of the crimes, taken from a December 2008 counselor’s report, was read into the record of the hearing, as follows: “On May 11, 1984, while visiting my mother, I called my father into the garage to show him a small oil leak under my sister’s car. My father kept making remarks about my wife. This made me mad. I struck my father with a mallet. A fight ensued. My father yelled for help, and my mother came out into the garage and grabbed me from behind[, ] choking me. My father ran out of the house. My mother and I struggled into their kitchen. My mother picked up a knife and came at me with a knife. I retreated down the hallway. As I came to a bedroom door, the door opened and I fell into the room, falling onto my sister. I felt a sharp pain in my chest. My sister, mother and I struggled on the bedroom floor. I hit the floor. I hit my sister with a lamp, breaking the lamp. I picked up a piece of the lamp and struck my sister in the neck. I saw the knife on the floor and picked it up. I struck my mother, hitting her several times. I got up and moved back down the hallway and heard pounding on the front door. I saw an officer standing at the door. I threw the knife at the officer to show him I was unarmed, and I fled out the back....” Asked if the account required correction, Prellwitz acknowledged, “it’s essentially what happened.”
Emphasizing his nonviolent record in prison, Prellwitz told the Board, “I’m a real Christian. I’m very rehabilitated. I’ve done everything I can do.... I understand why I did these things. It was my anger, my repression.... And the whole situation. Not dealing with it, building up over the years, that brought me to that point that I committed those crimes in 1984.” He predicted he would be “more likely to be a victim” if released, because “I would turn my back and run.”
The Board denied parole. While it believed Prellwitz had made “a lot of progress” during his incarceration and was “safer as a result of that work, ” the Board felt there was “obviously” still room for further growth, as reflected by the most recent psychological evaluation and Prellwitz’s statements at the hearing.
The Board expressed concern that Prellwitz had not gained sufficient insight into his crimes but instead continued to minimize his involvement, claiming not to remember significant details, although he was not under the influence of drugs or alcohol at the time. The Board noted that he seemed to recall, “maybe, stabbing your sister and your mother maybe twice, ” when in fact, “there was not simply a single blow to your sister.” “The number of wounds to the bodies that you don’t remember. You weren’t high. That gives us all some problems here.”
The Board was also concerned that Prellwitz “intellectualized” his involvement, maintaining, as he had from the beginning, that he had acted in self-defense. The Board felt “strongly, ” in talking to him at the hearing, that Prellwitz viewed himself as a victim, telling him that, apart from his description of the assault on his father, “everything you described was essentially defensive.”
The Board noted that the most recent psychological evaluation, while “generally favorable, ” contained “a lot” of troubling information. The psychologist observed that he was only “slowly” gaining insight into himself and his motivations, still only “partially” understood the role anger played in the controlling offenses, and had only a “limited” ability to identify and express current emotions. That, the Board told him, had also been “shown today in many aspects.... I don’t know how you can be so stoic over there constantly in terms of dealing with these kinds of issues.” The Board believed he had “some challenge there with just coming to grips with that.”
The Board told Prellwitz he needed to continue working on his insight, to “make the connection -- that 16 inches between your head and your heart.” He needed to “tak[e] the kind of responsibility that only comes with... heartfelt hard work.” The Board understood Dr. Singh’s explanation of her diagnoses of impulse control disorder NOS and personality disorder NOS to mean that “there’s still building that can be done in those areas.” The Board told Prellwitz it needed “to see these things under control more so before you’re out there in the community.... [I]t’s important to your future relationships.... [I]t’s going to be very important, because you’re still a young man.”
II. Superior Court Proceedings
Prellwitz challenged the Board’s decision in the superior court, which granted his habeas corpus petition and ordered the Board to conduct a new hearing. The court criticized the Board for “conduct[ing] a surgical parsing of the psychological report to highlight only those statements that negatively reflect upon [Prellwitz]” while “completely ignor[ing] qualifying language by the psychologist” and “rel[ying] upon portions of the psychological report that were taken out of context or based upon immutable facts.” Reasoning that “[t]he impulse control disorder diagnosis lends no support to the [B]oard’s conclusion in the absence of a nexus to [Prellwitz’s] current behavior because it was derived from static factors, ” the court concluded that “[o]bjectively viewed, the psychological report supports only the conclusion that [Prellwitz] is suitable for parole.”
The Acting Warden filed a timely notice of appeal. We granted the Acting Warden’s petition for a writ of supersedeas 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, fn. omitted.)
An offense is considered “especially heinous, atrocious, or cruel” if it “was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering” 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. (In re Lawrence (2008) 44 Cal.4th 1181, 1192-1193 (Lawrence).)
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. (Lawrence, 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. (Lawrence, at p. 1195.) During that same decade, the Board three times found her suitable for parole, but in each instance the Governor reversed. (Lawrence, 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.’ ” (Lawrence, 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. (Lawrence, at p. 1201.) The California Supreme Court affirmed the Court of Appeal’s decision. (Lawrence, 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 In re Dannenberg (2005) 34 Cal.4th 1061 (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.” (Lawrence, 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.” (Lawrence, 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.” (Lawrence, 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 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.... 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. (Shaputis, 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. (Shaputis, 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.” (Shaputis, at p. 1248.) He remained discipline free throughout his incarceration, but psychological reports indicated that there was a “ ‘schizoid quality to his interpersonal relationships.’ ” (Shaputis, at pp. 1249-1251.)
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. (Shaputis, at pp. 1251-1253, 1255.) The Court of Appeal granted Shaputis’s writ petition, and the California Supreme Court granted review. (Shaputis, 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 Acting Warden contends the superior court’s order must be reversed because some evidence supports the Board’s decision that Prellwitz remains currently dangerous. We agree.
The Board’s conclusion that Prellwitz would pose an unreasonable risk of danger or a threat to public safety if released from prison was based on findings that he had not yet accepted full responsibility for the murders and lacked sufficient insight into his crimes and their causative factors. Instead, he continued to minimize, “intellectualize, ” and defend his conduct in ways the evidence refuted. His distorted version of the murders prevented him from fully understanding them or what caused them, and that, in turn, prevented him from “coming to grips with” his emotions, particularly his anger. Some evidence supported these findings, which supported the Board’s conclusion that Prellwitz remains currently dangerous.
Although the Board focused primarily on these findings, it also mentioned Prellwitz’s unstable social history and the heinous nature of the murders.
Prellwitz has never denied that he committed the murders. At the hearing, he told the Board, “I was the one who lost control and committed these crimes.” The 2008 and earlier psychological reports reflected, however, that he still believes he acted in self-defense. His statements at the hearing confirmed that position. According to his version of events, he “retreated” as his mother “came at [him] with a knife.” He felt a “sharp pain” as he “struggled” with his mother and sister on the bedroom floor. He told the Board he thought that he had been stabbed. But he had not been stabbed, and the record refutes his view that he acted “to protect himself” from “assaults” by his mother and sister.
The evidence refutes Prellwitz’s story that he killed his sister in self-defense. She was in her bedroom, apparently still asleep, when he assaulted his father in the garage and quarreled with his mother in the kitchen. His sister became involved in the fracas only because Prellwitz collided with her when she opened her bedroom door, which caused them both to fall into her room. He told the Board she “grabbed onto” him “in the struggle” in her bedroom. He makes no claim, however, that she was armed with a knife or a mallet or anything at all. Although he surmised at trial that his injury resulted either when his father struck him in the garage with the mallet or when his sister hit him with a lamp, he told the Board that he hit her with the lamp, which shattered, not that she hit him with it. Moreover, his injury (a collapsed lung), was minor in comparison to the “large stab wounds” and “multiple blunt injuries” his sister suffered.
The evidence similarly refutes Prellwitz’s claim that he killed his mother in self-defense. By his own account that was read into the record, his mother became involved only because his father “yelled for help” and she “came out into the garage and grabbed [Prellwitz] from behind....” He told the Board his mother was “choking” him in the garage. But he also said he “got her hands off” his throat and “pushed her” away. His mother was no longer a threat at that point, because “[s]he fell into some boxes or something.”
Prellwitz told the Board he was “in fear” when his mother picked up the knife in the kitchen, but he also said “it wasn’t like she threatened [him]” then. He told the Board he stabbed her in the bedroom because he thought she had stabbed him, but he also said that “just a fury took over.” Prellwitz’s mother’s injuries (eight mortal stab wounds to the neck, chest, and abdomen and “multiple blunt injuries”) reflected that she had been stabbed in a fury rather than in self-defense. On this record, it was not arbitrary or capricious for the Board to discount Prellwitz’s self-defense story and to conclude that he had not yet fully accepted responsibility for, or emotionally come to grips with, the murders. (Rosenkrantz, supra, 29 Cal.4th at pp. 676-677.)
The Board’s decision that Prellwitz remained currently dangerous also rested on a finding that he lacked sufficient insight into his offenses and their causative factors, particularly his anger, which was a controlling factor in the crimes. Some evidence supports that finding.
Seven psychological reports in the record document Prellwitz’s increasing but still limited insight. As Dr. Singh noted in 2008, “he continues to use intellectualization as a primary defense.” She found that “[t]he intensity and extent of the assaults” on his mother and sister remained “difficult for him to accept and assimilate into the picture of the person he believes himself to be.” He had “difficulty acknowledging” that his anger was a primary factor in the murders. Continuing to maintain that he acted “to protect himself from the assaults by his family members, ” he had to be “prompted” during the interview to acknowledge he was angry at his parents for cosigning his sister’s car loan. At the hearing, he attributed his sister’s murder to “anger” but could not adequately explain its source: “It happened so fast. All I remember was I wanted to shove her against the dresser. I was angry at her.... [¶]... [¶] I was mad.... I’d asked my mom for help, and she’d gone after me.... [M]e and my father had fought. And in my own mind... my sister was just part of the family fight.” Asked again why he killed his sister, he attributed the murder to “rage” but again could not explain its source. “I can’t understand it now. There’s no rational explanation....” He could only surmise that he was “probably” jealous about the sports car, which he believed prompted the rent increase. That Prellwitz, after years of one-on-one and group therapy, remains unable to explain why he killed his sister and continues to maintain he acted in self-defense evidences insufficient insight into the causative factors of his crime.
It also evidences an insufficient understanding of his own emotions. That he discussed the crimes in an “analytical” manner that “seemed almost devoid of emotion” had been noted by the probation officer in 1985. Dr. Singh observed in 2008 that although Prellwitz’s knowledge was increasing, his “ability to identify and express current emotions remain[ed] limited.” (Italics added.) The Board told him that “was shown today in many aspects, ” including his “stoic” demeanor when discussing the murders, which demonstrated he had not yet “come to grips with” his emotions. All of this evidence supported the Board’s finding that Prellwitz had not yet gained sufficient insight into his crimes or what caused them.
The next question is whether the Board’s findings that Prellwitz had failed to fully accept responsibility for his actions and that he had insufficient insight into his crimes and their causative factors constituted some evidence that he would pose an unreasonable risk of danger or a threat to public safety if released from prison. We think they did.
This is not a case like Lawrence. There, the record was replete with evidence of Lawrence’s rehabilitation and “devoid of any evidence supporting a finding that she continue[d] to pose a threat to public safety.” (Lawrence, supra, 44 Cal.4th at p. 1227.) Here, the evidence was mixed. It is true, as Prellwitz argues, that the record includes some positive information. But 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.) “A court may not substitute its judgment for the Board’s merely because it would weigh the evidence differently.” (Lazor, supra, 172 Cal.App.4th at pp. 1198-1199.) Where, as here, the record reflects the Board’s “due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, ” our review is limited to determining whether some evidence in the record supports the Board’s decision. (Rosenkrantz, supra, 29 Cal.4th at p. 677.)
In our view, this case is closer on the continuum between Lawrence and Shaputis to Shaputis. Like Shaputis, who despite overwhelming evidence to the contrary maintained he shot his wife by accident, Prellwitz despite strong evidence to the contrary maintains he killed his mother and sister in self-defense. (Shaputis, supra, 44 Cal.4th at pp. 1249, 1260.) Like Shaputis, who notwithstanding years of programming had failed to gain insight into his crime or the antisocial behavior that preceded it, Prellwitz notwithstanding years of individual and group psychotherapy still only “partially” understands the role anger played in the controlling offenses, has only “beg[u]n to see the impact of his marital and family of origin dynamics on his actions, ” and possesses only a “limited” ability “to identify and express current emotions” or to understand his angry impulses in the present. (Shaputis, supra, 44 Cal.4th at p. 1252, 1260.) Those findings were sufficient, in Shaputis, to support the Board’s conclusion that he remained currently dangerous and was unsuitable for parole. (Shaputis, at pp. 1259-1260.) They are similarly sufficient here.
Prellwitz argues that a number of psychological evaluations assessed his violence potential as low. We reject his suggestion that the Board was bound by those conclusions. As this court explained in Lazor, “[a] psychological evaluation of an inmate’s risk of future violence is information that also ‘bears on the prisoner’s suitability for release’ [citation] but such assessment does not necessarily dictate the Board’s parole decision. It is the Board’s job to assess current dangerousness....” (Lazor, supra, 172 Cal.App.4th at p. 1202.) We note that Shaputis’s risk of future violence was also assessed as low, yet the Board’s determination that he remained currently dangerous was upheld. (Shaputis, supra, 44 Cal.4th at pp. 1249-1250.) In any event, we do not find the predictions on which Prellwitz relies as convincing as he does. It is apparent from Dr. Van Couvering’s 2005 evaluation that she accepted Prellwitz’s self-defense story as true. Her conclusion that he posed a low risk of future violence because the murders were clearly “a single event” in his lifetime was heavily dependent on her assumption that the “attack by his mother and sister apparently pushed him over the edge.” The record establishes, however, that there was no “attack” by Prellwitz’s mother and sister, and that calls Dr. Van Couvering’s prediction into question.
Dr. Singh’s 2008 conclusion about Prellwitz’s potential for future violence was heavily qualified. She explained that the results of the risk assessment models she used “need[ed] to be regarded with some level of caution since some individuals may possess idiographic differences that could limit the applicability of these instruments.” Her ultimate conclusion, moreover, was not that Prellwitz posed a low risk of future violence but that “the likelihood that problems would ever reach the same level without intervention is very low, ” and “[f]or the most part, his intellectual defenses (including religious beliefs) will allow him to keep a comfortable distance from his angry feelings.” (Italics added.) It was not arbitrary or capricious for the Board to reject Dr. Singh’s assessment of Prellwitz’s potential for future violence. (Rosenkrantz, supra, 29 Cal.4th at pp. 676-677.) It was, after all, Prellwitz’s inability to deal with his emotions, particularly his repressed anger, that caused him to explode into violence on the day of the murders. The Board could reasonably have decided that he needed to develop better coping skills than “keep[ing] a comfortable distance from his angry feelings.”
Prellwitz argues that “the Board failed to articulate any rational nexus between the factors it cited and a finding [that he] is currently dangerous.” We disagree. 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.) Such reasoning was evident here. The Board was concerned that Prellwitz’s “intellectualization” and minimization of his conduct, coupled with his inability even after years of psychotherapy to identify and express current emotions, could cause him to again lash out in violent anger. Neither the psychological evaluations nor Prellwitz’s responses at the hearing allayed those concerns. There was more than “a modicum of evidence” to support the Board’s implied conclusion that until Prellwitz is better able to recognize, confront, understand, and deal with his emotions in general and his angry impulses in particular, he remains a current danger to society. (Rosenkrantz, supra, 29 Cal.4th at pp. 676-677.)
IV. Disposition
The superior court’s August 16, 2010 order is reversed, and the court is directed to enter a new order denying Prellwitz’s habeas corpus petition.
WE CONCUR: Elia, Acting P.J., Duffy, J.