Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of habeas corpus. Super. Ct. No. C-52021
Richard Pfeiffer, under appointment by the Court of Appeal, for Petitioner.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, and Phillip Lindsay and Amy M. Roebuck, Deputy Attorneys General, for Respondent.
OPINION
IKOLA, J.
In October 1984, a jury convicted petitioner Tony Protopappas of three counts of second degree murder. The court sentenced him to three concurrent indeterminate terms of 15 years to life. (People v. Protopappas (1988) 201 Cal.App.3d 152 (Protopappas I).) In March 2010, we granted petitioner’s petition for writ of habeas corpus and ordered the Board of Parole Hearings (the Board) to vacate its decision finding petitioner unsuitable for parole, to conduct a new parole suitability hearing, and to reconsider its denial of parole to petitioner in light of the current dangerousness standard set forth in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence), bearing in mind that this court found no evidence in the record before it that petitioner poses a current threat to public safety. (In re Protopappas (Mar. 9, 2010, G042075) [nonpub. opn.] (Protopappas II).) In July 2010, the Board, pursuant to our order, found petitioner to be suitable for parole and granted him parole on special conditions. But on December 15, 2010, the Governor reversed the Board’s decision, relying exclusively on the facts of the commitment offenses and petitioner’s purported lack of insight. Petitioner now asks this court for a writ of habeas corpus, arguing he does not present a current threat to public safety. For the reasons discussed below, we grant the petition.
Our Supreme Court has subsequently held that, “although a reviewing court may expressly limit the Board’s reliance upon evidence the court already has considered and rejected as insufficient, the court should avoid issuing directives that improperly limit the Board’s statutory authority to review and evaluate the full record — including evidence previously considered by the Board, as well as additional evidence not presented at prior parole hearings.” (In re Prather (2010) 50 Cal.4th 238, 258.)
Petitioner did not seek relief from the superior court before petitioning this court. Because the issues presented here flow directly from our reversal of the Board’s 2008 denial of parole to him, this court is the most appropriate court to hear his writ petition in the first instance. (In re Kler (2010) 188 Cal.App.4th 1399, 1402, 1404.)
FACTS
We first set forth the relevant factual and procedural background from our prior unpublished opinion which was filed in 2010 and in which we granted petitioner’s petition for writ of habeas corpus. (Protopappas II, supra.) We then discuss events subsequent to our 2010 opinion which are relevant to the present appeal.
The 2010 Opinion
The following factual recitation concerning the commitment offenses is taken from this court’s 1988 published opinion, Protopappas I, which affirmed petitioner’s second degree murder convictions. At his 2010 parole hearing, petitioner accepted as true the facts recited in Protopappas I.
“Petitioner opened his dental clinic in 1974, and by 1982, employed five dentists. [Citation.] He was, however, the lone person at the clinic licensed to administer general anesthesia.” (Protopappas II, supra, G042075.)
“The first victim, Kim Andreassen, was a frail 24-year-old who told petitioner ‘she suffered from lupus..., total kidney failure..., high blood pressure, anemia, a heart murmur, and chronic seizure disorder.’ [Citation.] Petitioner examined her, said she needed a root canal and other procedures, and ‘recommended local anesthesia to perform the work.’ [Citation.] Andreassen refused ‘to have any work done unless she was asleep. [Petitioner] warned her that, because of her poor health, there was a very high risk she could die under general anesthesia.’ [Citation.] Petitioner’s ‘office manager, who had contacted Andreassen’s general physician, informed [petitioner] she was not to be placed under general anesthesia even for a short time.’ [Citation.] On the scheduled treatment day, petitioner administered ‘his standard doses of drugs’ intravenously to Andreassen and also ‘gave her a local anesthetic.’ [Citation.] With Andreassen asleep, petitioner ‘began the scheduled treatment. Within five to twenty minutes, Andreassen’s lips turned purple, her face pale blue, and her pulse became irregular. [ Petitioner] administered oxygen and her lip color returned to normal....’ [Citation.]... [Citation.] ‘When an assistant noticed Andreassen was taking very shallow breaths followed by big deep breaths, he directed [petitioner’s] attention to the irregular breathing. [ Petitioner] responded, “Maybe that’s normal for her because she is so ill.” He completed the dental work. Andreassen was breathing normally when he left the room.... [¶] Ten to fifteen minutes later her breathing became shallow and irregular, her pulse became weak, and her face turned blue. The attending assistant gave her oxygen, and... called another dentist, Dr. Brown, to help. He observed that Andreassen had gone into respiratory collapse and immediately placed an oxygen mask on her face. Two to three minutes later, [petitioner] arrived and gave her oxygen. When she failed to respond, he left the room to get additional medication. Either [petitioner] or his assistant brought in narcan, a medication to reverse the effects of the drugs she had received. [Petitioner] administered the narcan.... [P]aramedics were called shortly thereafter.’ [Citation.] ‘Despite the efforts of the paramedics, Andreassen was clinically dead when she arrived at the hospital.’ [Citation.].” (Protopappas II, supra, G042075.)
“‘The coroner concluded the general anesthesia resulted in critical cardiac arrest with the disseminated lupus being a significant contributing factor. Two anesthesiologists and two oral surgeons testifying as expert witnesses opined that she died of a massive drug overdose.’ [Citation.] An anesthesiologist ‘testified that Andreassen’s irregular breathing was symptomatic of severe toxicity and should have been interpreted as urgent and life threatening’ and that petitioner’s ‘delay in calling the paramedics endangered her life....’ [Citation.]” (Protopappas II, supra, G042075.)
“Petitioner ‘testified in his own defense. He felt the deep cavity in Andreassen’s tooth needed a root canal or the lupus would cause infection to spread and would become life threatening. He did not put her under general anesthesia but used conscious sedation instead.’ [Citation.]” (Protopappas II, supra, G042075.)
“Four and a half months later, the second victim, 13-year-old Patricia Craven, had swollen tonsils, but was otherwise ‘active and healthy when she went to [petitioner] to have four wisdom teeth pulled, eight teeth filled, and a tooth crowned.’ [Citation.] Petitioner ‘administered his standard setup of intravenous medications’ and ‘assured Craven’s mother the enlarged tonsils would not be a problem but that her daughter would be watched more closely. A few minutes after the first injection, Craven appeared to hold her breath and became pale. [Petitioner] gave her oxygen and 10 minutes later left the room.’ [Citation.] ‘As soon as she was sure Craven’s mother had left the operating room, a second dentist, Dr. Marietta Badea, entered to do the fillings and prepare for the crown. [Petitioner] instructed her to give prearranged doses of various drugs to Craven whenever she showed signs of coming out of anesthesia (becoming light). He also cautioned her about the swollen tonsils. Dr. Badea was not licensed to administer anesthesia medications.’ [Citation.] ‘Within the next two and one-half to three hours, Craven became light nearly a dozen times.’ [Citation.] ‘Each time Craven became light, Dr. Badea gave her additional intravenous drugs without supplemental oxygen. She was scared about the quantity the adolescent had received but [petitioner], never again leaving his own patient to check on Craven’s condition, ordered her to administer more drugs to keep Craven down.’ [Citation.] When Dr. Badea finished her work, she was “alarmed at the amount of drugs already given to Craven, [and asked petitioner] to hurry.’ [Citation.] ‘He directed her to keep the girl down until he was able to perform the extractions. When Craven awoke again, Dr. Badea gave her more drugs as ordered.’ [Citation.] Petitioner ‘did not return to Craven’s operating room for another half an hour. He gave her additional anesthetic, ’ extracted four teeth in 45 minutes, and left, returning ‘10 minutes later to suction her throat. She was so deeply sedated she failed to gag when suctioned. Although he acknowledged the swollen tonsils would probably impair Craven’s breathing, he left the room shortly thereafter.’ [Citation.] ‘The office manager and [petitioner] tried, unsuccessfully, to awaken Craven to go home.’ [Citation.] Petitioner ‘told her mother she was “very deep under” and it would be at least one hour before she would awaken.’ [Citation.] ‘Dr. James Rolfe, another staff dentist at the clinic, helped discharge Craven once he was told she was ready.’ [Citation.] ‘Having never assisted with a patient so unresponsive, he asked the office manager if [petitioner] was available to check her. She told him he was not available and the patient would be fine.’ [Citation.] Rolfe ‘carried [Craven] to the car, placed her with her mouth down to allow the fluid to drain, and told her mother to watch her breathing.’ [Citation.] ‘Craven never regained consciousness’ and ‘died 11 days later.’ [Citation.] The coroner found she died of cardiac arrest caused by the medication received, with the immediate cause of death being pneumonia in the right lung. The prosecution’s experts opined ‘Craven suffered a massive drug overdose and died as a result of Protopappas’s failure to closely supervise her and to recognize her obstructed airway.’ [Citation.] Petitioner testified he ‘instructed his staff to keep her there to sleep off the anesthesia, but when he returned to check on her, she had been released.’ [Citation.]” (Protoppapas II, supra, G042075.)
“Three days after Craven’s treatment and release (while Craven still lay in a coma), 31-year-old Cathryn Jones came to petitioner’s clinic, having ‘had a pituitary tumor removed nine months earlier and... suffering from periodontitis, bone loss, and abscess formation around a great number of her teeth. On [petitioner’s] advice, she decided to have her teeth removed.’ [Citation.] One of petitioner’s assistants contacted Jones’s physician, who ‘approved the use of sodium pentothal only.’ [Citation.] Petitioner placed Jones ‘under general anesthesia using his standard setup’ and ‘began removing her teeth.’ [Citation.] ‘About one and one-half hours into the operation, the dental assistant told [petitioner] Jones’s lips were turning purple. [Petitioner] testified he looked at her lips but they were not blue. He did not take her pulse because bright red blood was squirting in her mouth indicating to him that she was properly oxygenated. A short while later the assistant again told [petitioner] Jones’s lips were turning purple. He became angry and told the assistant she did not know what purple was. Comparing Jones’s lips to a purple syringe cap he held up, [petitioner] said, “Goddamn it, this is purple, ” and pointing to her lips, “this is not.” The assistant warned him of Jones’s deteriorating condition a third time, this time pointing out that her fingernails were blue. [Petitioner] insisted they were pink.’ [Citation.] When ‘Jones did not appear to be breathing, ’ petitioner acknowledged she needed oxygen and gave ‘her three short breaths through an oxygen mask. She did not respond. The assistant could not hear a heartbeat but [petitioner] said he detected a faint one. He began CPR and sent his assistant to get some narcan. He then stopped to give her a local anesthetic under the tongue to stimulate her heart.’ [Citation.] ‘Seven to ten minutes after the emergency arose, an assistant asked [petitioner] for the third time if the paramedics should be called and he finally responded affirmatively.’ [Citation.] Jones ‘died two days later.’ [Citation.] ‘The prosecution’s experts testified the massive amounts of drugs given to her were lethal.’ [Citation.]” (Protopappas II, supra, G042075.)
In 1988, “this court found substantial evidence that petitioner acted with implied malice; his misconduct constituted ‘more than gross negligence.’” (Protopappas II, supra, G042075.) This court stated: “The most troubling aspect of this case is that [petitioner] has been convicted of murder for acts committed as a practicing, licensed dentist under circumstances where there can be no doubt he did not truly intend to kill anyone.” (Protopappas I, supra, 201 Cal.App.3d at p. 167, fn. 9.)
2. The 2008 Parole Hearing and Board Decision
At the 2008 parole hearing, the Board found petitioner unsuitable for parole. At that time, petitioner’s most recent psychological evaluation was dated in 2005 and “found his potential for violence, in ‘comparison to other minimum security inmates, ’ to be below average.” (Protopappas II, supra, G042075.) Petitioner “had been ‘disciplinary free’ for over 20 years” and had “‘consistently received excellent work reports’ from his supervisors at the Folsom Dental Department, where he worked as a denture laboratory technician.” (Ibid.) “Petitioner was ‘an active participant’ in Alcoholics Anonymous and Narcotics Anonymous, ... [was] involved in many other ‘self help programs, ’” and “stated that if he were released on parole, he would continue to participate in AA or NA.” (Ibid.) “If paroled, petitioner planned to live with his brother Cosmos, a dentist, and to work for Cosmos, performing the same type of ‘dental lab work’ he was currently doing at the prison. He would have no interaction with patients.” (Ibid.)
“The Board denied petitioner parole for two years, finding he ‘would pose an unreasonable risk of danger to society or a threat to public safety if released from prison, ’ on four grounds: (1) the ‘offense was carried out in an especially heinous, cruel and callous manner, ’ (2) the district attorney opposed his release, (3) petitioner had a history of substance abuse, and (4) petitioner lacked insight into the crime.” (Protopappas II, supra, G042075.) The Board found petitioner blamed “other people and their lack of training” at least in part for the victims’ deaths. (Ibid.) It stated: “‘We recognize that you will never, by law, be in a position to break the law in the same way that you did before but that doesn’t necessarily make you safe because arrogant people who... care nothing for others are not safe people to be around....’” (Ibid.)
3. This Court’s 2010 Decision
In his prior petition for a writ of habeas corpus, petitioner argued “the Board violated his right to due process by denying him parole because no evidence shows he poses an unreasonable risk of danger to society.” (Protopappas II, supra, G042075.) Based on Penal Code section 3041, Lawrence, supra, 44 Cal.4th 1181, and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), we examined whether petitioner posed a current threat to public safety and concluded that “no evidence support[ed] the Board’s finding petitioner is currently dangerous.” (Protopappas II, supra, G042075.) We directed the Board to hold a new parole suitability hearing “and to reconsider its denial of parole to petitioner in light of the current dangerousness standard set forth in Lawrence, bearing in mind that this court finds no evidence in the record before it that petitioner poses a current threat to public safety.” (Protopappas II, supra, G042075.)
Events Subsequent to the 2008 Parole Hearing and the 2010 Opinion
1. The 2009 Psychological Evaluation
In a report dated December 11, 2009, when petitioner was age 64, Dr. Black, a forensic psychologist, assessed him based on petitioner’s prior records and Black’s November 2009 interview with petitioner. Evaluating petitioner’s “violence potential in the free community, ” Black found petitioner had a “relatively good” prognosis for abiding by his parole conditions, because he had offers for housing and for employment as a dental laboratory technician or as a paralegal. Petitioner’s insight into his alcohol and substance abuse history had “improved significantly over time”; he had committed to never use drugs or alcohol again. Petitioner stated his relapse prevention plan was to “avoid people who drink alcohol or use drugs, ... avoid bars, ... stay engaged in work, go to church, help people less fortunate than himself, ... keep in mind the negative impact of alcohol and drugs, ” and “learn to relax” without using drugs or drinking.
Black expressed his subjective opinion that petitioner “evidenced an adequate degree of insight regarding the life crime.” Petitioner had acknowledged “he did not use good judgment in the care of the three victims. He also reported that he was arrogant because he had successfully handled close calls with patients in emergency situations in the past, but that he did not know how to handle the types of emergencies which led to the deaths of the three victims. The inmate reported that: (1) he should have referred the three victims out, (2) he did not heed his assistant’s warnings, (3) he did not call paramedics soon enough, and (4) he did not perform or know how to perform certain procedures to save the lives of the victims. He reported that he holds himself 100% responsible for their deaths and he reported that they would not have died if he had not put them to sleep. He expressed sorrow for the victims and for the victim[s’] families, and sorrow for his own family as well. He reported that he believes that his sentence has been fair and that he hopes to be able to apologize to the victims’ families in person..., and that he would like to serve the community in whatever way he could, such as speaking out on the dangers of anesthesia.”
“After weighing all of the data from the available records, the clinical interview, and the risk assessment data, [Black] opined that [petitioner] presents a relatively Low Risk for violence in the free community. His criminal history is confined to specific circumstances that appear unlikely to ever reoccur, given factors such as his age and the loss of his dental license.”
2. The Board’s 2010 Grant of Parole to Petitioner
At the 2010 parole hearing, the Board stated that, since the 2008 parole hearing, petitioner had continued to be an excellent worker and to participate in many programs, including AA. The Board, “abiding” by our order, found petitioner was suitable for parole and would not “pose an unreasonable risk of danger to society or a threat to public safety if released from prison, ” subject to the parole conditions that he “submit to random drug testing, ” “not possess or consume alcoholic beverages, ” and “not have any contact with the victim’s family.” The Board noted that the psychological evaluation stated petitioner’s “insight has improved significantly over time” and he is an “overall low risk” if released. The Board found petitioner had “exhibited genuine remorse” and understood “the nature and magnitude of the crime” and that his parole plans are “viable, acceptable, [and] realistic.” The Board chose the midterm of 18 years as petitioner’s base term “because the victim died of causes related to [an] act of the prisoner but was not directly assaulted by the prisoner with deadly force”; the Board did not add any extra time.
3. The Governor’s Reversal of the Board’s 2010 Parole Grant
Pursuant to Penal Code section 3041.2, the Governor in December 2010 reversed petitioner’s parole grant, believing “his release would pose an unreasonable risk of danger to society at this time.” The Governor based his decision on the “atrocious” nature of the crimes and petitioner’s lack of “insight into his role in these murders.”
DISCUSSION
Petitioner asks this court to reinstate the Board’s 2010 grant of parole to him. He argues the Governor’s reversal of the Board’s 2010 parole grant was unsupported by any evidence that petitioner poses an unreasonable risk of danger to public safety if placed on supervised parole.
The Attorney General argues: “[T]he Governor afforded petitioner an individualized consideration of the relevant suitability and unsuitability factors, and at least a modicum of evidence supports the Governor’s finding that petitioner poses an unreasonable risk of danger to society. Here, petitioner’s mental state and attitude, as demonstrated by petitioner’s lack of sufficient insight and understanding into the causal factors that led to his involvement in the life offense, coupled with the nature of petitioner’s offenses, is some evidence to support the Governor’s decision.”
In Lawrence, supra, 44 Cal.4th 1181, our Supreme Court recognized that appellate courts face a difficult task in trying “to strike an appropriate balance between deference to the Board and the Governor and meaningful review of parole decisions.” (Id. at p. 1206.) Lawrence therefore enunciated and explained at length the proper standard for judicial review of the Board’s and the Governor’s parole decisions: “[B]ecause the core statutory determination entrusted to the Board and the Governor is whether the inmate poses a current threat to public safety, the standard of review properly is characterized as whether ‘some evidence’ supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous.” (Id. at p. 1191.) “This standard is unquestionably deferential, but certainly is not toothless.” (Id. at p. 1210.) “‘Due consideration’ of the specified [suitability and unsuitability] 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.) In other words, the Board or the Governor may not “simply point[] to the existence of an unsuitability factor and then acknowledg[e] the existence of suitability factors..., even if those facts have no bearing on the paramount statutory inquiry.” (Id. at p. 1211.) With these precepts in mind, we examine the Governor’s two stated reasons for his reversal of the Board’s grant of parole to petitioner.
Insight into Crimes
The Governor reversed the Board’s parole grant based primarily on his conclusion petitioner lacks “insight into his role in these murders.” The Governor stated that, “although [petitioner] says he accepts responsibility” for the crimes, he blames other people for the victims’ deaths and does not “completely understand and accept full responsibility for his offenses.” The Governor based this conclusion on three grounds.
As the first ground for concluding that petitioner lacks insight into his crimes, the Governor relied on statements in petitioner’s 1984 and 2005 psychological evaluations, i.e., reports that are 27 and 6 years old, respectively. But the Governor, contravening California Code of Regulations, title 15, section 2402, failed to even acknowledge the existence of petitioner’s 2009 psychological evaluation. As noted, the 2009 evaluation concluded petitioner “evidenced an adequate degree of insight regarding the life crime” and held himself 100 percent responsible for the victims’ deaths. The Board, at the 2010 parole hearing, found petitioner understood “the nature and magnitude of the crime as shown in [his] psychological evaluations.” (Italics added.)
“All relevant, reliable information available to the panel shall be considered in determining suitability for parole.” (Cal. Code Regs., tit. 15, § 2402, subd. (b).) “The Governor is subject to the same standards as those that apply to the Board.” (Shaputis, supra, 44 Cal.4th at p. 1258.)
As the second ground for concluding petitioner lacks insight, the Governor relied on the following statements made by petitioner at his 2008 parole hearing: (1) “‘I wasn’t trained in handling the emergencies that arose as a result of something going wrong which is what resulted in these deaths, ’” and (2) “‘I wasn’t thinking clearly at the time. Things were very confusing. And because of the interplay of their systemic conditions, it caused me... to wonder.... I thought about that and dentists don’t lose patients.... I hesitated and had I done things promptly, a couple of these people may... not have died but I waited too long and that was part of — those were the elements that created my crimes.’” These statements, considered in context (Lawrence, supra, 44 Cal.4th at p. 1222), actually demonstrate petitioner’s insight into the crime: He acknowledged he caused the victims’ deaths (1) by anesthetizing patients on whom he was unqualified to perform dental work and whom he should have referred to other dental care providers (presumably specialists such as oral surgeons), and (2) by waiting too long to call paramedics for emergency help. At the 2008 hearing, “‘petitioner stated he had been ‘very arrogant, ’ thinking he was better than he really was.... He realized his ‘abilities anesthetizing these people was not what it should have been and [he] made a mistake by not preparing [himself] properly for that and [he] should have been more cautious and [obtained] more training before [undertaking] that particular type of treatment.’ He had ‘made mistakes by taking on’ the cases of the three victims, which were ‘very difficult, ’ without proper training in handling the emergencies that arose. He took ‘full responsibility for [the victims’] deaths because if they hadn’t come to [his] office obviously then they wouldn’t be dead right now.’” (Protopappas II, supra, G042075.) Thus, petitioner admitted his inadequate training and his hesitation to phone for help. By doing so, he did not shift blame, but, rather, described how his unacceptable and irresponsible behavior caused the victims’ deaths.
As the final basis for concluding that petitioner lacks insight, the Governor asserted petitioner has always adopted the version of the facts contained in his 1999 life prisoner evaluation report. The Governor, again contravening California Code of Regulations, title 15, section 2402, simply ignores petitioner’s express adoption (at the 2010 parole hearing) of the factual recitation in Protopappas I.
“Accordingly, the Governor’s conclusion that petitioner showed insufficient [insight into his crimes] is not supported by any evidence; rather, it is clearly contradicted by abundant evidence in the record.” (Lawrence, supra, 44 Cal.4th at p. 1223.)
Commitment Offenses
The Governor’s second reason for reversing the Board’s grant of parole to petitioner was the Governor’s belief the crimes were “especially atrocious because [petitioner] took advantage of multiple patients who entrusted their care to him” and took actions demonstrating “an exceptionally callous disregard for human life and suffering.” But although “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, supra, 44 Cal.4th at p. 1214.)
The record contains no evidence suggesting petitioner is currently dangerous to society. The Attorney General argues that, even though petitioner has lost his dental license and “may never have the chance to fatally drug another person as a licensed dentist, ” his purported lack of insight and failure to accept “full responsibility for multiple murders... committed with a deliberate and reckless disregard for human life creates a legitimate concern regarding current risk that extends far beyond the realm of whether or not petitioner will be a dentist again.” As we have discussed, there is no evidence that petitioner lacks insight and continues to disclaim full responsibility for the victims’ deaths.
DISPOSITION
Petitioner’s request for a writ of habeas corpus is granted. We hereby vacate the Governor’s decision finding petitioner unsuitable for parole and reinstate the Board’s grant of parole to petitioner. (Lawrence, supra, 44 Cal.4th at pp. 1190-1191 [affirming appellate court’s judgment vacating Governor’s decision and reinstating Board’s grant of parole].) Petitioner is to be released accordingly. Petitioner is not, however, entitled to any credit against his parole term for the time he spent in prison after the effective date of the Board’s 2010 parole grant. (Pen. Code, § 3000.1, subd. (b); In re Chaudhary (2009) 172 Cal.App.4th 32, 38; see also In re Carabes (1983) 144 Cal.App.3d 927, 931 [“the purpose of parole is to provide a testing period for reintegration of the prisoner into society”].) Pursuant to California Rules of Court, rule 8.387(b)(3)(A), this opinion shall be final as to this court five days after it is filed.
WE CONCUR: RYLAARSDAM, ACTING P. J.ARONSON, J.